Speaker of the National Assembly, Richard Msowoya, has said it is not in his interest but Members of Parliament (MPs) and all Malawians to ensure genuine separation of powers among three branches of government.
In an interview on Sunday, Msowoya said the doctrine of separation of powers among the Executive, Judiciary and the Legislature will remain questionable as long as the office of the Attorney General remains a legal representative for all branches.
The Speaker said the current status –quo is benefiting the executive arm of government as it is practically difficult for the Attorney General to defend Parliament or Judiciary when there is a conflict with the executive, which is the appointing authority.
“It is up to the MPs to move on and change that law. It is not in the Speaker’s interest, it is about the country. And this is not only for the Parliament; it is also for the Judiciary. We need to have independent legal representatives for these branches. If we have Attorney General representing all the branches, there will always be something wrong in terms of separation of powers,” Msowoya said.
He said people should not look at the call for independent legal representation in a shallow sense thinking that a particular individual is going to benefit from the change.
“This is about enhancing democracy, so that matters that come on the table are properly handled other than looking at one person who is always thinking of what his or her boss says or wants,” he said.
Msowoya also said Parliament has lost a lot of court cases due to the absence of a dedicated legal representation.
“We had a situation where so many people were arrested for being suspected to have swindled money at Parliament. We took the matter to court, the Attorney General’s office did not go to the court which made the court acquit the people. When we really know that those people abused funds,” Msowoya said.
In an earlier interview, legal commentator Justin Dzonzi said with respect to legal proceedings, the three branches of government should be capable of being independently sued and of independently defending themselves.
“So, the Executive should have its own in-house legal person. Parliament should also have its own legal counsel. So, if there is anything that Parliament has to be sued for, then you should sue that specific office and that lawyer for Parliament should be the one going to court and the same should be for the Judiciary,” he said.
Attorney General Kalekeni Kaphale said he does not see any problem in the current arrangement as the office has been objective in its endeavours.
“It depends on their definition of conflict because I have never come across such a situation. Under section 98 of the Constitution, the office of the Attorney General is supposed to give objective and impartial advice, which my office has done in the past and is doing now. So, if somebody doesn’t like advice, they should not hide under the mantle of lack of objectivity,” Kaphale said.
He said the issue was already settled in a Supreme Court judgement where it was said that only the Attorney General can legally represent the three branches of government.
“None of the branches of government is a legal person in its own right. So, as long as they are not legal personalities they are not capable of appointing anybody to represent them. They can only be represented by Attorney General, in accordance with the constitutional set up and the constitution encourages the Attorney General on duty to be objective and impartial which the office has lived up to.
On the amendment of the constitution to facilitate the establishment of independent legal counsels for the branches, Kaphale said it is up to people of Malawi to decide.
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