Attorney General (AG) Charles Mhango’s active involvement in partisan politics continues to hog the limelight with the Malawi Law Society (MLS) stating that his conduct raises “legitimate and practical questions”.
In a written response to a questionnaire, MLS honorary secretary Michael Goba Chipeta said as required by Section 98 of the Constitution, which establishes the office of the AG, Mhango or any office bearer is required to discharge duties and to conduct himself/herself in an impartial manner and in a manner which indicates that he is alive to his ethical duty to be professionally independent.
The query, which The Nation made after some commentators raised the issue in our sister newspaper, Nation on Sunday, followed Mhango’s declaration during a rally at Chandamale Primary School in Rumphi District that he will contest as legislator for Rumphi Central Constituency. He was also seen openly campaigning for the governing Democratic Progressive Party (DPP) ahead of the 2019 polls.
In his response, Chipeta said the AG, whether appointed as a public officer or as a Cabinet minister, is the principal legal adviser to all three branches of the government—the Executive, the Legislature and the Judiciary.
He said: “As a legal practitioner and in terms of Section 98 (6) of the Constitution, he is required to discharge his duties and to conduct himself in an impartial manner and in a manner which indicates that he is alive to his ethical duty to be professionally independent.
“These are obligations that are at odds with the occupant of the office actively campaigning for a parliamentary seat and acting in an overtly partisan way. There are also legitimate and practical questions to be raised as to whether he will devote sufficient time to his Chambers given the demands of running for a parliamentary seat.”
Chipeta said it was the MLS view that “the centrality of the office of the Attorney General to our constitutional order requires an Attorney General who is not distracted by the rough and tumble of partisan politics”.
But Edge Kanyongolo, a professor of law at the University of Malawi’s Chancellor College, is on record as having said there was no constitutional provision barring the AG from being a politically active person.
In a recent interview with Nation on Sunday, he said: “I am saying this because the Constitution also says the AG can even be a Cabinet minister and we know that a minister would be a political person. My only observation is that the Constitution has no specific prohibition against the AG being a politician.”
Kanyongolo observed that Mhango was not the first one to be in that position while still active in mainstream politics, saying the law permits such a situation.
He said the argument against him would only be justifiable in a case where someone can prove that he has not provided fair advice say to Parliament or members of the House because of his affiliation to the DPP.
Section 98 of the Constitution states that the office of the AG may either be the office of the Cabinet minister or maybe a public office.
Where it is the office of the minister, someone actively affiliated to a political party can be appointed to the office and where it is a public office usually someone without political colours holds the office.
Immediate past AGs, notably Malawi Supreme Court of Appeal judges—Jane Ansah, Maxon Mbendera (deceased) and Anthony Kamanga—and private practice lawyer Kalekeni Kaphale did not hold political office.
Reacting to concerns about his partisan political involvement, Mhango told Nation on Sunday of January 7 2018 that he did not see any conflict between his political role and discharging of the functions of his office.
Mhango is also legal adviser to the governing DPP. n