Attoney General Mumba Malila
Attoney General Mumba Malila
By Dr. Chiyaba Njovu

Questioning Judicial Judgements – Justifying the role of the Attorney General

Over the past few months, I have been following with interest the happenings among our learned members of the Judiciary. There seems to be so many Schools of thought in interpreting the law by our learned colleagues and this brings into ridicule the role of the judiciary. How independent can such an uncoordinated team of experts be? Who do we as lay persons believe? Is there any significant merit in the judicial rankings or they can also be interpreted as personal opinions without any reference to legal authorities?

Well, why do I as a layman raise these questions? The case of legal interest to all of us who see our government as an organised system built on principles of professionalism and good governance. I raise this point because I know the role of the Attorney general in government is to guard against legal blunders by our Ministers and other non-legal experts holding constitutional offices. In this regard I was quite impressed with the evidence that was adduced by the Attorney General and his firm statement that the Attorney general’s advice is supposed to be taken very seriously. That to me made a lot of sense and I saw Dora Siliya’s resignation as a positive step towards cementing our belief in our existing legal instruments. I was very impressed that our system has cemented in itself checks and balances that could inspire confidence in our government instruments among the citizenry. dora5

To my surprise, when I read the judgement by judge Musonda after the judicial review, I was taken aback and wondered whether our judicial system has any form of consistence in its instruments of delivering justice. First of all, the Dennis Chirwa tribunal had Supreme Court judges who made their findings clear with their justifications. I thought they were quite thorough and clearly advised government on the dangers of ignoring the Attorney General’s advice.

If my basic understanding of Cabinet is anything to go by, the Attorney General is a non-politician who sits in cabinet for the sole purpose of providing legal advice on all government policy decisions and contractual obligations. It is for this reason that erring Ministers are never sued in their personal capacity but through the Attorney General’s office. Our understanding of this system is based on the fact most Ministers are non experts in law or do not need to possess expert knowledge as a requirement for their appointment. The attorney General is an expert. If these expertise can be overlooked with impunity, then why do we contract such an expert as a constitutional office holder?

This brings the question I would like answered by judge Musonda, if possible, or any legal brains out there. If the Attorney General advises against government committing itself to a particular transaction but his/her advice is overlooked, how do we then handle any consequences arising from such an oversight? Would we expect the Attorney General to defend such a case on behalf of government? What morale standing and conviction would he/she have in defending such a case?

To me, this is what has cost our governments huge sums of money at the expense service delivery and I beg our legal brains out there to stand up and advise if such anomalies should be allowed as a norm in our society. I strongly feel that there is no justification for any Cabinet Minister to disregard the Attorney General’s advice and that the Attorney General’s Office is a mandatory constitutional office and not a talk shop. We need to respect our Constitutional Offices irrespective of our position in Society and that must start from our top leadership. I would implore our learned colleagues to stand up and make this call for the benefit of the nation. We need a team of people who can genuinely work together in an honest manner and the case of Dora Siliya vs Mr. Mumba Malila must teach us a lesson. I do not see how Dora Siliya could work with Mr. Malila amicably. This must be redressed and the appointing authority ought to look at this issue in the interest of the nation. Our country cannot afford further litigations and loss of money due to avoidable transactions and yet we are so quick to dismiss service delivery chores with impunity. We need to be magnanimous and bite the bullet when need demands it. Something must give – either we govern through friendships as a nepotistic team or we govern on constitutional provisions and respect for the law of the land.

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43 COMMENTS

  1. This article brings some good questions which authorities need to answer and i totally agree,the AG is a constitutional office not a ‘talk shop’.
    The AG is appointed to give expert legal advice & guidance to our learned & illiterate govt leaders on how they run their affairs in line with the constitution so it is not right for any Minister to disregard advice given by the AG so in this case,the supreme court judges were right in their deliberations that Dora Siliya erred and it is rather strange that a high court judge overturned the decision made by his superiors in which case,there is a total mess in the entire legal system and there should be a major overhaul.

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  2. thats the price we pay for having the un learned holding the highest office and leading the learned. wonder what the future hold for our country,sad indeed.

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  3. Its refreshing to read such a detailed and logical article on the Dorah Siliya saga. Lets hope Teta, Shikapwasha and even the Law Association of Zambia will comment on this aritcle.

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  4. These are the same questions we have been raising on the site ever since the Dora Siliya case. You dont need glasses to observe that the justice scale in Zambia is too slant. Someone really has their weight on one side! Guess who?

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  5. A Njovu whatever Doctorate you hold, your blog entry has only exposed how mischievous axiomatic street cadre you are. You have exhibited it all here that you are failed none reasoning blog with zero ability to interpret and comprehend administrative and constitutional matters.None of the presiding justices in the tribunal were there hearing to submissions and making recommendations as Supreme court justices, but as tribunal commissioners.Tribunals are administrative forums for producing recommendations and not pass adjudications.This is an elementary legal reasoning that should not confuse a learned person excerpt kids kids Jigga turned internet marauders.

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  6. Why do i call this njobvu a “mischievous axiomatic street cadre” is because he has tried to stay knowledgeable and straight coming in his lies and confusion on legal matter unique from his legion of cyber cadres here like Jigga.

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  7. Senior Citizen or should I say MMD most brain washed cadre, the issue is about the office of AG, do we need it if his expert advise can be ignored with impunity. Not those silly rantings of yours.

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  8. Disregarding a bad AG advise is not unconstitutional and has many precedences in commonwealth Government systems.It was in 2006 at Mongu bluegums on the campaign trail when late Mwanawasa told Sunday Nkonde to resign from his position for misleading Government and not serving his administration interest. when Levy got to Lusaka, he mobilized cadres who matched to plot one then what followed was exit of Sunday Nkonde.AG like and technocrats make bad decisions too and judicial activism is part of maturing democracy.research on the USA justice systems, the federal AG office and the many commissions or tribunals conducted.

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  9. Sometimes if you don’t understand or like something doesn’t make it wrong. In latin theres a saying of people that have nothing intelligent to say always using Argumentum ignorantiam(basically making arguments out of ignorance). What you have written just translates into’ I don’t like the judgement so I will attack the AG on his efficacy just because’. Well written article but of little substance and little intelligence. Am sure your doctrate is nothing to do with Law but this article will probably appeal to people that think numbers count for justice

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  10. Crystal clear,

    You PF kaponya be advised that in law assumption is never basis of judgment.Second know that AG advise can be rejected if its found to be not serving best national interest. research on many precedences.

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  11. Senior Citizen – you seem to have a big problem in your perception of things. You may read but you obviously have no brains to understand or choose not to. This article is very clear and simple – if you can ignore the AG’s advice, then why contract him? If you think he erred, why not correct him and bury the case at Cabinet level? Why constitute a tribunal and disregard its advice as well? Please let us stop being misled by wrong doers for this will come to haunt us long after Dora and RB have gone. You need to sow the right seeds for good governance or your children will be fighting the same wars for years at the expense of development.

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  12. Chiyaba Njovu’s article points out the fact that the AG is a legal expert while Ministers are not necessarily. You bloggers who say that the AG’s advise can be ignored/rejected when it is not serving the best national interest have not indicated whether the national interest can be served through illegality and who in that case makes the call.

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  13. ‘Senior Citizen’ , Suggesting that Supreme Court justices can make trimunal hearings and recommendations that can be overulled by their junior in his capacity as a High Court judge is simply confusion. If the case of Dora Siliya was taken to the supreme court, should I not assume that the Supreme Court would rule according to their findings and judgement in the tribunal hearings?

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  14. SENIOR CITIZEN must be a real die hard MMD stooge.he is type of a guy who will convince you that the manda manda’s his masters ripped us off are actually white and not black and were meant to be ambulances.the supplier just erred.whatever vicious arguments you putting across my bro the writing is on the walls.you are living on borrowed time.

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  15. Only a sycophant like senior citizen can think the office of the AG serves no purpose in the running of our beloved country’s affairs. I say this due to the fact that it’s so clear that the Dora case has caused a lot of harm to the judiciary. The judiciary has lost respect and faith people of Zambia had in it. It’s really sad that the wrongs in the judiciary that are noticeable even to a grade one pupil are being defended by the learned people like senior citizen. This is just showing how our country has been corrupted by these selfish people who agenda is to satisfy the interests of their families and not the Nation. Any way we are comforted that 2011 is very near as it’s the year of reckoning. MMD and RB will pay.

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  16. I hate to break it to some of you but Senior citizen is right, you people opposing him have zero legal training or understanding. I think you are mistaking Village headmen for judges. You emotions and resentment for Dora are clouding your objective reasoning. Theres no AG on this planet That sues anyone for not taking advice and claim for it to be unconstitional. Why this simple fact cannot be comprehened only YHWH knows. Advice is advice it’s not a contract. Some people are going as far as crying illegality not even knowing what illegality means. Judges aren’t like politicians they don’t take into account grieving emotions even if you vote out MMD the legal precedent will always be there and has to harmonise. I

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  17. Senior syncophant/ brain washed MMD cadre so to you Dora committing Zambia to a 2billion payout to RP is in the national interest? I think you have single cell in your cadre brain.

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  18. #17 ba maureen me too sometime i do miss LPM he stood for justice. and in the samw way the AG has stood for justice he doesnt agree with what transpired over Dora. see the post for today and yesterday…

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  19. The incredulous nature of greed can’t be better illustrated than it is in this matter. Malila was busy defending his stance about how, in any government contract, ‘inexcusable it is to disregard his advice’. The tribunal judges, in the Dora Siliya’s case, in their findings went as far as stating that non compliance to the AG’s advice could effect and lead to impeachment proceedings against the President. One would have easily been excused for overlooking the obvious misrepresentation of such an overstretched conclusion on the part of the tribunal judges serve for their philosophy of allegiance. But to soon hear that the very same ‘high opinion’ could lead to such costly litigation against the state is very disturbing and leaves little room for sympathy for the AG and those…

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  20. This is water under the bridge but the debate is welcome. One good thing about law is that it needs continual development and ammended to avaoid any confusion whatsoever. The law is made by politicians in the Legislature and executed by the Executive. The role of the judiciary is to interprete the law. None of these arms of government are infallible and all have to make continuous adjustments. Each arm has legal minds to guide it. In parliament there are draftsmen who word and write the law in such a way as to express the intentions of the politicians without loop holes or ambiguity (an impossible task). The executive has the AG to help. The AG also supervises the DPP and is assisted by the Solicitor General. The Judiciary is advised through the presentations by the members of the bar.

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  21. Conflicts are bound to arise between these arms. But this is healthy in a democracy as long as one arm does not ride rough shod over another, like what happened in Pakistan under Musharaf. Several high profile terrorist trials have been scuppered by the judiciary in UK under human rights legislation as interpreted by the bench to the chargrin of the executive. In the US, Pres. Bush used Guantanamo Bay to ‘hide’ the ‘enemy combatants’ from the US jurisprudence. These conflicts are everywhere and what happened in Zambia is not unique. When Malila was sworn in Dr LPM SC advised him that it takes 99 years to train a lawyer and he should be humble to learn. In the Dora saga, Malila’s opinion is taken as sacrosanct by Dora’s enemies but this is not the case at all.

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  22. Mr Njovu, The AG must not act as though his opinion is infallable. The fact of the matter is that govt is bound to seek his opinion but that does not make his opinion fact or promise a water tight position. The AG’s sdvice must be sought by all means and yet that does not limit govt to seek advice from elsewhere. To do so would be to pretend that our AG for instance has an all round capacity to handle any matter no matter how complex. That is just not reality.

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  23. The question has been asked: ‘What happens when the AG’s advice is ignored and the government is sued?’ I retort: When the government has followed the AG’s advice but is sued and loses the case in court, should the AG resign? Every lawyer knows that they will win some and lose some and sometimes the judgment or hunch, call it what you will, of the client is better than the ‘learned mind’ of the attorney. The Zambian and indeed UK constitution does not say that the AG’s advice and opinion are ‘legally binding.’ What the law requires is that the AG’s advice should be sought. If the AG advises that what govt. is about to do is illegal then that is a different matter if govt. fails to comply. But in Dora’s case, the AG made recommendations and suggestions. That surely is not…

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  24. When the former British PM, Antony Blair took Britain to war against Saddam, he sought advice of the AG. The AG advised that a UN resolution should be in place. There was no ‘actual resolution’ but the UK govt. re-interpreted an exisiting resolution as good enough for the decision to wage war. The jury is still out on that case and one day, who knows, someone may win a case against UK and USA for waging an illegal war, notwithstanding that an onoxious tyrant is history!

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  25. To put it lightly, can our AG advice stand before a legal team of for instance Barclays Bank. Can his advice weigh up just because he is AG? Some are quickly yet blindly able to say yes even if I were to tell them just yesterday I was conversing with Malila about some herd 5 herd of cattle he wants to acquire. He probably knows more about cattle than contract law. He probably has spent most of his time in civil service. Certainly his advice cant be the best. Govt must seek the best advice even if it means disregarding their own AG’s advice.

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  26. #22, 23,24& 25. Please note that no one saying that the AG is infallible. The article is simply querying how govt goes about reconciling differing legal opinions. For example, if Dora Siliya did not agree with the AG because she believed in some legal advice from attorney outside govt, then that should have been tabled in Cabinet for Cabinet to decide whether to consult LAZ as a body or seek further advice from a team of other lawyers. All this could have been done in the best interest of the nation without Dora going ahead into making decisions whose consequences she may not handle and that could prove costly to the nation. That is the argument here and the AG is a constitutional office holder for legal advice is the first point of call. Like him or not that is the position.

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  27. The question I would rather ask is ‘what if the AG’s advice is wrong?’ The best advice must be sought, yes without completely disregarding the AG’s advice. When the AG is not in line with govt’s position, he has the option of resigning. He cant proceed against his client’s wishes. After all the AG has vested Authority.

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  28. The worst thing that could happen is if the AG has no govt backing, as in the case of DORA case. The AG LITERALY chose to testify against his client! How many would tolerate such a client. The current case with ABSA, do you suppose that govt will trust this AG? Of course not, because he has proved to be unreliable to put it simply. The AG’s best thing to do if at variance with his client(govt) position is to resign. H e chose instead to infact testify against his client. That is completely wrong in principle.

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  29. The underlying principle is that the best opinion must be sought and often times tha AG’s advice is not the best. There is enough evidence of this assertion.

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  30. #29 & 30, yes, the best legal advice must be sought and that is what is articulated in #28. No one says the AG’s opinion is the best but there are ways that he could corrected without tarnishing the image of the judiciary and costing the nation huge sums of money like in the Dora Siliya case. Do you Us$2million is small change in a country like Zambia? What valuations could RP capital when the assets were valued not too long ago when the then PTC was split into two? We should be honest and act in the interest of our country and not look at short term gains which will never last.

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  31. #29 anonymous. I truely think This whole tribunal wasn’t brought because of dora’s accusation but it was brought because Dora angered some people within government. I think Mr harrington was some sort of stakeholder in the way companies were chosen and by Dora changing that with RP capital is what angered him. What buffles me and leads me to belive this is somehow true is on how Mr harringtone selectively only see’s dora’s wrongs alone and ignores other ministers. The problem with the government before or present is that they always award contracts to the same companies and when that changes stakeholders lose benefits

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  32. #32, whatever the cause of the complaint, we need to follow the law. In fact that is why KK had that leadership code which clearly prevented politicians from running business or bidding for govt contracts thereby preventing the inevitable conflict of interests. This is what has led to these problems but obvious dubious Chiluba removed that on purpose to facilitate stealing – his profession. The consequences are now here, we are wasting time and money while our nation is dying of basic services that could easily be paid for from the money being wasted.

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  33. He said problems in Zambia were as a result of excessive concentration of power in the presidency adding that his party would clip those powers. Sondashi said Parliament and the judiciary could not flourish in a country where the President enjoyed excessive presidential powers.

    “That’s why you see when the President says, uyu (this) Dora is the best woman I want to be in government, what has happened? … Everyone, including judges, is fearing the President. Judges are finding ways to acquit Dora,” Sondashi said. “Follow me very carefully, I am the only one who is prepared to reduce presidential powers when I become president. Once we reduce presidential powers my brothers and sisters, this country will be a very progressive and developing country.”

    Sondashi said excessive…

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  34. Sondashi said excessive presidential powers undermined development and good governance.

    “The President is easily compromised because of being both Head of government and head of state. The current arrangement makes the President the dispenser of patronage which potentially makes him corrupt,” Sondashi said. “We advocate the separation of functions of head of state and head of government with the creation of position of prime minister as head of executive powers to run government. The President must remain without executive powers and should not be political. If government does not move. National Assembly can move a vote to remove the prime minister with his government. But under the current arrangement, you can’t remove a president from governing because he is head of…

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  35. If you read Sondashi’s message then you will agree with the author of this article that respecting constitutional offices must start with the President. Cut presidential powers and we shall have our country moving forward.

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  36. Sad I had to come in this late. On the “If my basic understanding of Cabinet is anything to go by, the Attorney General is a non-politician who sits in cabinet for the sole purpose of providing legal advice on all government policy decisions and contractual obligations“, I am with you on this one. Unfortunately, it appears like the MMD GRZ wants a boot licking AG who is expected to be a YES MAN all the time even by compromising his legal education.

    This mentality is what has killed Zambia and causing us not to develop ever since MMD took over power from KK and UNIP in 1991.

    I was hoping Parliament will be given ratifying powers by NCC, but it appears that nothing of this sort will happen this time around.

    Bottom line is kick MMD out in 2011.
    _
    Matthew 6:33 + KJV…

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  37. Once Bottom line is kick MMD out in 2011 is successful, then a caring GRZ can be allowed to correct all the anomalies that are answers to your questions above Dr Njovu.

    As of the now, I do not see the importance of the AG’s office in terms of advising Ministers for nothing. Such warrants the post to be scrpped to save money in this time of the global economic crisis.

    Nice Article indeed and take careful care.
    _
    Matthew 6:33 + KJV Bible

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  38. If you have any common sense, you can see that most people agree with the authopr of this article. Why don’t you people who sit with RB ask these questions so that your president comes out with answers. You have let your president down and now everybody thinks MMD has no clue about governance. The author of this article could even be an MMD member. He is simply trying to help your party stay alive in a constructive way but you can’t see it. Listen and learn and stop surrounding yourselves with party cadres such as Teta and Mulongonti – the two most useless ministers. Maestro Hehe has always argued consistently about his preferred party UPND and is respected by the leaders. But MMD prefers party cadres to your real intellectuals – good luck and wait and see.

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  39. #33 I fully concur with you – I also have serious suspicious over the possible vested interest of Mr. Harrington — notwithstanding any legal blunders committed by Dora in the process. I remember Dora making serious allegations against Mama Maureen in an attempt to defend herself – Mama Maureen has remained suspiciously quiet.

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  40. #41, yes, she has no basis to argue with a fool. Why diddn’t she tell the courts specific issues for the courts to subpoena Mrs. mwanawasa. Dora was wrong and she shouldn’t have been reappointed just like Mabenga should never have been reappointed. The problem is RB is being managed by illiterates such as Mulongoti and teta and the rest of the clever Ministers will flee. The flood gates are open. Defence Minister resign first. Can you have a comfortable night? May be he is in Zimbabwe, his birth place.

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  41. #36 The Intelligentia
    Mr Sondashi wants to be President and if he did become President he would be the last person to change the status quo. It is funny that this debate arose because a higher legal institution overruled a lower institution. Had it been upheld, no one would have been talking about it, but I believe that because the judgment has been appealed interested parties are trying to sway the outcome to their favour. Lay people can talk, but to have lawyers discussing a subjudice case in the media is indiscipline in our legal system and LAZ should act.

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