Eminent legal experts have said officers in government ministries, departments and agencies are at liberty to ignore legal opinions from the Attorney General (AG) on any matter they sought.
But the legal minds have warned that in the event of something going wrong and requiring government to pay, such officers could be held personally liable for acting contrary to the AG’s advice.
Most prominently, of late, the Office of the President and Cabinet (OPC) has rejected some legal opinions from the AG, opening a debate whether his opinions are binding.
While two legal minds and Malawi Law Society (MLS) agree that the AG’s legal advice is not binding, and can be ignored, professor of law at Cape Town University in South Africa, Danwood Chirwa, argued that the AG’s legal opinions are binding and must be followed to the letter.
The AG himself, Chikosa Silungwe, declined to be engaged on the matter and only responded to our questionnaire saying: “No comment, Sir.”
But Chancellor College [University of Malawi] law professor Edge Kanyongolo, in a response to a questionnaire, said the AG’s legal opinion is, obviously, an opinion.
“Like any lawyer’s opinion, it can be ignored and replaced with the client’s own layman’s opinion. In fact, many clients routinely do this, though sometimes they discover the folly of their decisions in subsequent judicial proceedings.
“However, if government officials are getting legal advice from sources other than the AG’s office, the public is entitled to know those sources for purposes of constitutional, administrative and financial accountability,” he said.
Kanyongolo said public officers that ignore the AG’s advice could be ‘safe’ as long as their disregard does not subsequently result in adverse court judgements resulting in loss for the government.
“In that event, such officers would be at risk of personal liability for that loss,” he warned.
Added Kanyongolo: “It should also be borne in mind that rejection of the AG’s advice may sometimes be politically motivated and only cite alleged legal errors as a convenient fig leaf.”
Chief Secretary in the OPC Zanga-Zanga Chikhosi, who did not pick his mobile phone on several attempts when we tried to seek his reaction on the matter, has seldom cited government’s alternative source of legal opinions after ignoring AG’s legal opinions so far, or cost, if any.
Another Chancellor College law professor Garton Kamchedzera said the AG’s opinions are advisory; hence, only statutory law and court decisions should bind.
Asked how safe public officers that ignore the AG’s legal opinions are, he said their safety may depend on the purposiveness of the AG’s opinions.
“This is because a court of law is more likely to take a purposive interpretation of a statute or rule of law.
“From at least two recent cases, this may have been signalled: (a) A transfer of Mrs Gertrude Hiwa from the Ministry of Justice and (b) a settlement out-of-court, signed by the AG. Mrs. Hiwa lost the case. The settlement out-of-court was to be renegotiated, the OPC having hired another lawyer.
“In that case, the AG stayed with his opinion. He is likely to take such a position, in his current approach,” said Kamchedzera.
He said contradictions within government bring incoherence and ineffectiveness.
He said the recent leakages of the AG opinions could be coming from at least two sources—as a sign of helplessness and fighting.
“If certain officials continue to find the AG’s opinions unconvincing, leaking will continue. Similarly, if certain people in positions to benefit from the AG’s opinions think that the opinion is at risk of not being followed, they could leak,” he said.
Kamchedzera said it was imperative for the AG to demonstrate that his opinions are legally in the best interests of the people of Malawi, understand those he is advising, and provide convincing advice based on a purposive interpretation and use of the law that looks for solutions.
“The law is a rich source of solutions. Its authority and that of the AG may be eroded if the law or an opinion is seen as unconvincing and an impediment,” he said.
MLS honorary secretary Martha Kaukonde, in a response to a questionnaire, said the AG’s advice is not binding like an order of the court, but it is advice which the Law Society would recommend any government official receiving it to take.
She said the AG is by law the principal legal adviser to government, warning it is not safe for any government official who has received AG’s advice to ignore it.
“It is much safer to abide by the advice and let it be proved wrong either in a court of law or in practice because that way, the competence of the AG’s advice would be tested through practical realities and/or legal process,” said Kaukonde.
On complication that may arise where the AG goes to court to defend a matter in which his legal opinion was ignored, she agreed with Kanyongolo that the AG would be bound by law to attend the proceedings and give his best defence, his expressed opinion notwithstanding.
“Cases are decided on facts that turn up before the court and, of course, tested by relevant law,” said Kaukonde.
But Chirwa, the Cape Town University-based law professor, in his response to a questionnaire, said the AG’s office is created by the Constitution.
“The AG is the principal adviser to government. To fulfil this huge responsibility, the AG delegates powers to others within the Justice Department or beyond.
“This is an important office of government which is there to help the government to respect the rule of law. The legal opinions that the AG give cannot be treated as mere opinions to be ignored at whim,” he said.
Chirwa warned that failure to follow the legal opinion of the AG could lead to lawlessness.
“Remember that the AG is the leader of the legal profession. So his/her responsibility is huge, such that the opinions that the office produces are written at huge personal cost. If they are written carelessly or in breach of professional standards, the possibility of disbarment is there.
“A public official who takes action that ignores the opinion given by the AG does so at a huge risk to the government and to themselves. Ignoring legal opinions of the AG can lead to legal liability for the government. If this happens, the official is liable to dismissal on grounds of misconduct,” he argued.
Such an official, Chirwa said, could also incur liability for legal costs arising from unsuccessful defence of the impugned action.
He said it was becoming common for courts to impose legal costs on public officers where they act in reckless disregard of the AG’s legal opinions.
“Normally, where a client receives an opinion and insists on taking the action that is not recommended, there are several options. If the opinion is saying a particular action is unlawful, then the official cannot take that action. If the official ignores the advice and takes the unlawful action, the aggrieved party would have a right to sue the government.
“The AG’s office would be the party to that litigation. In Malawi, only the AG can be cited as a party to legal proceedings against government departments. As a party to proceedings, the AG has the right to decide whether to defend the case or not. No one can compel the AG to defend a case he believes cannot be won,” Chirwa said.
He said in this case the AG is on a different position to ordinary lawyers who follow clients’ instructions, and he represents the public, not necessarily the government official whose action is being challenged.
“This is why it is pointless to go against the advice of the AG. Ignore the AG at your own peril and that of government. You might end up with an egg on your face and he or she will have the last laugh,” said Chirwa.
Recently, President Lazarus Chakwera received a legal opinion from the AG, advising him to write appointment letters to two Democratic Progressive Party commissioners [Jean Mathanga and Linda Kunje] of Malawi Electoral Commission, to formalise their employment, but OPC declined to do so.
Public Affairs Committee of Parliament recommended to former president Peter Mutharika, and the incumbent, firing of the two commissioners.