Government warned on absence of Attorney General

Tom Sangala July 14, 2017

246 1 minute read

Law experts have cautioned government on the absence of Attorney General (AG) following the expiry of Kalekeni Kaphale’s three-year contract on June 30, 2017.

Chancellor College-based law expert, Edge Kanyongolo, and Malawi Law Society (MLS) president, Khumbo Soko, said government is at a disadvantage when there is no active AG.

Kanyongolo said the major implication with the absence of an AG is that government will not have a principal legal advisor.

“I would say that one should always have an AG in place; that is the ideal situation. In this case, government does not have a principal legal advisor. In the event that a situation arises and there is need for advice from the AG, then what this means is that government will be at a disadvantage due to his absence. It is important to have a person who is specifically holding such a position,” he said.

However, Soko said, by law, the Solicitor General can act in the absence of the AG but this compromises the work of the Solicitor General.

“Even though the Solicitor General can act in place of the AG, it is obvious that she also has other duties to dispense. Because, in this case, it means she is handling three offices. She is not just the Solicitor General she is also the Secretary for Justice.

“Now it’s like she is handling three offices and one or two offices in her new roles is at a disadvantage. And considering the role that an AG plays, I think there must always be someone to take up the duties when a contract expires,” he said.

Minister of Justice and Constitutional Affairs, Samuel Tembenu, said there is no vacuum in the AG’s office, arguing there is no worry that there is no AG because, according to laws, the Solicitor General is doing the responsibilities of the AG.

“There is no worry that there is no AG. Our set up is that we have two law officers, the first law officer or legal adviser to the government is the AG then seconding him is Solicitor General. These are the advisors to the government. So, now that there is no AG, the Solicitor General is taking up his duties,” he said.

During his three years in office, Kaphale successfully defended the government when Malawi Mobile Limited (MML) claimed K97 billion through the Common Market for Eastern and Southern Africa (Comesa) court as compensation for loss of revenue after government cancelled MML’s licence as the third mobile phone service provider in 2015.