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
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,
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
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.
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.
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.
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.
"' ?" (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
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:
"The powers and functions of the Attorney-General shall be:-
to exercise the final responsibility for the
office of the Prosecutor-General;
to be the principal legal advisor to the President
: ^ and the Government;
to take all action necessary for the protection and upholding of the Constitution;
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:
The Prime Minister (Article 32(3)(i)(aa);
Ministers and Deputy Ministers (Article 32(3)(i)(bb); and
The Director-General of Planning (Article 32(3)(i)(dd).
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
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.
(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;