Dr Jekyll and Mr Hyde were two personalities in one body. Our Attorneys General (AGs), by their “flexibility”, have developed rather more schizophrenic morphs. The lure of a seat at the head of the Supreme Court may have encouraged some chameleon performances in the past. The manner in which they switch between their often incompatible roles leaves many a citizen bewildered. This undesirable state of affairs owes its sustenance to the fact that our Constitutions have been crafted to leave as much room as possible for the Executive to appoint compliant persons of its choice to all important positions, including that of the AG. Hence, taking constitution-making out of the hands of politicians and entrusting the task to a well-balanced committee of persons of integrity and intellectual independence is an urgently required measure.
Article 35(2) of the Constitution states that proceedings against the President in respect of the exercise of his powers shall be formally instituted against the AG (ie. because the President enjoys a certain measure of personal immunity insofar as the Courts are concerned). This means that the AG is forced not only to be the proxy of the President but also to act as the counsel who fights the President’s battles in Court – even where the President has blatantly violated the Constitution. The AG is called upon, all too frequently, to defend the indefensible. Instead, the technical requirement for the President to be represented by the AG can be met by providing for the appointment of a senior officer in the Presidential Secretariat for this purpose, and for lawyers from the unofficial bar to be engaged as legal counsel to defend the President in Court. If this is done, the AG could devote himself single-mindedly to assist the Courts in the greater interests of the People. Such an arrangement would be consistent with the opinion expressed by the Supreme Court in 1981 in a case involving the Land Reform Commission, Grand Central Ltd and the AG. It was made clear on that occasion that “… the AG has a duty to the Court, to the State and to the subject to be wholly detached, wholly independent, and to act impartially with the sole object of establishing the truth”.
If the AG does not appear as the counsel for the President, who are the independent lawyers upon whom the President could rely to advise and defend him? The Citizens’ Movement for Good Governance (CIMOGG) believes that the answer is readily found in the Constitution. In view of the special treatment that the Constitution gives the legal profession, unlike all other professions and vocations, the President should call upon a few senior Attorneys-at-Law who have secured the privilege of being made President’s Counsel (PC) to appear for him. Those chosen should be happy to be asked to do so, even without a fee, because they enjoy a special constitutional prerogative and a financial goldmine secured for them by their erstwhile seniors who formulated the 1978 Constitution. Other than for the two or three PCs who might be called upon to head the President’s legal team, there need be no restriction on the remaining PCs from appearing for the other side, if retained to do so.
Under the 17th Amendment (17A), Article 41C(1) provided for the AG to be appointed by the President with the approval of the Constitutional Council (CC). Now, under the totally undemocratic 18th Amendment (18A), the President can appoint any person of his choice to virtually any State post. All that the President has to do is to inform the 5-person Parliamentary Council of his selections and seek its observations. This Council consists of the Speaker, the Prime Minister (PM), the Leader of the Opposition (LO), an MP nominated by the PM and an MP nominated by the LO. The President is entirely free to disregard such observations and appoint anyone he wants to be, say, the AG! Understandably, an AG appointed under 18A, very probably over the heads of more deserving candidates, would be distinctly inclined to safeguard the President’s interests rather than those of the People.
Article 41C(4) of 17A stipulated that the Attorney General’s views may be sought by the CC regarding the appointment of Judges of the Supreme Court, as well as the President and the Judges of the Court of Appeal. Now that the CC has been displaced by the Parliamentary Council, it is not clear whether the latter would seek an opinion from the AG regarding the aforesaid appointments. Whatever the procedure followed, a conflict of interests would certainly arise if the past practice of sometimes appointing the AG to be the Chief Justice remains a potential reward for “pleasing the boss”. Consequently, the appointment of judges may be better done if entrusted to an enlarged Judicial Services Commission (JSC), which would, say, have as its members the Chief Justice, the most senior Judge of the Supreme Court, the President of the Court of Appeal and four other non-judicial persons of distinction, including two eminent legal academics. Broadening of the JSC membership in this manner would reduce the distorting effect of the inevitably close relationships that persist among the various branches of the judiciary, the official bar, the unofficial bar and the Executive. Incidentally, South Africa has established a good precedent by providing for a 15-member JSC.
Increasing the distance between the Executive and the AG is absolutely vital if the latter’s position is not to be prostituted for political ends. We have no record of how many instances there have been in the past where the Police and State Counsel did a professional job in carrying out difficult investigations and preparing to charge suspects in Court, only to find that, under improper pressure, the exercise is abandoned by the AG on the grounds of “a lack of sufficiently compelling evidence”. For example, cases had been filed some considerable time ago against two persons accused respectively of rape and of murder (both with strong political pull). With remarkable alacrity, the AG unilaterally withdrew the cases many months later, incurring the justified displeasure of the Court, which opined that he was not entitled to do so without its leave. Given the likelihood that AGs will continue to use their powers wrongfully in the future as well, when called upon to do so, it is apparent that the need has arisen once again to reactivate the position of an autonomous Director of Public Prosecutions – but not under 18A, which renders democracy, the Rule of Law and good governance totally irrelevant.
What is the role of the AG with regard to the vetting of contracts entered into by State entities? How did the infamous oil hedging contracts get past the AG, to whom we used to look up as the authority who ensured that such contracts are worded so that the potential benefits to the non-State parties are not greater than those to the State? Now, having been involved in fighting the claims arising from these contracts, has the AG advised the Executive on the steps it needs to take to fix responsibility for the losses suffered and to help prevent future corrupt transactions of this nature? We believe that the AG should not wait to be asked before offering advice to the Executive on how to safeguard the interests of the public.
Considering the number of loose ends that one can see in defining the roles of the AG and making them work, the public should be kept better informed on this subject. Therefore, in order to effect the accurate dissemination of knowledge on the multiple functions of the AG, it would be greatly appreciated if Department of the AG were to produce an explanatory booklet containing a reasonably detailed description of the powers and duties of this critical public office. The booklet should also contain proposals as to how the laws should be amended so that the AG may be better insulated from unhealthy coercive forces and work more effectively for the benefit of the People.