The Attorney General Case

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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. 1994.10.03 & 1994.12.00 1995.07.13

Heard on: Delivered on:

APPEAL JUDGMENT

LEON, A.J.A. : -

This is a petition brought by the Attorney-General of the

2 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 Namibia.^ 87(c) of the Constitution of the Republic of

This Court relationship

is requested between in

to determine the

the constitutional and the to

Attorney-General of issues

Prosecutor-General hereunder: -

respect

referred

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

3 provisions of the Constitution. For immediate purposes I

shall only refer to the provisions for Article 87 (a) v/hich 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 However,

three questions should be answered in his favour.

during argument the Court put to Mr Henninc, who appeared for the Prosecutor-General, the question as to whether it was possible for for the Attorney-General the omce of the to exercise final Prosecutor-General

responsibility

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 v/as 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
i

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 I do functions. not wish to By imply the using in any the way or word any the

"regrettable" criticism

whatsoever

of - either

Applicant

4 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. of Namibia Indeed and in the case of the

Attorney-General Gorelic!^ and

the

Prosecutor-General. Strydom J.P. in my

Others

Case No. C2/93

respectful view quite correctly observed that: "The issue is...
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