Long road ahead for new AG

Long road ahead for new AG

tomana johannesTHE newly appointed Attorney General (AG), Prince Machaya, is expected to hit the ground running in order to dig into tasks and responsibilities that had become overdue in the absence of government’s chief law adviser.
Machaya replaced Johannes Tomana, who was appointed Prosecutor General (PG) in November 2013.
His plate overflows with, among other things, the mammoth task of aligning over 300 pieces of legislation to the new Constitution, which came into effect in March 2013.
The fact that Machaya is no stranger to the AG’s Office as he was already working as a deputy to Tomana before his departure, gives a sense of continuity.
By virtue of his experience and close association with the AG’s Office, Machaya is likely not to spend a lot of time on orientation, but instead is expected to hit the ground running after the gaping absence.
Machaya, as a result, will find very little time to savour his appointment but to immediately jump into the deep end as he has his work cut out for him.
Last week, legal experts commended the choice of Machaya whom they said was respected among his peers in the legal profession and had served for a very long time in government and at the Reserve Bank of Zimbabwe.
Beatrice Mtetwa, a renowned human rights lawyer said Machaya’s appointment was a welcome development as he has vast experience of the government’s legal systems.
“Especially given the delays of aligning laws, the appointment of an AG is likely to speed things up and it also means that Tomana’s dual role where he was doubling up as the PG and AG comes to an end. We sincerely hope that the new AG will prioritise the alignment of laws,” Mtetwa told the Financial Gazette last week.
According to the laws of the land, the office of the AG is created by section 76 of the Constitution, which provides, inter alia, that the AG is appointed by the President after consultation with the Judicial Services Commission (section 76(2)) and is a non-voting member of the Cabinet and of Parliament (section 76 (3b).
The main responsibilities of the AG include the power to order investigations of either criminal or other alleged offences.
The AG also has powers to take over, continue or discontinue prosecutions commenced either by him or by other persons.
In the past, the AG’s post has been a source of conflict with the opposition Movement for Democratic Change led by Morgan Tsvangirai red-flagging the appointments made by President Robert Mugabe for their partisan links.
Past post-independence AGs include Tomana, Sobuza Gula-Ndebele and Patrick Chinamasa, the current Finance Minister who all had strong links to the ruling party.
While the re-alignment of the country’s laws to the new Constitution is certain to be at the top of Machaya’s to-do-list, political interference could pose a significant challenge to his ability to execute duties fully.
Pandering to political whims has the danger of curtailing the AG’s powers, which as the chief legal adviser to the State should be quite considerable.
Obert Gutu, a lawyer by profession, said his fear was that some political hawks in ZANU-PF would feel inclined to unduly interfere with the new AG’s duties.
“We all know that ZANU-PF has never really been comfortable with the wholesale democratisation of the country’s laws in line with the Constitution,” said Gutu. “This explains why we still do not have provincial and metropolitan councils two years after the elections.”
Mtetwa said in comparison with AGs elsewhere in the southern African region, the office of the AG in Zimbabwe was undermined by politicians who selectively chose what advice to consider and ignore— with no consequences in place for disregarding the authority of the AG.
“In other countries it is a very powerful position, but what the AG says here in Zimbabwe is not always listened to. In turn, this undermines the power of the AG. If politicians disregard the advice of the AG, there must be consequences,” said Mtetwa. “Here…we have a situation where politicians are left to pick and choose what they want to use from the AG. So there is need for clout on the part of the new AG to stand up even in the face of opposition from the politicians.”
But for United Kingdom-based lawyer Alex Magaisa the office of the AG by virtue of being appointed by the President made it susceptible to toeing a fine line which would be to not upset the political order of the day.
An ideal situation, Magaisa proposed, would be for the AG to be appointed by an independent panel rather than by an individual to whom they would be indebted to for their stay in office.
Unlike the PG’s office which has a six-year term, which provides a guarantee to their term of office–the AG’s office has no clearly spelt out term of office, thereby is widely seen to lack security.
Magaisa said there was no justifiable reason why the AG was made weaker than the PG in terms of their protections and independence and the matter required rectification.
“The result is that we probably have the weakest AG in history and perhaps anywhere else in the world, notwithstanding the critical role that such an office ought to play in a democracy. I have no doubt that the AG’s office was one of the biggest casualties of the political battles in the constitution-making process,” said Magaisa. “The irony is that having set out to split the functions of the AG to enhance independence, the whole process created a strong PG but left the AG a lot weaker than it was before the start of the process.”
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