Zambians are Attorney General’s clients not Rupiah – Hansungule

Sunday, September 19, 2010

Zambians are Attorney General’s clients not Rupiah – Hansungule

Zambians are Attorney General’s clients not Rupiah – Hansungule
By Ernest Chanda
Sun 19 Sep. 2010, 04:00 CAT

PROFESSOR MICHELO Hansungule has argued that Attorney General Abyud Shonga’s client is not President Rupiah Banda but the people of Zambia. In an interview, the Pretoria-based human rights lawyer dismissed Shonga’s claims not to get instructions from anyone for an appeal against High Court judge Evans Hamaundu’s dismissal of the 2007 London High Court judgment secured against Frederick Chiluba.

Prof Hansungule contended that Shonga was missing an elementary point of law in his argument.

“There is a big difference between President Rupiah Banda and Zambia. When the Attorney General says he got instructions from his client not to appeal the High Court decision seeking registration of the Chiluba London judgment, he is grossly misinterpreting an elementary point of law. A public lawyer like the Attorney General is there to represent the interests of the public as a whole,” Hansungule said.

“His client is not the President or Vice-President George Kunda alone. Foremost above these, he or she must be able to read the public sentiment and from there gauge public interests.

Who is Attorney-General’s client? Who instructs the Attorney General? Obviously, the Attorney General cannot go to court without instructions. This too is basic law. Every lawyer can only go to court on the basis of specific instructions from his or her client to prosecute or defend that client’s interests.”

He said as a public lawyer, Shonga should always represent public interests because he was appointed to serve the people. Prof Hansungule contended that by refusing to appeal against Judge Hamaundu’s judgment, he was fighting the public that employed him.

“For instance, a pertinent question would be ‘what would best serve the interests of the general public in a case involving registration of a judgment by a foreign court, which confirmed that millions of kwacha of the general public were salted away by the accused where that judgment is denied registration’? Clearly, it is to do everything possible including appeal because this is legally possible here,” he said.

“Because the Attorney-General is appointed by government on behalf of the people to serve not the interests of a few individuals in government but those of the general public at large, therein lies the duty to act consistent with public interests. Not appealing or taking other measures to ensure the judgment was legally recognised in the country is directly fighting the very public who employed you to defend their interests.”

He called for professionalism in important positions such as that of the Attorney General.

Prof Hansungule questioned the reasoning in the President’s call for judicial independence instead of the other way.

“In order to achieve this public interest, Rupiah Banda or George Kunda, Minister of Justice, could have their views disregarded, if they seem to be inconsistent to what is best for the public.

This is why we need professionals that are professionals in these important positions of power. Not long ago, the Chief Justice of Botswana repeatedly told the President in his face at a lawyers’ meeting that ‘Mr President, I am independent from you; I do not need instructions from you,…etc’,” Prof Hansungule explained.

“In Zambia, it is the President who tells judges to be independent and not the other way round. And prior to that, he publicly announces that he told the DPP not to appeal the Chiluba acquittal because it is a waste of money!”

Prof Hansungule attributed most of the problems to what he termed a bad constitution that the country had. He said the National Constitutional Conference (NCC) tailored constitution would be worse than the current one.

“A key problem behind all this is the imperfect Constitution. The current Constitution is so bad in some respects especially presidential power that it is not worth being called a Constitution. The one the NCC has just recommended is worse than worse. Why should power – all state power – be reposed in one man? Is he God?” asked Prof Hansungule.

“This is why it makes them drunk with power. Take, for instance, appointments of ministers in charge of provinces; the constitution empowers the President to appoint a provincial minister in a province he lost to the opposition! Why?

Only because he is president? Is this enough? Why can’t the constitution promote freedom of people to govern themselves as they wish and with whom they wish without people they would never have elected into positions imposed on them?”

Answering a question from one state advocate that the general public was saying it was he and Director of Public Prosecutions (DPP) Chalwe M’chenga who were refusing to appeal against judge Evans Hamaundu’s judgment in favour of former president Frederick Chiluba, Shonga said he is only answerable to the state and could not get instructions from an individual.

Shonga was speaking at Protea Hotel in Livingstone on August 30, 2010 after presenting a paper entitled Mounting a good appeal in Supreme Court. He said under Article 54 of the Constitution, he was only answerable to the state, and those questioning him had no mandate.

“I will answer your question from the back going forward. The people and organisations that are talking about the issue…do they have the mandate to speak for the people? How have they come to know that the Zambian masses want a certain issue? I have not heard of any referendum. The views are not from the people. Who is the client?

I will not get an instruction from Peter Zulu who walks into my office and says, 'do this'. Article 54 says the client is the state, and who is the state? It is the people who come from the constitutionally recognised institutions,” argued Shonga.

Labels: ATTORNEY GENERAL, MICHELO HANSUNGULE, RUPIAH BANDA