Attorney General’s office: A casualty of politics

Almost two years after the new Constitution was adopted, President Mugabe has finally, appointed the Attorney-General.

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Dr Alex Magaisa

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magaisa

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In Advocate Prince Machaya, Zimbabwe now has an AG who is not only experienced but commands respect among his peers.

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This is a welcome development as the delay in appointing the new AG was unwarranted.
\nIt is important to explain the two new chief legal officers of the State and the difference in their functions to prevent confusion among members of the public.

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Advocate Machaya fills an office left vacant when the former AG, Johannes Tomana moved over to become the new Prosecutor-General.

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There are now two constitutional officers who represent the State in legal matters. There is the Prosecutor-General, who represents the State in criminal matters and there is the Attorney General, who represents the State in civil matters and generally provides advice to the State in legal matters. Previously, both functions were carried out by the Attorney General.

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Now however, when the State is prosecuting alleged criminals, it is the PG who carries out the prosecutorial functions but when the State is defending a constitutional application, a civil matter, this function is carried out by the AG. The AG is the chief legal adviser to government so when legal issues arise in the conduct of government, it is to the AG that they turn for advice.

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Why was there are split in functions? The origins of the split in functions are to be found both on the grounds of constitutional best practice and political contestation that characterised the constitution-making exercise.

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I set out the politics in more detail in the book but suffice to say that the AG’s office had been one of the most bitterly contested during the tenure of the GNU. The opposition parties were not happy with the incumbent AG, whom they accused of bias towards the ruling party. The AG himself did not help matters when he appeared in press reports confirming his political allegiance.

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Thus the AG was seen by the opposition as a potent political instrument in the hands of Zanu PF. The AG was often accused of selective application of the law and bias against opposition supporters.

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Along with the central bank chief, it was often said that the AG’s office was one of the so-called “outstanding issues” during the period of the GNU. It was never resolved as the incumbents retained their positions. Zanu PF had defended both public officers throughout the term of the coalition government. Politically, the MDCs had lost this battle.

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When the matter came up during the constitutional negotiations, it was an opportunity to initiate reforms for the long-term. Establishing two offices would mean that the AG would be left with civil functions but that a new PG would assume the criminal functions. This was seen as a roundabout way of trying to get rid of the incumbent AG.

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In the end, the split in functions was only agreed on the understanding that the incumbent AG would have the option to move over to become the new PG. Thus in the case of all parties, focus was on the criminal functions, with less emphasis being given to the civil functions of the AG.

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This is why s. 19(2) of the Sixth Schedule of the Constitution provides that the existing AG would continue in office as the new PG. Needless to say, while the separation represent success for the MDCs who demanded it, politically, this was a victory for Zanu PF, because they had managed to protect the incumbent AG’s role as the prosecuting authority since he would assume the new role as the PG.

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But why did the MDCs take this gamble and concede on this issue in the end? We hope to explain the reasoning behind this compromise in the book, a gamble that didn’t work.

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An important consequence of all this is that the AG’s office became a serious casualty of the war of attrition between the negotiating parties. Efforts, towards the end to explain that a big mistake had been made fell on deaf ears.

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The big problem is that after all this fighting, the AG’s office was left severely weakened and vulnerable, compared to the PG. All efforts were expended on strengthening the independence of the PG’s office at the expense of the AG’s office.

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Compared to the PG, the AG does not enjoy the same protections and guarantees of independence as his counterpart. The AG’s office was left with very little guarantees of protection and independence, notwithstanding the fact that the AG still has a very important constitutional role that also requires independence and safeguards. The weaknesses are as follows.

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• First, the AG is appointed solely by the President without any consultation whatsoever. By comparison, the PG is appointed by the President on the advice of the Judicial Service Commission using the same procedure for the appointment of a judge (s. 259(3)).

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This is a more robust procedure, which involves public nominations and interviews. There is, therefore, more transparency and accountability in the appointment of the PG compared to the AG.

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• Second, the AG’s tenure of office is highly insecure as he can be removed at any time by the President in terms of s. 115. By comparison, the PG enjoys more security of tenure as his removal is more onerous and can only be done using the procedure for the removal of a judge.

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This procedure requires the appointment of an independent panel which investigates and makes recommendations to the President. Unlike the AG, the PG’s tenure is not dependent upon the whim of the President.

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It is also clearly stated that he enjoys a term of six years, renewable once meaning that he has a maximum tenure of two terms of twelve years collectively. No such provisions apply to the AG whose tenure is vague and insecure.

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The AG may resort to the protections guaranteed under the declaration of rights, such as s. 68 which provides for the right to fair administrative conduct, but that is not as sure a protection as having clear procedures set out just like it is for the PG.

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• Third, there is virtually no provision in respect of the AG which deals with his conditions of service, including remuneration.

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On the other hand, s. 259(8) makes provision that the PG’s conditions of service must be provided for in legislation and significantly, that they cannot be reduced during his tenure of office. The source of the PG’s remuneration – the Consolidated Revenue Fund is also clearly stated. None of these provisions apply to the AG’s Office.

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• Fourth, s. 259 clearly provides that legislation must provide for the appointment of a board to employ persons to assist the PG in the exercise of his functions including their qualifications, conditions of service, their independence, etc. This provision provides a firm legal basis for the staff who work in the PG’s office. There is virtually no similar provision in respect of the staff at the AG’s Office.

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• Fifth, the PG has the power, in terms of section 259(11), to direct the Commissioner-General of Police to investigate and report on anything which in the PG’s opinion relates to an offence. The Commissioner General has a mandatory obligation to comply with that direction. This is an important power which ensures that the PG has a role in the investigation of crime where police have not taken any action. This is an important power in the hands of an independent and professional PG.

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However, the AG does not have similar powers, notwithstanding the equally important role that he holds as an advisor to the State. The AG’s powers do not have to be restricted to the police but could actually be broader than the PG’s powers in that he could direct anyone to carry out investigations or report to him on any issue which would be useful for purposes of advising government.

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The overall impact of all these differences is that it now appears that between the PG and the AG, the latter is of lesser and weaker status in terms of constitutional protections and guarantees. It is less protected, has less authority and is less independent compared to the PG’s Office.

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This is unreasonable because it assumes that the job of the AG is merely to be a lackey of Government and does not include functions that require independence. Yet it is very clear that its functions are no less important and do not require any less independence and protection.

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One of these functions in particular is to “represent the Government in civil and constitutional proceedings” (section 114(3) (e.)) This means if a criminal matter is referred to the Constitutional Court because it involves a constitutional question, the PG would have to hand over the matter to the AG. The AG plays a critical role in litigation over the Constitution and therefore over its interpretation.

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Likewise, if the State is sued, the AG has to defend it in court. Giving advice requires the advisor to have independence. However, the AG’s Office that is envisaged under the current s. 114 is very weak and does not have the protections that such an office should have.

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There is no justifiable reason why the AG was made weaker than the PG in terms of their protections and independence. This is a needless cost that requires rectification.

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When I saw the final draft Constitution, I thought a big mistake had been made and proposed that it should be rectified, giving exactly the same reasons as stated above. However, for some reason this was not taken on board.

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The result is that we probably have the weakest AG in history and perhaps anywhere else in the world, notwithstanding the critical role that such an office ought to play in a democracy. I have no doubt that the AG’s office was one of the biggest casualties of the political battles in the constitution-making process.

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The irony is that having set out to split the functions of the AG to enhance independence, the whole process created a strong PG but left the AG a lot weaker than it was before the start of the process.

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Nevertheless, I wish Advocate Machaya well in his new post. He will have to work his best under the circumstances but if ever the Constitution is to be amended, this is one area that requires correction because it benefits no-one to have a weak AG.

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Dr Alex Magaisa can be reached on wamagaisa@yahoo.co.uk. You can also follow his blog: https://newzimbabweconstitution.wordpress.com/