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The Malawi Law Society (MLS) has expressed concern over the continued delay by President Bingu wa Mutharika to appoint a new Attorney General, saying the undue delay has created a constitutional gap.
MLS secretary Linda Kabwato-Ziyendam’manja said in a statement on Friday the society is greatly concerned about the consequences of the continued absence of the Attorney General.
“The importance of the office of the Attorney General cannot be overemphasised. The legal machinery of government revolves around the Attorney General. The Attorney General plays a crucial role in ensuring that all legal processes for and against the government are taken care of,” said Ziyendam’manja.
She said government can only be sued or sue through the Attorney General’s office.
“Although the Attorney General can delegate his duties to his subordinates, constitutionally, no subordinate can act without the general or specific instructions of the Attorney General,” said Ziyendam’manja.
She added: “Government legal officers are appearing before our courts to argue new matters on behalf of the Attorney General without instructions which is, therefore, a breach of the Constitution and civil procedure rules.”
“Further, the continued absence of the Attorney General is slowing the wheels of justice which is bound to be highly detrimental to both the public and government. Matters are being instituted against the Government for which the attention of the Attorney General is fundamental.”
Ziyendam’manja also said the Attorney General’s appointment is a constitutional requirement and although the President has the power to appoint that office, such appointment is not at the whim of the President.
“Our Constitution and supporting laws stress that the government legal machinery can only be oiled by leadership of its Chief Legal Officer who is the Attorney General. The president’s prerogative only extends as far as the “who to appoint” but it cannot be exercised to decide whether or not to appoint someone to that office. The Attorney General is not optional,” said Ziyendam’manja.
She said the Constitution is silent on the period within which the President must appoint an Attorney General and suggested that the President maybe taking an advantage of that.
Chief Secretary to the Office of the President and Cabinet Bright Msaka told The Nation last month that it is the prerogative of the President to appoint an Attorney General and decide whether to make it a cabinet post or a normal civil service post.
He said the Solicitor General is the one who is giving legal advice to the President and government.
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