Maravi

‘Is the Attorney General a servant of the people’

‘Is the Attorney General a servant of the people’
By The Post
Sun 19 Sep. 2010, 04:00 CAT

A good servant must know who his master is. A servant who does not know who his master is, is a confused servant and cannot give the best service. This is a basic reality that those who are employed to serve our people must understand, or else they risk being irrelevant.

In the one party state, there was no difference between the party, the government and the state. The party reigned supreme. This was one of the weaknesses that led our people to demand a change to that system of governance. Today, we have a multi-party system. This system is supposed to guarantee our people’s democratic rights. It is not meant to serve the interests of the ruling party. But this seems to be the case today.

It seems that the wishes of the ruling party are paramount and superior even to the best interests of the state. There is an apparent failure to distinguish between the government and the state. The government is a transitional administrative structure that is ushered in through elections from time to time.

The state is the permanent entity that defines the nation. This is what we call Zambia. This Zambia, from time to time, hires a government to run its affairs for renewable periods of five years. This is how our democracy is organised. The government is supposed to serve the people and not vice versa.

In other words, whatever the government does must be in the best interest of the people or what we generally call in the public interest. But this is not what is taking place in our country today. The interests of government and its desire to retain power at any costs seem to supersede the dictates of public good.

This is the problem that Professor Michelo Hansungule is dealing with when he addresses Attorney General Abyudi Shonga’s refusal to appeal against judge Evans Hamaundu’s refusal to register the London High Court judgment against Frederick Chiluba.

Shonga has told the nation that his refusal was based on the instructions of his clients. The question that he has not answered is: who, in essence, is his client? Is it the government serving its party political interests or the state serving public interests? How does Shonga’s refusal to appeal a wrong judgment that compromises public interests serve any public good?

This is the issue that needs to be addressed. The Attorney General is not supposed to be a party cadre who carries out the wishes of the president regardless of their legality or illegality and effect on public good. Granted, he is an appointee of the president and in our system serves at his pleasure. But that is no licence for the president to use the Attorney General to get whatever decision he wants.

Like any ordinary lawyer, and more importantly the Attorney General, whose client is the Zambian public, is not supposed to carry out instructions that are wrong or in the case of the public, decisions that are against public good. Although in theory, the Attorney General is a lawyer from the government, the guiding ethos for his office is public good. He should never do or sanction anything that goes against public interests.

Hiding behind the fact that his client is government does not absolve him of the obligation to protect the public against abuse of power by the government. The Attorney General is not obliged to follow unethical or unconscionable requests from his client, the government. And the reason for this is very simple to understand. It is assumed that government always acts conscionably.

And for that reason, any instruction that is unconscionable goes outside what a government should do so that an Attorney General who is supposed to be serving the government in the public interests is not obliged to do wrong in the name of serving government as a client. What this means therefore, is that an Attorney General who does wrong can never hide behind acting on the basis of instructions.

This is because the only instructions that a government should give are those that are in keeping with public good. If instructions go outside public good, they cease to be legitimate government instructions. A good Attorney General must then take the opportunity to plant his flag of principle in the ground and stamp his authority.

He should not be driven by the illegitimate wishes of a government that is prepared to compromise public interests for political expediency. What we have said so far makes sense in relation to general legal advice away from the courts of law. But for matters that are in court, the Attorney General cannot be heard to say that he has been instructed to do x, y or z.

Instructed by who? We ask this because it is the Attorney General who is a chief advisor to the government. And the government is not the legal advisor to the Attorney General. The relationship of the Attorney General and the government is not the same as the relationship of an ordinary client with his lawyer.

This is because an ordinary client has a personal interest in the matter that a lawyer may be pursuing for him. This is not the same in the case of the Attorney General. The government or more specifically the president is not supposed to have personal interest in the issues that the Attorney General is pursuing on behalf of the general public.

A private client can decide to forfeit his interest because those interests are private. But a president is not supposed to forfeit public interests because they are not his to forfeit. This, therefore, raises a question: when the Attorney General says he is acting on the instructions of his client, what does he mean?

To us, it seems that the Attorney General has abdicated his responsibility to safeguard the legal public interests and has chosen to ride with the interests of the president and his political fortunes. We say this because it is very clear that if the Attorney General was acting in the public interest, he could not defend judge Hamaundu’s decision.

Furthermore, he could not, with a clear conscience, refuse to appeal a matter with such far-reaching implications. The registration of United Kingdom judgments in Zambia is not a matter that is only restricted to Chiluba’s highly politicised case. It is a decision that has implications for other areas of our endeavours as a nation. It is common knowledge that Rupiah Banda’s government has been boasting about bringing investment to our country.

The Attorney General knows or should know that a lot of the investment agreements that are concluded in our country involving huge amounts of money require the application of English common law and they also usually choose the United Kingdom as a seat for dispute resolution whenever disputes arise. The decision of judge Hamaundu which has refused the registration of UK judgments has called into question a number of these agreements which include UK law as an acceptable neutral law.

If the Attorney General was acting independently, he would be anxious to ensure that judge Hamaundu’s clearly wrong decision does not become the reason why this country begins to lose the opportunity to create employment by attracting investments. This is what happens when important decisions in the country are not made objectively but driven by shortsighted narrow interests.

We have no doubt in our minds that the Attorney General has a conscience and he knows that the decision he has made in the Chiluba case is not in the best public interest. But for one reason or the other, it is convenient for him to go along with the wishes of the government. This is not the way things should be.

The Attorney General’s office should be a strong office that is capable of safeguarding public interest with fear of recrimination. This office is just as important, if in some respects at least, not more important than the office of the Director of Public Prosecutions. It is wrong for this office to be run at the whims of politicians whose interests are not always consistent with public good.

As Prof Hansungule has observed, the only way that the Attorney General is going to serve the public interest is to recognise that he is a public lawyer and therefore his duty is to represent public interest and serve the people. This is a call that his office makes on him. If he does not have the courage to do this, he is in the wrong job and a danger to the public.

Labels: ATTORNEY GENERAL, MICHELO HANSUNGULE, PRESIDENCY, SEPARATION OF POWERS

posted by MrK @ 10:29 PM