This office, analysts said, should be transformed into a more independent body, which is free from political interference.
They pointed out that a wholesale transformation of the office was necessary as cosmetic changes such as changing personnel may not bring the desired results.
The AG’s office has, among other things, been accused of selectively prosecuting offenders, failing to adequately advise the government on critical legal issues, being manipulated by politicians and lack of professionalism.
Highest on the list of misdemeanours that the AG’s office has been accused of is political manipulation. This is because of the way it has handled high-ranking political cases.
An example is the current trial of MDC treasurer Roy Bennett, in which the state prosecution is led by AG Johannes Tomana, whose appointment remains an outstanding issue of the global political agreement, further fuelling the debate that there is political interference.
Programmes coordinator at Zimbabwe Lawyers for Human Rights, Tafadzwa Mugabe, said the AG’s office should become professional if it is to be taken as a vital player in the justice delivery system in the country.
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“The AG’s office should stop being used as a tool for political ends,” said Mugabe. “They should also stop the selective application of the law where some people are prosecuted not on the merits of the case but on the basis of which party they belong to or they are perceived to be sympathetic to.”
Mugabe cited the case of Joseph Chinotimba — a leader of the war veterans association — who accused Nkulumane MDC-T MP and Deputy Youth minister Tamsanqa Mahlangu of stealing his cellphone.
He said there was much “zeal and vigour” in pursuing the matter by senior officers in the AG’s office.
“We had very senior law officers pursuing this case but in normal circumstances such a case will attract a fine or the person would be asked to return the cellphone,” said Mugabe. “What makes this case even more telling is that the accused was found not guilty.”
Apart from the accusations which have been levelled against the AG’s office, there are administrative problems which also have to be addressed and these include a mounting backlog of criminal cases that include corruption, serious understaffing and personality clashes within the AG’s office which have seen some experienced law officers being unceremoniously transferred and others quitting.
Staff movements have left the AG’s office depleted and at times there are inexperienced officers who are running departments, which partly explains the bungling which has characterised the office.
There are for example six soldiers — Albert Matapo, Nyasha Zivuka, Oncemore Madzurahova, Emmanuel Marara, Patson Mupfure and Shingirai Mutemachani — who are accused of trying to topple President Robert Mugabe, who have been on remand for three years. This is mainly because of the AG’s office’s failure to proceed with the case because of administrative problems.
If the AG’s office was to become an independent authority, analysts argued, it would be able to carry out the prosecutions as well as being the “people’s lawyer”, which is able to represent the state in various cases.
“It would make a lot of sense to have an independent prosecution authority as the current setting confuses the AG’s roles as the chief advisor to government and being the advisor to a political party,” added Mugabe. “With the establishment of a prosecuting authority, there will be no double roles where we have the person crafting the laws who then will advocate for these laws to be passed by cabinet and parliament. If it is an independent prosecuting authority, then I am of the opinion that this may change.”
Constitutional law expert and lecturer at the University of Zimbabwe Lovemore Madhuku said any authority should be a creation of the constitution as a mere change which is not supported by the supreme law would not have any effect.
“We need to have an independent prosecution authority which would separate the roles of the government legal advisor from those of the person heading the prosecution,” said Madhuku. “The weakness we have in the country, and we have had this system for a long time, is that we have a partisan AG. It is usually the case that the government legal advisor would be partisan and the best way forward would be separating the two.”
He pointed out that the controversy over the double role, that of being a legal advisor to government and the leader of the prosecution, became evident after Patrick Chinamasa, who is now the Justice minister, took over with his “emotional attachment”.
Chinamasa then rose to becoming a minister while in most cases the AG normally becomes a High Court judge.
Mugabe said experience with the AG’s office in the last 30 years has shown that it is open to political manipulation and it is time to explore other options.
“Some may say we keep trying new things but our experience has shown that the AG’s office is not doing well. Take for example what has been happening when government defies court orders. It is the duty of the AG to advise government on what to do, that is to respect these court orders,” he said.
“Imagine what would happen if an accused person were to be sentenced and then tell the judge that they would not comply. This will cause anarchy and this is what the AG’s office is doing by letting government ignore court orders.”
Tinoziva Bere, the vice president of the Law Society of Zimbabwe, said the reforms should start with the removal of people seen not to be independent.
“We would then remove the AG’s office from direct ministerial control, more along with what happens in South Africa but we should add more on the appointment process,” said Bere. “The people who will be appointed to the office should be under public scrutiny before they are short-listed and interviewed. There should be a Judicial Service Commission that is made up of independent lawyers who should be involved in the shortlisting of candidates.”
This Judicial Service Commission could also have a representation from the bench. While some countries involve the parliament in the selection process, Bere said the experience in Zimbabwe is that the politicians should not be part of the process.
If the AG’s office were to be transformed into an authority, with autonomy along the lines of the Zimbabwe Revenue Authority and the Parks and Wildlife Authority, it would be able to execute its mandate in a more transparent manner without political interference, analysts say.
Under such an arrangement, the taking up of cases by the AG, though with precedence, would be viewed as the normal execution of duties by the office unlike the case at the moment.
Another problem with the AG’s office is high staff turnover at almost all levels which has affected continuity. There have been five attorney-generals in the last decade. Chinamasa was the AG in 2000 before he was succeeded by Andrew Chigovera who resigned three years later.
Bharat Patel acted in the capacity of AG before Sobuza Gula-Ndebele took over.
While Gula-Ndebele showed considerable initiative towards reforms, he was elbowed out of office and Tomana took over.
There is also a lot of movement at the lower ranks as law officers are transferred, fired or suspended and in most cases this is linked to the personality clashes which have come to characterise the AG’s office.
A report prepared by the International Bar Association to the International Council of Advocates and Barristers in 2004 showed a number of problems at the AG’s office and these included understaffing, lack of resources and political interference.
These problems have continued and they may only be solved if the AG’s office was to be transformed into an independent body with autonomy.
Attempts to reform the AG’s office last year were stillborn after the AG’s Bill which sought to introduce reforms lapsed after the second reading in parliament.
This would have been the first step towards realising reforms at the AG’s office as it would have gone a long way in making sure that it is weaned from the parent ministry.
Leornard Makombe
