Ex Parte: Attorney-General In Re: Constitutional Relationship Between Attorney-General and the Prosecutor-General (SA 7/93) [1995] NASC 1; 1995 (8) BCLR 1070 (NmS) (13 July 1995)

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Ex Parte: Attorney-General In Re: Constitutional Relationship Between Attorney-General and the Prosecutor-General (SA 7/93) [1995] NASC 1; 1995 (8) BCLR 1070 (NmS) (13 July 1995)

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REPORTABLE
CASE NO. SA 7/93
IN THE SUPREME COURT OF NAMIBIA
WINDHOEK, THURSDAY 13 JULY 1995
BEFORE ' THE HONOURABLE MR JUSTICE MAHOMED, C.J.
TKS HONOURABLE MR JUSTICE DUMBUTSHENA, A.J.A. THE HONOURABLE MR JUSTICE LEON, A. J.A.
In the application
EX PARTE : ATTORNEY-GENERAL
in re :
THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE ATTORNEY-GENERAL
AND THE PROSECUTOR-GENERAL
CORAM: Mahomed, C.J.; Dumbutshena, A. J. A., et Leon, A. J. A. Heard on: 1994.10.03 & 1994.12.00 Delivered on: 1995.07.13
APPEAL JUDGMENT
LEON, A.J.A. : -
This is a petition brought by the Attorney-General of the

Republic of Namibia in terms of section 15(2) of the Supreme Court Act, 1990 (Act no. 15 of 1990). This Court is asked to hear and determine a constitutional question referred to us by the Attorney-General under the powers vested in him by Article 87(c) of the Constitution of the Republic of Namibia.^

This Court is requested to determine the constitutional relationship between the Attorney-General and the Prosecutor-General in respect of issues referred to hereunder: -

Whether the Attorney-General, in pursuance of Article 87 of the Constitution and in the exercise of the final responsibility for the once of the Prosecutor-General, has the authority:

(i) to instruct the Prosecutor-General to institute a

prosecution, to decline to prosecute or to

terminate a pending prosecution in any matter;

(ii) to instruct the Prosecutor-General to take or not

to take any steps which the Attorney-General may

deem desirable in connection with the preparation,
i .
institution or conduct or any prosecution;
(iii) to require that the Prosecutor-General keeps the

Attorney-General informed in respect of all

prosecutions initiated or to be initiated which

might arouse public interest or involve important

aspects of legal or prosecutorial authority.
I shall refer later herein to the ' relevant detailed

provisions of the Constitution. For immediate purposes I shall only refer to the provisions for Article 87 (a) which provides that the Attorney-General is:-

" (a) to exercise the final responsibility for the once of the Prosecutor-General".

3oth in his replying acdavit and in the Heads of Argument the Prosecutor-General adopted 'the stance thac the three questions posed resolved themselves into one over-arching question: was the Prosecutor-General truly independent under the Constitution? If he was, then it must follow that all three questions should be answered in his favour. However, during argument the Court put to Mr Henninc, who appeared for the Prosecutor-General, the question as to whether it was possible for the Attorney-General to exercise final responsibility for the omce of the Prosecutor-General unless he was kept informed of the matters raised in (iii) above. If he was not so informed he would not be able to explain what was happening in regard to those matters when they were raised with him and would therefore not be in a position to exercise final responsibility for the omce. After due consideration Mr Hennina conceded that, in the

circumstances, the Attorney-General was correctly entitled to the declarator sought in (iii) above.

A regrettable and sharp difference of opinion has arisen between the Attorney-General and the Prosecutor-General as to their respective functions. By using the word "regrettable" I do not wish to imply in any way any criticism whatsoever of - either the Applicant or the

Respondent. On the contrary, the differences of opinion have occurred because of views strongly and sincerely held by both of them each being supported by senior legal advice from his own Department. Indeed in the case of the Attorney-General of Namibia and the Prosecutor-General. Gorelic!^ and Others Case No. C2/93 Strydom J.P. in my respectful view quite correctly observed that:

"The issue is a complex one which can have far-reaching consequences. The articles and sections which will have to be interpreted are certainly not clear cut."

There_; are certain disputed matters of fact in the aadavits to which it is not necessary to refer. However I shall refer to some of the others by way of background and to illustrate some of the practical problems which have arisen.

Conflicts have arisen as to whether a prosecution should be postponed or not where the Attorney-General took the view that an opinion should first be sought and obtained while the Prosecutor-General took the opposite view. Conflict has arisen over the applicant's claim that he is entitled to

peruse police dockets while it was the respondent's contention that it would be unethical for him to disclose such privileged information to the applicant.

The respondent does not, as a matter of course, keep the applicant informed in advance of prosecutions initiated or to be initiated which are important from the public interest point of view or which might arouse public interest or

5
involve important aspects of legal or prosecutorial policy.

There has been a good deal of correspondence on the dispute between the parties and other public omcials.

In Marchr 1992 the applicant reported the respondent to the Judicial Services Commission on che ground that he was guilty of insubordination. On 10 April 1992 the Secretary-General of the Judicial Services Commission wrote to the applicant expressing the views of that body with respect to the complaint. Part of the letter reads as follows:-

"(a) It is quite apparent that there is a strong difference of opinion in regard to the interpretation of the relevant provisions of the Constitution of the Republic of Namibia and the provisions of the Criminal Procedure Act dealing with the relationship between the Attorney-General and the Prosecutor-General.

(b) The Commission is satisfied that the
Prosecutor-General bona fide believes, and at
all relevant time believed, in the

correctness of his interpretation, i.e. that

the Attorney-General does not have

unrestricted authority and control over the

office of the Prosecutor-General.

(c) The Commission is furthermore satisfied that
the Prosecutor-General in those instances
that he refused to take instructions from the
Attorney-General, did so in the genuine
belief that'he was legally entitled to do so.

(d) In the premises it cannot be said that the
Prosecutor-General was in wilful default or
that he displayed insubordination by the
conduct in question.

(e)

"' ?" (f) It is recommended that the Attorney-General
refer the matter in terms of Article 79(2) of
the Namibian Constitution to the Supreme
Court to obtain a decision, which will be
binding on all parties "

The dispute between the parties came to a head in Gorelick' s case -(supra) in which, after some initial exchanges relating to the applicant's right to inspect a police docket, the applicant on 20 August 1993 instructed the respondent to withdraw the prosecution which the respondent refused to do intimating that he intended to ask the Court to proceed with the matter. The applicant then applied for a postponement of the trial pending a decision by this Court on the constitutional relationship between the Attorney-General and the Prosecutor-General and the status of their respective onces. The matter came before the Full Bench of the High Court (STRYDGM, J.A., LEVY, and FRANK, J.) and it was in the course of his judgment granting a postponement that STRYDOM J.P. made the remarks referred to earlier herein.

It is the applicant's case that his constitutional duty is that of guardian of the public interest and of the Constitution and that his function is similar to that of the Attorney-General in England "and Wales and other countries or

the Commonwealth whose established conventions and/or constitutions provide for the exercise of the functions by an Attorney-General in circumstances where the Attorney-General is wholly accountable for the functions of the office*'-"'of the Prosecutor-General (in most countries referred to as the Director of Public Prosecutions) with the ultimate powers of direction consonant with the Attorney-General's responsibility for the office of the Prosecutor-General.

Secondly, it is the applicant's case that there cannot be ministerial responsibility to the President and to Parliament and the concomitant responsibility for prosecutorial decision that it implies, without ultimate superintendence, direction and control being vested in the Attorney-General over the oace of the Prosecutor-General in regard to decisions to prosecute, not to prosecute or to discontinue prosecutions. In a famous aphorism Stanley Baldwin once said that "power without responsibility is the prerogative of the harlot throughout the ages". Mr Soacrott, who appeared for the applicant, claimed that while it is easy to exercise power without responsibility it is not possible to be responsible without exercising power. And

the Constitution provides, as I have shown that the Attorney-General has "final responsibility for the o3ce of the Prosecutor-General".

Thirdly, it is the applicant's case that the provisions of sec 3(5) of the South African Criminal Procedure Act 51 of 1977 are applicable and that therefore the Prosecutor-General prosecutes subject to the directions of the

8
Attorney-General.

These propositions were all resisted by the Prosecutor-General and on his behalf by Mr Hennina who, apart from conceding prayer (iii), contended that under the Namibian Constitution the Prosecutor-General in the exercise of his functions and in the performance of his duties is independent.

When the matter was first argued it was assumed by both counsel that the Attorney-General in Namibia is a Minister and a member of the executive by virtue of hisomce. At the second hearing is was correctly conceded in reply to a question raised by this Court at the earlier hearing that this is not correct. While the present incumbent is indeed a Minister and a member of the Cabinet there is nothing in the Constitution which requires him to be such or indeed to hold political oace. However it is clear from what follows that he is a political appointee.

The Constitution of the Republic of Namibia was published on Independence Day, 21 March 1990. In terms of the

Constitution, the oaces of the Attorney-General (Article 86) and the Prosecutor-General (Article 33) are constituted. The powers and functions of the Attorney-General are set out in Article 87 and those of the Prosecutor-General in Article 88 (2) .

The respective Articles read as follows:-
Article 87(a) of the Constitution provides:

9
"The powers and functions of the Attorney-General shall be:-
(a)     to exercise the final responsibility for the
office of the Prosecutor-General;
(b)     to be the principal legal advisor to the President
^: ^ and the Government;
c)       to take all action necessary for the protection and upholding of the Constitution;
d)       to perform all such functions as may be assigned to the Attorney-General by Act of Parliament."
Article 86 provides:
.."There will be an Attorney-General appointed by the President in accordance with the provisions of Article 32(3)(1)(cc) thereof." [The correct reference should be Article 32(3)(i)(cc)]

Article 32 generally provides for the functions, powers and duties of the President.

Article 32(3) (i) (cc) confers on the President the power, subject to the Constitution, to appoint the Attorney-

General. The appointment of the Attorney-General falls into the same category as the appointment of the following omcials:

a)       The Prime Minister (Article 32(3)(i)(aa);
b)       Ministers and Deputy Ministers (Article 32(3)(i)(bb); and
c)       The Director-General of Planning (Article 32(3)(i)(dd).

10
Although the Constitution does not require the Attorney-General to possess any legal qualifications one can assume that in practice he would as he is the Chief Legal Advisor to the President and the Government.

However * it is clear under the Constitution that his appointment is a political one and that his functions are executive in nature.

With regard to the Prosecutor-General, Article 88 of the
Constitution provides:

¹¹ (1) There shall be a Prosecutor-General appointed by the President on the recommendation of the Judicial Services Commission. No person shall be eligible for appointment as Prosecutor-General unless such person:

possesses legal qualifications that would entitle him or her to practice in all the Courts of Namibia;

is, by virtue of his or her experience, conscientiousness and integrity a fit and proper person to be entrusted with the responsibilities of the office of Prosecutor-General.
i

(2) The powers and functions of the Prosecutor-General shall be:

to prosecute, subject to the provisions of the Constitution, in the name of the Republic of Namibia in criminal proceedings;

to prosecute and defend appeals in the criminal proceedings in the High Court and the Supreme Court;

(I pause to observe that it has been held that one of the fundamental functions in exercising a duty to prosecute is the discretion to decide whether to proceed with a prosecution or to withdraw it. Hichstead Entertainment (Ptv) Ltd t/a "The Club" v Minister of Law and Order and Others, 1994(1) SA 387(c) at 3S3 H-394K.)

(d) to designate to other officials/ subject to his or
her control and direction, authority to conduct
criminal proceedings in any Court;

(e) to perform all such other functions as may be
". assigned to him or her in terms of any other law."

Article 32(4) (a) (cc) of the Constitution provides for the appointment of the Prosecutor-General by the President on the recommendations of the Judicial Services Commission. Such appointment falls into the same category as the appointment of the following officials:

(i) The Chief Justice, the Judge President and other Judges of the Supreme Court and the

High Court [Article 32 (4) (a) (aa) ] ;
i (ii) The Ombudsman [Article 32(4)(a)(bb)].

The provisions of the Constitution referred to above suggest to me that the functions of the Prosecutor-General are quasi-judicial in nature unlike the executive functions of the Attorney-General. Moreover the manner of his appointment makes it clear that, unlike the Attorney-General the" Prosecutor-General is not a political appointment

because he is appointed by the Judicial Services Commission. That Commission is constituted under Article 85 of the Constitution and consists of the following persons: The Chief Justice, a judge appointed by the President, the Attorney-General and two nominated members of the legal profession.

One of the problems which I have with the argument of the Attorney-General is that it would mean that a political functionary would take over the functions and powers of the Prosecutor-General which are reserved for the latter under Article 88(2) of the Constitution.

However what makes :he matter a difficult one is that on the one hand the Constitution expressly provides for the Prosecutor-General performing all functions relating to the exercise of his powers [Article 83(2) (c) ] while on the other hand the Attorney-General is required under Article 87 (a) "to exercise the final responsibility for the office of the Prosecutor-General".

"Responsibility" is defined in the Shorter Oxford Dictionary
i
as: "1. The state or fact of being responsible. A charge, trust or duty for which one is responsible. A person or thing for which one is responsible" and the relevant meaning of "responsible" given is "answerable, accountable".

Before dealing further with the rival contentions, it is of particular importance in this case, because the issue is neither simple nor clear-cut, to say a word about

13
constitutionalism and deal thereafter with the manner in which a Court shall interpret a constitution.

In a constitutional State the government is constrained by the constitution and shall govern only according to its terms,'subject to its limitations and only for agreed powers and agreed purposes. But it means much more. It is a wonderfully complex and rich theory of political organisation. It is a composite of different historical practices and philosophical traditions. There are structural limitations and procedural guarantees that limit the exercise of state power. "It means in a single phrase immortalised in 1555 by JAMES HARRINGTON in THE COMMONWEALTH OF OCEANA ^la government of laws and not of men'" OLIVIER: COMSTITUTIONALISM IN THE NEW SOUTH AFRICA (1994) JUTA and AEI PRESS page 3.