Role and Responsibilities
The Attorney General is the Chief Legal Advisor to the Government. In that capacity he advises the Government, Government Departments, Statutory Boards and Public Corporations in respect of all legal matters. He conducts prosecutions in criminal cases and appears on behalf of the Government, Government Departments, Statutory Boards and Public Corporations in any Court or Tribunal
The Attorney-General plays an important role with regard to criminal matters andÂ in certain instances acts in a quasi-judicial manner. He tenders advise, either upon advice being sought or on his own initiative to State Departments, public officers, officers of the Police and other armed forces and officers in Statutory Boards and Public Corporations in respect of any criminal matter of importance or difficulty. Specific provisions have been included mainly in the Code of Criminal Procedure Act No. 75 of 1979 (as amended from time to time) as well as in the Judicature Act No. 2 of 1978 (as amended from time to time). All Indictments against persons accused of serious criminal offences are forwarded to the High Court in the name of the Attorney-General and Section 193 mandates that the prosecution shall be conducted by the Attorney General or the Solicitor General or a State Counsel or by some pleader generally or specially authorized by the Attorney General in that behalf.
Some of the powers vested in the Attorney General are as follows:
- Direct the Police to institute criminal proceedings in the Magistrates' Courts
- The power to grant sanction to institute criminal prosecutions in respect of certain criminal offences and to grant sanction to appeal from an order of acquittal by a Magistrate
- The power to tender a pardon to accomplices.
- Power to call for the original record of Magistrate's Courts and the High Courts.
- Power to quash a committal made by a Magistrate in Non Summary Proceedings and issue instructions to a Magistrate
- Power to direct a Magistrate to commit an accused who has been discharged in Non Summary Proceedings.
- Order a Magistrate in Non Summary Proceedings to take further evidence as may be specified or to record the evidence of any expert witness
- Power in his discretion to inform the High Court that the accused will not be further prosecuted upon the Indictment or any charge therein (enter a "Nolle Prosequai")
- Power to transfer any inquiry into or trial of any criminal offence from any court or place to any other court or place
- Power to decide the Magistrate's Court having jurisdiction to try a case when opinion is sought by a Magistrate who is in doubt.
The Attorney-General also makes his recommendation to His Excellency the President as to whether or not the sentence of death passed on an accused may be carried out.
As regards civil matters, the Attorney-General advises the Government, Government Departments, Statutory Boards and Public Corporations in respect of all legal matters, as well as, appears for them in any Court or Tribunal.
The Attorney Generals' views are sought and approval obtained with regard to legal matters in respect of major Agreements, including Foreign Loan Agreements.
All actions by or against the State are filed by or against the Attorney-General. Section 461 of the Civil Procedure Code requires that before any action is filed against the Attorney-General, a Minister, Secretary or a public officer a month's notice of action should be given. The purpose of such notice is to afford the Attorney-General an opportunity of considering whether the claim is justified and if so whether relief should be granted to such person without the necessity of his having to resort to litigation.
With regard to powers and duties vested by the Constitution, Article 77 of the Constitution stipulates that it is the duty of the Attorney-General to examine Bills and to advise the President if any of the clauses are inconsistent with the provisions of the Constitution and whether they have to be passed by a special majority prescribed by the Constitution. An officer acting on behalf of the Attorney-General attends Parliament when Bills are debated and advises the Speaker on the constitutionality of any amendment that is proposed.
As a matter of practice, the Legal Draftsman forwards to the Attorney-General a copy of every draft Bill. The Ministry concerned takes steps to have the Bill gazetted only after the Attorney-General certifies that its provisions are not in-consistent with the constitution. This practice has made it possible to ensure in the early stages of drafting legislation that proposed laws do not contravene the provisions contained in the Constitution, especially those relating to fundamental rights.
Article 134 of the Constitution provides that the Attorney-General shall be noticed and has the right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction in the following cases:
When the Court exercises its jurisdiction in examining Bills for constitutionality (Article 120, 121 and 122)
When any question relating to the interpretation of the Constitution is under consideration by the Court (Article 125)
When the Court hears any complaint of breach of fundamental rights guaranteed by the Constitution (Article 126)
When the Court exercises its consultative jurisdiction upon reference of a question of law or fact of public importance referred to the Court by the President (Article 129(1))
When the Court exercises its jurisdiction in respect of breaches of Parliamentary privileges (Article 131)
Under Article 105 (3) of the Constitution, the Supreme Court and the Court of Appeal have the power to punish persons for contempt of court including contempt ofÂ lower courts of original jurisdiction. In exercising their jurisdiction, with regard to contempt of court matters, the Supreme Court and the Court of Appeal seek the assistance of the Attorney General with regard to the drafting of the rule that is to be issued on the person so accused. An officer of the Attorney Generals' Department appears as amicus curiae when the matter comes up for hearing.
In the conduct of disciplinary proceedings against Attorneys-at-law by the Supreme Court, the relevant material is forwarded to the Attorney-General by the Registrar of the Supreme Court seeking the assistance of the Attorney-General with regard to the drafting of the Rule. An officer of the Attorney Generals' Department appears in Court and assists the Court when the rule comes up for hearing.