Monday, October 3, 2022
Opinions

ON THE AG’S REMOVAL FROM OFFICE: AS LORDDENNING QB WRITES

Perhaps, in the preface, I must start by taking care of the ensuing debate in which others are saying the AG is not amenable to removal from office and that he is Constitutionally entitled to serve a five-year period. Without wasting anybody’s time, let me indicate out rightly that such is a misinformed, misguided and/or misconstrued position.

In the main, let us begin front our discussion on that issue with what the Constitution lays down and I quote the relevant provision of section 98(4)&(6).

98(4): “The office of Attorney General shall where it is held by a person employed in the public service, become vacant after the person holding that office has served for five years, or on his or her resignation or retirement or up to the end of the President’s term of office whichever is sooner.”

98(6): “The Attorney General shall be subject to removal by the President on the grounds of incompetence, incapacity or being compromised in the exercise of his duties to the extent that his ability to give impartial legal advice is seriously in question.

It is abundantly clear that those holding that the AG cannot be fired are relying on the reading of section 98(4). But then, notwithstanding that provision, section 98(6) provides a condition of relieving an Attorney General of his duties. It comes across clear that section 98(6) was answering the following question: Should an AG be left alone even when he is incompetent? Even when he is incapable of executing his duties accordingly? Even when he is compromised and acting against the interest and policy direction of the administration? And the answer provided by section 98(6) is a big NO and it does so by providing circumstances which may result into the AG being removed from office.

In fact, a look into history can be of aid here. Under the same 1994 Constitution, the following Attorneys General served less than 5 years and got replaced for whatever reasons varied as they may be:

Wehnam Nakanga: He served as AG from 1995 to 1995 (about 1 year) during Bakili Muluzi tenure.

Collins Chizumira: He served as AG from 1995 to 1996 (about 1 year) during Bakili Muluzi tenure.

Cassim Chilumpha: He served as AG from 1996 to 1998 (about 2 years) during Bakili Muluzi tenure.

Henry D. Phoya: He served as AG from 2003 to 2004 (about 1 year) during Bakili Muluzi tenure.

Ralph Kasambara: He served as AG from 2004 to 2006 (about 2 year) during Bingu wa Mutharika tenure.

Maxon Mbendera: He served as AG from 2011 to 2012 (about 1 year) during Bingu wa Mutharika tenure.

Examples are still available but I end it there.

The big questions, therefore, are

1. Was this AG incompetent?

2. Was this AG incapable?

3. Was this AG compromised?

INCOMPETENCE

At work, incompetence basically means failure to execute roles, duties, responsibilities etc successfully. As a principal legal adviser to the Government, the AG bears the duty, responsibility and role to provide competent legal advice to the Government. He also bears the duty to represent Government in civil litigations and competence in this regard is measured on the successes in such litigations. On a number of occasions, the AG has advised the Government wrongly on matters of law. In some cases, he has provided opinions that do not fit the stature of legal advice properly so-called. Examples are replete. Remember the poor advice he gave to MEC which later turned out to be a misadvise when the matter went to court? Do you remember his letter which was claimed to be legal advice in which he said according to section 75(1) of the Constitution the Electoral Commission ceased to exist when the President fired two Commissioners? Do you remember the outcome of that case in the Court? Do you remember that his letter which he said was a legal opinion did not even have (a) background facts; (b) issues inviting the legal opinion on; (c) analysis of the applicable law against the background facts; and (d) open-ended options from which the advised officer could take an option. Do you remember that I criticized him on the same and I said that his letter is not legal advice per se? Well, examples are plenty. And that entails incompetence on his part.

CAPACITY/CAPABILITY

Generally speaking, in the sense of the AG job, capacity may entail possession of qualifications, ability to apply the knowledge, mental and physical fitness to execute the task. The fired AG was well-qualified and has the mere ability to execute the task. He is knowledgeable. His physical fitness is unquestionable. I don’t know about his mental uprightness though.

BEING COMPROMISED

Among others, being compromised is when the ability to be objective has been damaged. During the Presidential Election court case, the AG is on record to have requested the Court fire the MEC Commissioners. After the court case, he is on record to have suggested in a media interview that the President should fire the Commissioners. Fast forward into becoming an AG, he advised the President that firing the Commissioners was an illegal adventure. Truth being that it was not an illegal adventure. That aside. Let consider another incident: Do you remember that when the Commissioners sued the Government the AG did not enter any defense? He abrogated his duties. His claim/justification was that the President did not heed to his earlier advice therefore he had nothing to argue in court on the matter. That is being arrogant. His allegiance shifted from Government to the Commissioners in this case. That is being compromised.

As I have said, examples of his incompetence and compromise are plenty. In the face of that, no reasonable administration can maintain him as an AG. In fact, his firing was long overdue. I wonder why the President took this long actually.

Senior Editor
the authorSenior Editor