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function and power of the Attorney-General in the nation’s political and legal system.
At most, this has been left to people in the legal fraternity, constrained by certain ethical and professional codes, to debate the issues, away from public view, quietly amongst peers in their learned circles, away from the public domain.
The Transparency International Zimbabwe case against Attorney-General, Johannes Tomana, calling on the Judicial Services Commission, the police and the Ministry of Justice to subject the “principal legal advisor to the Government” to a criminal investigation has thrust this debate into the public domain.
In a dossier entitled “Johannes Tomana’s Reign as Attorney General of Zimbabwe: A Trail of Questionable Decisions”, TIZ cites four high profile cases in which it says the AG is allegedly linked to criminal abuse of office.
Whether there is substance or not in the allegations is not what we will take to issue, but the broader and much deeper question of who is to say?
In the present constitutional, political and legal framework in Zimbabwe, who is vested with the power of oversight on the Attorney-General?
In other words, to what extent is the role and function of the office of Attorney-General open to public scrutiny, limited or fettered by the other two branches of Government, namely the Legislative and Executive branches?
What is and what is not desirable for the effective functioning of the AG’s office?
Though formally introduced to the Zimbabwean judicial system only after independence in 1980, the office of Attorney-General is common to many judicial systems in the world.
In the United States, the Attorney-General is appointed by the President as part of his cabinet.
This is why you find the current incumbent, Eric Holder, who as the 82nd US Attorney-General, is the first African-American to hold the position, having been appointed by the first black President of the US Barrack Obama.
In the United States, presidents come in with a legal and legislative agenda which they pursue through such key appointments as the Attorney-General and justices of the Supreme Court.
Attorney-Generals administer the justice department to suit presidential priorities.
President John F Kennedy even appointed his brother Robert, where Bill Clinton chose Janet Reno, the first and only woman ever to occupy that post.
Political scientists concerned with legal phenomena have increasingly extended their inquiries beyond the focus on the Supreme Court to probe many aspects of the legal system to explore the office of the US Attorney General.
This is because their key role and performances so pervasively affect the quality and effectiveness of law enforcement.
Though formally appointed by the President with confirmation by the Senate, US Attorney-Generals are selected by sensitive bargaining blending political and legal pressures.
This is because they help shape public policy. One important way in which they do so, marked by considerable discretion, is to decide which cases to prosecute.
Every business day, courts in the US render decisions that together affect thousands of people, because some of them adjudicate rights, benefits and legal principles that impact on all. Inevitably some rulings are accepted by many while many others may disapprove.
All however accept the legitimacy of these decisions and of the courts’ role as the final interpreter of the law – a demonstration of the trust they place in the rule of law, and confidence in their legal system.
The questions that have been raised around the person of Johannes Tomana, first by the MDC formations under the GPA regarding his appointment by President Mugabe and how his integrity as questioned by TIZ, all raise serious and pertinent questions about perceptions of our legal system.
Not that this is unique to Zimbabwe. Many objections have been made by some to court rulings, when others have generally approved the legitimacy of these decisions and of the courts’ role in interpreting the law.
It is apparent the MDC formations came into the Government of National Unity bereft of a legislative agenda. One only needs to look at the bills on the table in Parliament.
Apart from the constitution-making process, the MDCs have lacked inertia in pursuing legislative agenda even that contained in the GPA, for reform of electoral and media laws, guarantees to essential freedoms, all part of their professed neo-liberal agenda.
Perhaps this explains why non-governmental organisations, frustrated by the lack of momentum in the MDC, have chosen to take matters upon themselves, as with TIZ in the case with Attorney-General Tomana.
It needs mentioning that any law is a combination of expectations, rules and practices that govern behaviour. All legal systems are dynamic, continually evolving.
No legal system is perfect. Even in law-abiding societies, rules are broken, and the guilty sometimes escape punishment.
That is not new nor is it unique to Zimbabwe. A system of law does not just happen. It grows. So does a political system. It also grows.
Judges decide cases. They do not prosecute persons. That, in many countries, is the job of the Attorney-General.
Put tersely, judges make the laws, adjudicating alleged violations of and disputes arising under the law. This requires that they interpret the law.
In doing so, courts are often bound by how other courts of equal or superior rank have previously interpreted the law, based on the ancient principle of stare decisis et non quieta movere – to stand by precedent and not to disturb points that are settled where previous decisions or precedent must be followed.
Judges are often confronted with a choice between what is called judicial restraint – interpreting the constitution as it literally says – or judicial activism, which says the constitution should not be interpreted literally, but rather adapted to reflect current conditions and philosophies.
Either way, what the people want is to see justice to be applied in a manner that give them confidence and trust in the legal system. It is not for judges to write the statutes. That is the work of parliament. This is why we call our parliamentarians lawmakers.
How good the laws we get is a function of legislature whose primary role when we elect them should be to write the best statutes for us and to repeal those which may no longer be deemed desirable. This parliament ought to judge itself accordingly.
To what to apportion blame for the shortcomings of our legal system where it does not lie, solely on the bench and on the Attorney-General is not only unfortunate. It is as worrisome as it is disquieting, indeed scary that we have sent to parliament people who do not seem to have the foggiest idea of what their role ought to be.
Debate in both our houses of parliament tend to lack not only purpose, depth and direction, but also more profoundly, inspiration and vision.
To talk of innovation would be stretching it.
Debate often focuses on the petty and frivolous, not the core national issues and concerns.
Even the core purpose of our nationalistic struggle seems lost on our legislators, who show no potential for their two most important functions, oversight on the Executive and making good laws.
There is a continuing trend in all successive post-independence elections, of declining numbers of voters who turn out to exercise their democratic right, consistent with apathy and disgruntlement with our political system, where we seem convertible in drawing daggers against one another when we should be most concerned with how best to end our poverty in the midst of plenty.
The TIZ thinks that the Attorney-General, based on spurious allegations, ought to take the flak for letting one Bright Matonga and others walk scot-free after facing serious fraud and corruption charges.
The courts acquitted or convicted them, some of them wrongly it was later learnt. But to blame Tomana, is according to Senator Aguy Georgias, “rather farfetched if not preposterous.”
To be sure, Matonga’s case arose from charges raised in February 2006, about two years prior to Tomana’s appointment as Attorney-General in December of 2008.
If the purpose of law is to preserve order and to do justice, then it ought to be applied equally to all.
Confronted by this writer with questions relating to the level of debates in parliament and the questions being raised about the legal system in Zimbabwe by some quarters, Senator Aguy Georgias, a frequent litigator in both local and international courts, famous for his in duplum case with Standard Chartered Bank and CBZ, and recently the anti-sanctions case against the EU, where he has also been critical of some of the court decisions had this to say:
“When former Chief Justice Gubbay found against me in my case against Stanchart, I obviously was not pleased with that outcome, but it never was for me to question his integrity nor that of our courts.
“We have to honour and respect institutions, particularly the courts, that we put in place to order our society and govern our behaviour. Attacking judicial decisions is never in our best interests.
“The courts must be allowed enough space to exercise their very important role of settling our disputes. We will always never agree on many things.
“This is why there is wisdom in respecting the institutions that we entrust with adjudicating matters of conflict and disagreement in society, and between us as individuals.”
Specific to the case of TIZ and the Attorney General, Georgias had this to say:
To me there is more than meets the eye in the TIZ issue.
It would appear to me that the AG is hardly the target of their actions.
There is a hidden agenda, going deep in to the current political environment, whose motive may be bigger in that context.
“They (TIZ) are playing politics, to discredit our justice delivery system, and to impair all faith and trust in it.
“The AG could not have acted ex post facto (after the fact) to prosecute a matter that the courts had already ruled over and passed a legitimate decision. They better come clean. It is politics stupid”.
To Georgias and many others, there is an open alliance between most of the NGOs operating in Zimbabwe under the umbrella of Nango and the former opposition MDC formations and others such as Zapu.
What may be at play, he reasons, “is dissatisfaction with the failure by the two MDCs to advance any purposeful legislative agenda, when they have their plate full with GPA sanctioned reform agenda, which they have done little or nothing to move in parliament, save for quibbling with trivia over presidential appointments.”
As far as the work of the Attorney-General is concerned, a bill is now before parliament, the Attorney General’s Office Bill 2010, which seeks to grant semi-autonomy to the AG’s office as “to establish the Attorney- General’s office board, to constitute the Attorney General’s office as a service outside the Public Service Commission and to provide for the administration of the office and the conditions of service of its members.”
It is this bill that we ought to focus on and interrogate, for our common good, rather than continue to witch hunt and apportion blame where it does not lie.
What is, and should be the dynamic role and function of our Attorney-General as chief legal adviser to our Government and prosecutor of all criminal and civil cases in Zimbabwe?
That is the question.
It certainly is not about why Johannes Tomana is the incumbent.
We ought to look further and beyond.