Justice is a delicate balance. In a constitutional democracy such as Malawi, that balance must never be determined by the identity, political influence or public standing of those who appear before the courts. It must be guided by the Constitution and the law.
Malawi is once again witnessing a legal controversy that invites citizens to look beyond personalities and focus on the constitutional responsibilities of public institutions.
Attorney General Frank Mbeta has joined court proceedings involving Speaker of Parliament Sameer Suleman and a private citizen, Austin Mkoka.
The dispute centres on an injunction that halted the formation of 12 parliamentary committees intended to investigate the affairs of certain statutory institutions.
According to a report in The Daily Times of 9 October 2026, Mbeta entered the matter as an interested party to address constitutional and legal questions arising from the dispute, particularly those relating to the separation of powers.
For clarity, Mbeta is not appearing as the Speaker’s private lawyer.
The Speaker is separately represented by Counsel Bright Theu.
That distinction is important.
The real question is not whether the Attorney General has entered the courtroom.
Rather, it is in what capacity he has done so, for what purpose and within what constitutional limits.
So what does the Constitution say about the Attorney General in the present circumstances?
Section 98(1) of the Constitution of the Republic of Malawi provides that: “There shall be the office of Attorney General, who shall be the principal legal adviser to the Government.”
This provision creates an institutional responsibility.
The Attorney General is not merely a lawyer for individual office holders.
Nor should the office be reduced to a political instrument used to defend whoever happens to occupy a position of authority.
The Attorney General’s duty is to advise Government on the law, safeguard constitutional governance and ensure that disputes involving public authority are addressed within the proper constitutional framework.
There is, however, an important qualification.
Section 98 does not make the Attorney General the private lawyer of every Malawian simply because that person is a citizen.
The office serves Government in its institutional capacity.
Its responsibilities are defined by the Constitution and guided by the public interest.
Section 12(1) of the Constitution reinforces this principle by recognising that state authority derives from the people and must be exercised in accordance with the Constitution and in their interests.
The people are therefore the ultimate source of state authority.
Public office is a trust, not a personal entitlement.
No holder of public power is free from accountability.
The Supreme Court’s Guidance
The Supreme Court of Appeal has already provided significant guidance on this issue.
There is well-established case law on the proper role of the Attorney General in constitutional proceedings.
The leading authority is Professor Arthur Peter Mutharika and the Electoral Commission v Dr Saulos Klaus Chilima and Dr Lazarus McCarthy Chakwera, MSCA Constitutional Appeal No. 1 of 2020.
That landmark case addressed several constitutional questions, including the proper role of the Attorney General once litigation evolves into a constitutional referral.
In its judgment, the Supreme Court held that once the proceedings became a constitutional referral, the Attorney General should have “stepped back and ceased to represent the second appellant.”
Why did the Court take that position?
The answer lies in the constitutional character of the Attorney General’s office.
The Court recognised that in constitutional proceedings the Attorney General’s responsibility extends beyond securing victory for the party initially represented.
The office also has a duty to assist the court in resolving constitutional questions.
This draws a crucial distinction.
There is a difference between acting as an advocate for a particular litigant and serving as a constitutional law officer assisting the court.
Those two roles cannot always be performed simultaneously.
Where they conflict, the constitutional responsibility must prevail.
That principle does not require the Attorney General to abandon constitutional litigation altogether.
Rather, it underscores that the manner of participation matters.
This brings us to the central question.
Does Mbeta’s participation as an interested party violate this principle?
On the facts currently available, I do not believe it does.
There is a material difference between acting as the Speaker’s personal advocate and participating in proceedings to address constitutional questions about the powers of state institutions.
The Speaker already has his own legal representation.
Mbeta’s reported intervention appears directed at the constitutional and legal issues raised by the dispute.
That distinction is supported by the decision in Jam Willem Akster v Attorney General, Constitutional Referral No. 2 of 2021 [2021] MWHC 208.
In that case, the High Court considered Order 19 Rule 8 of the Courts (High Court) (Civil Procedure) Rules, 2017.
The rule requires constitutional proceedings to be served on the Attorney General whether or not the office is already a party to the case.
The Court explained that the Attorney General may decide whether participation is necessary.
More importantly, it reaffirmed that once involved in constitutional proceedings, the Attorney General must assist the court rather than take sides.
That guidance is directly relevant to the current controversy.
Where substantial constitutional questions arise concerning the boundaries of public power, the Attorney General’s participation may be entirely consistent with the constitutional responsibilities of the office.
Indeed, refusing to participate in a major constitutional dispute could deprive the court of a valuable institutional perspective.
Separation of Powers and Constitutional Duty
The nature of the Attorney General’s submissions remains important.
Simply joining proceedings as an interested party does not automatically guarantee neutrality.
The substance of the participation must reflect the constitutional role of the office.
The doctrine of separation of powers is not merely a political slogan.
It is one of the Constitution’s most important safeguards.
Sections 7, 8 and 9 of the Constitution recognise the distinct functions of the Executive, Legislature and Judiciary.
The Executive implements laws and conducts government policy.
The Legislature enacts laws.
The Judiciary interprets, protects and enforces both the Constitution and the law.
Each institution has its own responsibilities.
None is above constitutional limits.
Section 10(1) identifies the Constitution as the supreme arbiter and ultimate source of authority in interpreting laws and resolving political disputes.
Section 12 further provides that no institution or person shall stand above the law.
These are not merely decorative constitutional phrases.
They are safeguards designed to prevent the concentration and abuse of power.
Whenever the limits of parliamentary authority, judicial intervention or executive responsibility are disputed, those questions must be resolved according to law.
The Attorney General may legitimately contribute to that process.
However, the office must not become a partisan combatant where objective constitutional assistance is required.
Its role is to clarify the boundaries of lawful authority, not to bend those boundaries in favour of those holding power.
Kafantayeni and Constitutional Restraint
Malawi’s legal history provides another instructive example.
In Kafantayeni and Others v Attorney General, Constitutional Case No. 12 of 2005 [2007] MWHC 1, the High Court considered the constitutionality of the mandatory death penalty for murder.
The judgment records that the Attorney General at the time, Justice Dr Jane Ansah, informed the court that the State would adopt a neutral position instead of presenting oral arguments on the constitutional issues before it.
It was an example of significant institutional restraint.
Dr Ansah neither argued for nor against the constitutional challenge.
She indicated that the State would abide by whatever decision the court ultimately reached.
The court also noted that written submissions opposing the action had previously been filed on behalf of the Attorney General.
That detail is important.
Constitutional restraint does not necessarily require complete silence.
Rather, it requires recognition that some constitutional disputes demand a different approach from ordinary adversarial litigation.
The court proceeded to determine the issues on their merits.
The lesson remains relevant today.
The Attorney General’s duties do not end with defending the immediate interests of the State.
They also include respect for the constitutional role of the courts and the legal questions entrusted to them.
The real danger therefore lies not in participation itself, but in partisanship.
We should be careful not to assume that the Attorney General’s mere presence in court amounts to a breach of constitutional neutrality.
Instead, the critical questions are these:
Is the Attorney General addressing genuine constitutional issues?
Is the office assisting the court in resolving important questions of law?
Is the Attorney General avoiding the conflict that arises when one attempts to act both as a partisan advocate and an impartial constitutional adviser?
Those are the standards by which public scrutiny should be guided.
The Constitution does not require the Attorney General to disappear whenever a politically sensitive dispute reaches the courts.
It requires the office to act within its lawful mandate and to respect judicial independence.
If Mbeta has joined the proceedings to assist the court on constitutional questions, his participation is legally distinguishable from representing the Speaker’s personal interests.
If his submissions evolve into partisan advocacy, however, legitimate concerns about conflict of interest would arise.
That is the line the law requires us to examine.
Defending Power or Upholding the Rule of Law?
The Constitution establishes the Attorney General as Government’s principal legal adviser.
The Supreme Court of Appeal has already made it clear that in constitutional proceedings the Attorney General may need to step away from representing a particular litigant and instead assist the court in resolving constitutional questions.
That principle does not prohibit participation.
It demands the correct form of participation.
The Attorney General must not become the Speaker’s shield against a private citizen.
Neither should the office be used to undermine Parliament or any other institution of state.
Its primary duty is to the Constitution and the proper administration of justice.
Ultimately, the dispute belongs to the courts.
The Attorney General may assist in clarifying the law, but must never attempt to determine the outcome.
As citizens, we should develop the habit of reading court judgments.
We should study the Constitution.
We should examine legal arguments carefully and distinguish political disagreement from constitutional principle.
A constitutional democracy cannot survive on headlines, rumours and partisan loyalties alone.
It requires citizens who understand that public power is limited by law and that courts must remain free to resolve disputes independently.
The ultimate question is not whether the Attorney General’s intervention pleases one political camp or frustrates another.
The real question is whether the intervention serves the Constitution.
On that basis, my position remains unchanged.
Attorney General Frank Mbeta is not necessarily wrong to join the Speaker’s case.
The decisive test is whether he participates as a constitutional law officer assisting the court, rather than as a partisan advocate for one side.
That is the difference between defending power and upholding the rule of law.
As the current legal battle unfolds, one question remains paramount:
Will the office of the Attorney General stand as a neutral constitutional anchor for all Malawians, or will it become an instrument of the powerful?
- The author is UK-based Malawian-trained lawyer and journalist.
