Can a Judge be Acting Attorney General?

By Tererai Mafukidze

The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.

It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.

The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.

Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.

The AG's terms and conditions of office, including salary and allowances are set by the President, while the salary and allowances of judges are set by Parliament through a law. The system adopted for the payment of judges' salaries and benefits is meant to enhance their independence, particularly, from the executive branch of government. It ensures that our judges are not beholden to any person. 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.

Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.

In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!

Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.


The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.

Restrictions on Judges Extra-Judicial Activities

In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”

As an Australian court put it;

l incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
l It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
l Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”

With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.

In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.

Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.

There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?

The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”

It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.

Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.

While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!



Desirability of the Candidate

Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.

But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.

Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.

Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.

Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.

As was stated in the 1989 American case of Mistretta v United States, “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.

The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago;

“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.

Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.

Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.


Tererai Mafukidze is a Zimbabwean lawyer. He writes in his individual capacity.