Appointment of acting Attorney General is unconstitutional

By Lance Guma
11 January 2008

The recent appointment of Justice Bharat Patel as acting Attorney General, following the suspension of Sobuza Gula Ndebele, has been described as unconstitutional. Lawyer Tererai Mafukidze told Newsreel the appointment raises serious concerns about judicial independence and separation of powers in general. He said the concerns would not arise if Justice Patel had resigned his position as a judge, but for him to hold the two positions concurrently puts him in a compromising position.

Mafukidze said a judge is meant to decide disputes between citizens, and also between citizens and the state. By accepting a role as Acting Attorney General, Patel has effectively become the principal legal advisor to government. He said; ‘By accepting this appointment, Justice Patel has put himself in danger of being beholden to the executive. Such control of a judicial officer contravenes the independence of the judiciary, as enshrined in the constitution.’ As long as Patel holds the two positions he is not free from political influence the lawyer said.

The substantive Attorney General, Sobuza Gula Ndebele, was suspended following politically motivated accusations that he secretly met wanted ‘fugitive’ banker James Mushore and offered him an immunity deal. Speculation is rife however that Gula-Ndebele is being punished for aligning himself with a faction of the ruling Zanu PF party, led by retired General Solomon Mujuru. With Gula Ndebele suspended Mafukidze said the state was supposed to get the deputy AG to take over. The problem was that Gula Ndebele did not have a deputy at the time.

The independence of the judiciary has always been a controversial issue in the country. Several upright judges were victimised out of office while those who were loyal to the Zanu PF regime were rewarded with farms and other perks. Court cases involving the opposition have dragged on for an eternity, leaving little in the way of doubt that many of the judges take political instructions. Mafukidze was keen to stress that Justice Patel remained a talented lawyer who has done a good job in all his positions, but his latest appointment was not about ‘suitability’ but ‘compatibility.’ Government is relying on the fact that people will not know the appointment is unconstitutional, Mafukidze added.

.