High Court Judge Redson Kapindu sitting in Lilongwe has questioned the decision by the Attorney General (AG) Thabo Chakaka-Nyirenda to personally appear before the court in order make the representations on behalf of the Malawi Defence Force (MDF).
The Court summoned MDF to explain why it is refusing to furnish the Anti-Corruprion Bureau (ACB) with documents relating to Vice-President Saulos Chilima’s corruption case.
Judge Kapindu ordered that MDF should appear before the court in camera through office of the AG.
On Thursday, the Court said it received a letter from the AG’s office seeking an adjournment saying Chakaka-Nyirenda could not attend the proceedings because he was appearing in another High Court matter in Blantyre.
The case was adjourned to October 31, 2023.
However, in his adjournment ruling, the judge said when making a decision on personal appearance, the Attorney General should consider matters of the impartiality of his or her office.
“It should be borne in mind that as Principal Legal Advisor to the Government, the Attorney General is responsible for providing impartial legal advice to the whole establishment of the Government, including the Executive, the Judiciary and the Legislature. The Government institutions that receive legal advice from the Attorney General include the Anti-Corruption Bureau (ACB), which is the in the present matter, and which party also sought access to the documents whose disclosure is being demanded and the MDF is objecting to the same. It is an elaboration on the position taken by the MDF, which is not a party to the present matter, that this Court seeks representations on.
“This means there are different Government entities whose interests are at odds, and then there is also the Defendant, whom it should be recalled, is the serving Vice President of the Republic. By personally appearing in court, there is a risk of creating a perception of a conflict of interest, as the Attorney General may be seen as individually (personally) advocating for a particular party’s position rather than providing general independent legal advice to the public authorities involved and to the Court.
“In addition, the Court has been informed today that on 17th October, 2023, the Attorney General, the Malawi Defence Force (MDF) and the ACB had a meeting in respect of the present matter. The Court was informed that they had a general discussion on what has been happening in Court. The Attorney General however, as Principal Legal Advisor to the Government and in the context of the present matter, is not expected to take sides either for the Prosecution or for the Defence, but to provide independent and impartial advice to the actors involved.
“Thus, it appears to the Court that during that meeting, one could not be over-assuming that the Attorney General might have volunteered some legal advice to both the MDF and the ACB. Be that as it may, under the law, the Attorney General, as an office, is at the same time mandated to assume audience in Court proceedings on behalf of Government entities or agencies such as the MDF.
“It is in this connection that the Attorney General must carefully reflect on the need for personal appearance and weigh the need to do so against other considerations, even if in some cases such as the present one, the matter is of a high-profile character,” reads part of ruling
Justice Kapindu said another reason why the Attorney General should be highly restrained in personal court appearances is to do with the efficient utilization of human resources in his or her chambers.
“The Attorney General’s office is responsible for handling a wide range of legal or legally related matters. By delegating courtroom appearances to other qualified lawyers within the office, the Attorney General can ensure that available human resources are efficiently allocated and that multiple important cases can be handled simultaneously. This will help in ensuring a more efficient and effective legal system in Malawi on the whole.
“The Attorney general must also, in deciding on personal appearance, carefully consider issues of public image and public trust in his or her office which is a very important public office,” reads part of the statement
