Guardian of our interests

Guardian of our interests
Written by Editor

The office of Attorney General and that of Solicitor General need to be defended from encroachment even under the cool salons of political manipulation. The duties and powers of these offices are well spelt out in Article 55 of our country’s Constitution.

The Minister of Justice, in this country, does not exercise the functions of the Attorney General. And Article 54 (7) is often a subject of abuse by those who want or seek to encroach on the powers of the Attorney General.

This Article makes it very clear that “in the exercise of the power to give directions to the Director of Public Prosecutions conferred by clause 7 of Article 56, the Attorney General shall not be subject to the direction or control of any other person or authority”. But it’s very clear that sometimes George Kunda, the Minister of Justice and Vice-President of the Republic, thinks he is the boss and can direct such matters. Everyone saw the role George tried to play in Dora Siliya’s RP Capital Partners Limited deal.
The Attorney General is not their personal lawyer. The role of the Attorney General is to serve as Zambia’s lawyer, in civil as well as criminal matters. He is not a lawyer for Rupiah Banda, George and their friends. He is our lawyer, a lawyer for all the Zambian people in their complexities and diversities. The Attorney General is the guardian of the public interest. And in his role as the guardian of the public interest, he is required to act independently and in a quasi-judicial capacity, representing the nation at large.

The Attorney General is entrusted with protecting the civil rights of citizens; he is not the president’s counsel; Rupiah has a counsel for that. The Attorney General is there for every one of us, MMD, PF, UPND, rich, poor, urban dweller, rural dweller, worker, peasant, businessman and so on and so forth and no matter who you are.

For us the Attorney General is a very important person; this is somebody who represents all of us, not just there to represent government policy. For this reason, we don’t need an Attorney General who is totally subservient to the president, to the political and business interests of those in government. Yes, the Attorney General has a duty to help institute the policy agenda of Rupiah’s cabinet. But the line should be drawn between having a like-minded Attorney General help institute such policy agenda and having an Attorney General who is completely subservient to the personal political and business interests of Rupiah and his friends. Of course, we want the Attorney General to help those in power to perform their duties with honour and integrity and to accordingly be in line with their policy making. And this may encompass decisions about how to set priorities, fashion new initiatives and interpret the Constitution and the country’s laws.

This doesn’t mean that our Attorney General should simply be the handmaiden of presidential policy. Ideally, the Attorney General should have the character and backbone to give the president and his cabinet frank advice, independently arrived at, when the president and his ministers are considering overstepping the bounds of what is allowed by our laws. And similarly, the Office of the Solicitor General also has a special role to play in maintaining a degree of continuity in the law regardless of changes in government.

Overall, however, it is and should be the Attorney General’s job to serve the people of Zambia, by helping the president and his cabinet abide by the rule of law.

What Zambians most assuredly do not want is an Attorney General who fails to distinguish between implementing policies and playing politics or involving himself in the dirty schemes of those in government. The Attorney General has no business harnessing his chambers to the electoral and other political and business interests of either the president or the ruling MMD.

Clearly, the Attorney General, as chief law officer, has a special responsibility to be the guardian of that most elusive concept – the rule of law. The rule of law is a well established legal principle, but hard to easily define. It is the rule of law that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties.

The Attorney General has a special role to play in advising Cabinet to ensure the rule of law is maintained and that Cabinet actions are legally and constitutionally valid.

In providing such advice, it is important to keep in mind that the Attorney General’s legal advice or constitutional advice should not be disregarded. And Article 54(3) makes it very clear that “…an agreement, contract, treaty, convention or document by whatever name called, to which government is a party or in respect of which the government has an interest, shall not be concluded without the legal advice of the Attorney General, except in such cases and subject to such conditions as Parliament may by law prescribe”.

Things have been put this way in our Constitution, the Attorney General has been given this responsibility to ensure that the public interest is well and independently represented.

But there is a tendency in this country to think that simply because the law provides that so-and-so shall be appointed by the president and so-and-so shall be removed by the president, then it means that their legal and constitutional duties are subordinated to that appointing and disappointing authority.

It doesn’t mean that if one is appointed by the president to a constitutional or public office in this country, then he is a servant of the president and should do as the appointing authority pleases. The Attorney General, although appointed by the president and can be removed by him, is not a servant of the president, he is not his personal lawyer.

Clearly, the constitutional and legal commitments of the Attorney General take precedence over loyalty to the appointing authority. Like other public officers, the Attorney General doesn’t work for Rupiah, he works for the people.

There is need for constitutional office holders and other public servants to take their duties seriously and put the interests of the people they are appointed to serve above the personal interests, political, business or otherwise, of the appointing authorities. They don’t work for the appointing authorities, they work for the people. But there is always this fear of being removed for not co-operating with those who appointed them when they want to do wrong things, when they want to abuse their offices and break the law. This is what is killing this country – this complicity in the wrongdoings of the appointing authorities.

And this is what makes the conduct of Attorney General Mumba Malila and Solicitor General Dominic Sichinga over the Dora issue exemplary. If every public officer conducted themselves in that manner, it will be very easy for this country to root out corruption and make proper use of every kwacha of taxpayers’ money.

For this reason, we highly welcome the clear position taken by the Law Association of Zambia on this issue. And as pointed out by the Law Association of Zambia president Stephen Lungu, they have a statutory duty to defend the Constitution and seek the advancement of the rule of law and the rights and liberties of all our people. Again, if they also work with the same spirit that has been demonstrated by Malila and Sichinga, the prospects for our country will brighten. It is important to stand up against wrongdoing, to oppose it, challenge it and stop it. Ignoring wrongdoing when one has a duty to challenge it, to stop it is complicity in it.