Attorney-General’s Office Amendment Bill Analysis

Attorney-General’s Office Amendment Bill Summary and Analysis 

Background:

In 2011, Parliament passed the Attorney-General’s Office Act (No. 4 of 2011). The Act was gazetted the same year but never brought into force. At the time, the Attorney-General’s Office comprised of both civil and criminal mandates, with the Directors of Drafting, Prosecutions, Legal Advice and the Civil Division being divisions of the Office. When the Bill was conceptualised it was intended to take officer under the Attorney-General (AG) out of the Public Service. The Office of the AG would itself handle the administrative and technical sides of the various divisions then under the Ministry of Justice, Legal and Parliamentary Affairs and the Public Service Commission (PSC). In other words the AG’s Office would be self-contained, recruiting and firing its own officers without reference to the Ministry or the PSC.

The AG under the old Constitution thus wore many hats: the office was in one breath the principal legal advisor to Government, and at the same time ran the prosecution service on behalf of the State. In 2013, a new Constitution was adopted. A new entity to handle prosecution was created-the National Prosecuting Authority. The AG ceased to handle prosecutions. The Office of the AG became the principal legal advisor to Government. It retained the Directorates of Civil Division, Legal Advice and Drafting. Prosecution moved to the NPA.

The 2013 Constitution put the AG’s Office Act on ice, literally. The AG would be appointed by the President[1]. Under section 76 of the old Constitution, there was provision for the appointment of Deputy Attorneys-General. The 2013 Constitution was silent on these.

Some nine years after the passing of the Act, Government has piloted a Bill to amend the Act.

The Reasons Behind the Bill:

The Memorandum of Principles States as follows:

Section 114 of the Constitution provides for the appointment of the Attorney-General but does not provide for the appointment of his or her deputies. However, section 340(3) of the Constitution gives room for the creation of one or more deputies to any Constitutional appointee. The main purpose of this Bill is therefore to provide for the appointment of the deputies of the Attorney-General so as to enhance the effectiveness and efficiency of the Attorney-General’s Office.

The Long title of the proposed Act states as follows:

To amend the Attorney-General’s Office Act [Chapter 7:19]; and to provide for matters connected therewith or incidental thereto.

Clauses of the Bill:

Clause 2: Preamble:

It repeals the preamble in the Act to align it with the 2013 Constitution. It simply restates provisions of section 114 of the Constitution.

It should be noted that this clause also states that the Bill seeks to create an office of the AG that is independent in order to ensure its effectiveness.

Clause 3: Amendment of Section 2:

This clause defines “law officer.” Officers that served under the AG during the era of the old Constitution were generally referred to as law officers. Some government departments and ministries have lawyers under their purview. The amendment seeks to clarify the matter by redefining the officers. It provides:

law officer” means any civil servant (by whatever title or rank designated) employed otherwise than in the Attorney general’s office in any Ministry to give legal advice or render other legal services to that Ministry, but does not include any civil servant rendering service as a law officer who is—

(a) retained on contract by any Ministry in accordance with section 10A; or

(b) employed in or retained on contract by any security service or a constitutional commission.”.

The clause implies that the AG will assume authority over law officers in departments and ministries other than those specifically excluded by the definition.

Clause 4: Insertion of New Section 2A:

This clause will insert a new section into the principal Act on the appointment of Deputy Attorneys-General. As indicated above they were excluded by the 2013 Constitution. They will be appointed in terms of the new provision, by the President after consultation with the Judicial Service Commission (JSC). The clause also empowers the DAG to act in the absence or incapacity of the AG, and guarantees tenure of office.

 

Clauses 5 & 6:

These are consequential changes arising from the adoption of the 2013 Constitution. They align the provisions amended to section 114 of the 2013 Constitution.

 

Clause 7: Insertion of New Section:

This clause inserts a new section into the Act, which provides as follows:

No Ministry or department of the Government shall engage the services of a person under an employment contract to render any legal services relating to the functions of the Attorney-General’s office without the approval of the Attorney-General.”

 

As advised above, the AG is the principal legal advisor to government. This clause restates that.

Clause 8: Insertion of New Section:

This inserts a new provision into the Act:

22A (1) The Attorney-General’s opinion or advice on a question of law is binding and definitive on all executive arms and branches of the State, unless—

(a) otherwise determined by a court of law, or

(b) the advice or opinion is withdrawn, amended or replaced by the Attorney-General.

(2) No advice or opinion rendered by any law officer referred to in paragraph (a) or (b) in the definition of “law officer” in section 2, shall be binding unless it is in conformity with the advice or opinion given by the Attorney-General on the same question of law.

(3) For the avoidance of doubt it is declared that, subsections (1) and (2) do not apply to any autonomous statutory body that retains the services of a private legal practitioner to render any opinion on a question of law and to provide any other legal services to that body.

 

The proposal is to mark the territory of the AG. Probably for the sake of consistency, it is proposed to ensure that the AG’s Office will be the key player on legal matters for Government.

 

Clause 9: Transitional Provisions:

This is a transitional clause, ensuring a smooth takeover of the centralised legal advice role by the AG for government. It provides:

On the date of commencement of this Act, every law officer as defined in section 2 of the Attorney-General’s Office Act (as amended by this Act) is deemed to be seconded to the Ministry in which he or she had previously been employed, until he or she is reassigned by the Attorney-General.

 Some ministries and departments have legal officers under their wings. It is intended to synchronise their work with that of the AG’s Office, hence this proposal.

[1] Section 114 of the Constitution

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