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In 1828, Congress enacted a tariff on European goods, which basically benefited the northern states and hurt the southern ones. To get a sense of how badly the North and South split on this issue, just google “Tariff of Abominations.” President Andrew Jackson supported the tariff, and he believed that federal laws, whether states agreed with them or not, were the law of the land. Vice President John Calhoun (a South Carolinian) disagreed violently about both the wisdom of the tariff and a single state’s ability to nullify federal law. Calhoun thought that it violated local “liberty” to have the federal government enact laws that bound the states against their will.

Thus, at a dinner in 1830 to celebrate an anniversary of Thomas Jefferson’s birth, Jackson proposed a toast: “Our Union: It must be preserved.”

Calhoun followed up with another toast: “The Union — next to our Liberty, the most dear.”

Now that’s a president and a vice president who publicly disagreed with each other.

A couple of weeks ago, when Secretary of Defense Mark Esper had the temerity to suggest that maybe the American military should be used only sparingly against the American people, President Donald Trump was ready to fire him.

In today’s executive branch, that feels like dissent.

But those are the exceptions.

Most people are very reluctant to disagree with the boss: The boss is naturally likely to think that his or her ideas are good ones. The boss hears plenty of complaining about things that are happening within the organization, the boss doesn’t need to hear more. (During a global partners’ meeting many years ago, the managing partner of a major law firm displayed a slide to the group: “No whining.” Do you suppose anyone in the audience read that to mean, “Oh! The managing partner wants to hear important suggestions that disagree with the managing partner’s own opinions”?) Basically, it’s no skin off your teeth not to propose ideas that go against the grain. The muckety-mucks propose stupid stuff. You do it. They pay you. That’s the deal, isn’t it?

I suspect that two institutional factors increase the stifling of dissent. First, the longer the boss serves, the less the boss wants to hear dissent. Over time, the boss has been flattered for a long time and becomes accustomed to flattery. The boss starts to think that the boss’s jokes really are funny and that the boss’s ideas are uniformly good. The boss doesn’t need to hear dissenting views.

Second, the larger the size of the organization, the bigger the problem.  Suppose the boss really does like to hear dissent. The boss encourages those in the inner circle to challenge the boss. That may encourage the expression of dissent within the inner circle, but it does nothing for those in the outer circle, the seventh circle, or no circle at all. Mere plebeians naturally think:  “That’s the boss. I should agree.”

How can you fix this?

You can’t, but you can hedge against it. You can assign people the role of dissident. Thus, when the company is considering an acquisition, assign a group of people to oppose the acquisition, making all of the arguments as to why the deal would be a bad idea. Those folks may get voted down, of course, but the institution has at least guaranteed that the dissenting view is presented. Those who express a strong dissenting view are doing their job well and are likely to be credited for it.

It may, sadly, take those sorts of formal assignments to overcome the tendency to agree with the boss. It won’t work for the boss simply to say, at the end of the meeting, “Of course you should let me know if you disagree with this.” That’s a call for crickets.

I’m not calling for crickets.

I’m calling for John Calhoun.

(Wait! Wait! That’s just a rhetorical flourish. I’m not really calling for John Calhoun. States’ rights Southerners before the Civil War held beliefs that any sentient person today rejects, as do I. Or am I perhaps more sensitive about this than I should be?)

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Just when you think you have seen it all, there is always something new to surprise you. In over 25 years of legal practice, that maxim holds true today more than ever. Sadly, it proved itself once again when I learned that someone has filed a federal trademark application for the name “George Floyd.” The applicant is not one of Floyd’s relatives or his estate, but a third party that, as far as I can tell, seems to have no affiliation with Floyd. Any number of reasons may exist for this filing, but there is an opportunity here to shed some light on obtaining trademark registrations for surnames (let alone those of deceased individuals) that is worth a closer look.

First and foremost, there is little information on the underlying motives for the filing of the trademark application with the USPTO, but there is a lot we can glean from the filing and its filing basis. The federal trademark application was filed on an intent-to-use basis by an individual, Munemom Mushonga, of Miami, Florida. The trademark application, Ser. No. 88949571 was filed in International Class 41 for “[p]roduction and distribution of television shows and movies.” As an intent-to-use application, it would be safe to assume that Mushonga intends to create (or have created) content for television shows or movies involving Floyd’s horrific death while being placed under arrest by a now-former Minneapolis police officer. So there is an individual who seeks (but has yet) to use Floyd’s name as a trademark for content most likely involving Floyd’s death.

Of course, this applicant is not the first to try to capitalize off of trending terms or catchphrases from current events. In fact, my first article for Above The Law addressed the opportunistic attempts to trademark “covfefe” and why the reasons for doing so were misguided and ill-advised. What is important to understand, here, however, is that this applicant is dealing with far more issues than he realizes and little prospect of success on the merits.

The most obvious issue is the fact that a third-party is trying to trademark a person’s name. Oddly enough, this is not problematic per se — the USPTO permits a person’s name to operate a trademark and obtaining registration.  Specifically, Section 813 of the Trademark Manual of Examining Procedure (TMEP) states that “[w]hen a name, portrait, or signature in a mark identifies a particular living individual, or a deceased president of the United States during the life of his widow, the mark can be registered only with the written consent of the individual, or of the president’s widow, respectively.” The operate requirement here is that consent of the living person (whether that of the living person whose name is being trademarked or the widow of the deceased president). Needless to say, those requirements can’t be met here, but it is not the end of the inquiry.

A bigger issue here is that the name is primarily a surname, and as such, will require proof of secondary meaning. Specifically Section 1211 of the TMEP requires that “a mark that is primarily merely a surname is not registrable on the Principal Register absent a showing of acquired distinctiveness under §2(f).” Whether a mark operates primarily as merely a surname depends on the primary significance of the mark as a whole to the purchasing public, and is shown by evidence supporting the acquisition of secondary meaning. The Trademark Trial and Appeal Board (TTAB) has identified specific five examples of inquiries that may lead to evidence regarding such perception: (1) whether the surname is rare, (2) whether the term is the surname of anyone connected with the applicant, (3) whether the term has any recognized meaning other than as a surname, (4) whether it has the “structure and pronunciation” of a surname, and (5) whether the stylization of lettering is distinctive enough to create a separate commercial impression. Although not exhaustive, it doesn’t take a great deal of investigation to find that the trademark operates as primarily a surname, and that proof of secondary meaning will be essential to registration. I would not get my hopes up on that one.

Whether the applicant is seeking to exploit this tragedy is something I will let the readers decide, but it is hard to escape the notion that this attempt to register Floyd’s name is an exercise in opportunism and misunderstands the bases necessary to qualify for federal trademark registration. It’s bad enough that Floyd has his life taken from him, but it’s something else entirely for someone who does not appear related to him to exploit his name after death. Perhaps this applicant wishes to produce content that has a noble purpose to inform and shape the national conversation, maybe even create a vehicle to financially assist Floyd’s family while keeping his name alive as a brand to help eliminate police brutality and racism. Or … it’s just another attempt to make a buck, which if true, is tragic. In any event, the USPTO will not let this application proceed without strong evidence of secondary meaning. Turns out there is a lot more to federally registering surnames as trademarks than most people realize, and in this case, that fact is most definitely a good thing.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

As bar examiners around the country scramble to draft liability waivers for COVID exposure that have almost no chance of holding up in court, the state of Washington has surveyed the landscape and opted to embrace rationality instead. The state will offer an emergency diploma privilege admission for those signed up for the July bar exam.

The policy extends to graduates of ABA-accredited law schools, with those who don’t meet that meager hurdle and those who are really banking on a portable score eligible to take the UBE at a later date.

This is, of course, the best of all possible results. Not only does it afford those looking to practice in the state immediate access to earning their livelihood, but it cuts down on the space required for the September administration of the UBE. With everyone content to practice in Washington already admitted, the UBE administration will be able to socially distance examinees even more without having to resort to booking more costly venues.

It makes so much sense that it’s disturbing how few states have embraced this solution yet. While some of us would like a permanent diploma privilege plus system that would go hand-in-hand with an aggressive overhaul of the accreditation process to make costly law school diplomas true guarantees of subject matter competence and access to the profession, the present crisis doesn’t require going all the way there. States just need to be willing to say, “we’re writing off 2020 because the freaking plague is back” and start fresh planning the 2021 bar exam.

One byproduct of the COVID crisis will be a sobering look at which state professions are governed by folks with some kind of vision and which are run by mere functionaries who just “square peg, round hole” their existing in-person bar exams because that’s all they’ve ever imagined. That the latter seem to be carrying the day should be upsetting to anyone who cares about the future of the profession.

Here’s the full order, below.

Earlier: First State Opts For Emergency Diploma Privilege Plus Admission
Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Miriam Lacroix is the owner of Lacroix Law, PC, an immigration law firm in White Plains, New York. Her passion for serving the immigration community is deeply personal. Her father is a Haitian immigrant who fell in love with a woman from the Bronx. Her parents refused to allow borders to keep them apart, and 30-plus years later, they are glad they didn’t. Lacroix’s work focuses on uniting and reuniting families and has a particular emphasis on helping survivors of domestic violence. 

She is also the creator of the first-ever Black Legal Wellness Forum. This event is for the black community to better understand the ways in which systemic racism is impacting many aspects of their lives, including criminal law, estate planning, employment law, real estate, copyright/trademark law, and immigration. The panelists at the forum will explain how these systems are not serving the black community, their rights under different areas of law, and ways that they can better protect and advocate for themselves when interacting with the law.

I could tell you all about why she decided to create the Black Legal Wellness Forum, but I think I’ll just let her tell you herself: 

“At a time when so many people in this country are taking action and speaking out against the systemic racism that has led to many deaths of black and brown people, I thought about what I could do myself, as a lawyer, to effect change. I realize that police brutality is just one factor of systemic racism. Racism is a power dynamic that affects many aspects of our lives including, but not limited to, how we interact with the law. As lawyers, our job is to protect our clients from the pitfalls that the complexities of the legal system cause them to fall into. 

I have decided to put on a forum that addresses this and invites the community for a free discussion about how the black community can better navigate legal issues across a variety of areas of law. This forum is for the black community to better understand the ways in which these systems are not serving them, their rights under different areas of law, and the ways that they can better protect and advocate for themselves when interacting with the law.”

Lacroix is the host, moderator, and immigration expert of the Forum. Other panelists include Gilbert Bayonne (criminal law), Michelle N. Robinson (trusts and estates law), Faith Mitton (real estate law), Wendy Dolce (employment law), and Jordan B. Franklin (copyright and trademark law). 

The Black Legal Wellness Forum is taking place on June 25 at 7 p.m. EST (virtually, of course) and you can register here. 

This promises to be a great event and, hopefully, just the first of many. I hope you will consider joining, and sharing this event with your professional networks.

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Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

Goldman Sachs is sorry. Really sorry. Really, really very sorry about the whole Malaysian money laundering, bribery and sovereign-wealth-fund-bilking scandal. Just tremendously sorry about not taking a close enough look at that Tim Leissner guy, or that other guy, or that other, sort of mysteriously rich guy. So, so incredibly sorry that David Solomon has actually said “I’m sorry” a number of times for something that, you know, really wasn’t his fault, if you think about it. Isn’t that enough? Because, honestly, Goldman’s not feeling $2 billion and a guilty plea sorry.

* A lawyer who claims a sleazy, toupee-wearing criminal in the film The Wolf of Wall Street was based on him has lost his defamation lawsuit. [Business Insurance]

* The New York Attorney General is interviewing Amazon workers in a probe over Amazon’s COVID-19 response. [CNN]

* A Florida lawyer is facing ethics charges over a practice at his firm of telling clients the firm settled cases for less money than was recovered and pocketing the difference. [Daily Business Review]

* A new lawsuit alleges that a Drake University coach told a player who accidentally shot another student in the head to lie to the police. [Des Moines Register]

* An appeals court said the judge overseeing Michael Flynn’s criminal case may have picked an “intemperate” lawyer to write an opinion over the Department of Justice’s decision to drop the case. Those are some fighting words. [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Movement for Democratic Change Alliance MP Joana Mamombe and party youth assembly activists Cecilia Chimbiri and Netsai Marova were arrested at their lawyer’s offices.

They had visited the lawyer to discuss another case in which they were charged over their participation in a protest last month.

The three women were admitted to hospital with various injuries after they were arrested in that case and said they had been taken to a place out of town by unidentified men who allegedly sexually assaulted one of them.

Their lawyer, Alec Muchadehama, said the three were charged with “making false statements prejudicial to the state.”

“When they reported their abduction to the police, the police are now saying they were not telling the truth,” Muchadehama told journalists outside the Harare magistrate’s court Friday.

He said they “are denying the charges.”

MDC-Alliance spokeswoman Fadzai Mahere queried how the women could be said to have lied about their abduction and torture when they had injuries to show for the assaults.

On arrival at the court Marova was seen limping and using a crutch, and was helped by Mamombe.

The three were remanded in custody until the magistrate rules on a bail application on Monday.

On Wednesday, nine UN special rapporteurs — who do not speak for the UN but report their findings to it — called on Zimbabwe to drop the earlier charges against the women and stop the reported pattern of disappearances and torture.

“Targeting peaceful dissidents, including youth leaders, in direct retaliation for the exercise of their freedom of association, peaceful assembly and freedom of expression, is a serious violation of human rights law,” they said.

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If you only had $1, you would definitely want to use it wisely and stretch it as far as you can. You wouldn’t just throw away 87 cents of your only dollar. Especially if you found out that you could actually spend just 27 cents to achieve the same goal.

Now let’s apply this example to mobility. A gasoline or diesel car’s internal combustion engine (ICE) literally burns fossil fuels and emits harmful gases. In doing all that, it is only about 13% efficient. This is represented beautifully in this wonderful chart from Transport & Environment that was covered this week by Zachary Shahan:

On the other hand, battery electric vehicles’ efficiency is around 73%. (In this article, we will ignore one of Toyota’s favorite technologies, hydrogen fuel cell cars.)

This story easily applies to a lot of countries, but we will again use Zimbabwe as an example to paint this picture as we saw in our recent article. Ditching ICE vehicles as fast as we can makes a lot of economic sense. Petrol and diesel imports account for a massive 30% of Zimbabwe’s total import bill! That’s about $1.2 billion annually. Don’t forget, they spend a little more on top of that to import ICE vehicle spare parts and engine oils, etc.

Zimbabwe has been experiencing a prolonged petrol and diesel shortage for 3 years and counting, with no solution in sight. The country is struggling to raise foreign currency to import these fossil fuels, so spending 30% of its hard-earned foreign currency by literally burning it in ICE vehicles is just crazy! Zimbabwe earns most of its foreign currency from exporting its mining and agricultural products.

After all that work from families trying to make a living toiling on the farms and mines for several months, the country really should be more prudent with all those hard-earned US dollars. Filling up an ICE vehicle’s tank can also be quite a challenge in Zimbabwe, and it could involve waiting in a queue at a petrol station for a day or two! Charging EVs overnight at homes or at office parks and malls whilst they’re parked could help solve this problem. That’s bringing a solution whose value proposition would be convenience. But the biggest benefit would still be on the financial side.

Let’s take a look at some examples. Zimbabwe has been importing around 70,000 vehicles per year in recent times. Most of these are used vehicles from Japan and the United Kingdom. Most people shop online on sites such as Beforward. Yes, buying a car online is actually quite common in this part of the world, as covered here. After making a payment, the cars generally arrive within 6 weeks. In fact, you can even buy a car online with Bitcoin, especially in countries like Zimbabwe where there is a shortage of foreign currency and moving foreign currency can be a nightmare with long wait times as local banks struggle to meet demand. Some of the popular vehicles that are part of the 70,000 are listed in the table below:

Vehicle	Year Model	Mileage	Retail Cost in Zimbabwe (USD)
Honda Fit (1300 cc)	2010	80,000	$7000
Nissan Bluebird (1800 cc)	2010	70,000	$11,000
Toyota Mark X (2500 cc)	2010	90,000	$13,000
Nissan Leaf*	2014	40,000	$15,000

*Nissan Leaf added for comparison purposes. Although, some used Nissan Leafs are now being imported by people as well.

If we take the lower limit from this table and assume all the 70,000 vehicles are $7000 vehicles, that’s at least $490 million spent on importing used motor vehicles per year. Then $1.2 billion to fuel them and the rest of the existing fleet, which is about 1.5 million vehicles.

It would make much more sense to catalyze the adoption of EVs such as the Nissan Leafs, saving the much-needed foreign currency. Reducing or removing import duties and taxes would be a good starting point. The used Nissan Leafs could then end up being cheaper than a used Toyota Mark X. On the total cost of ownership (TCO) front, it’s not even a contest, as the Leaf wins by a mile. Living with an EV in Zimbabwe is not as hard as people may think, as discussed here.

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Sanctions cannot stop the PROCUREMENT OF MORE THAN 200 ISUZU, D4D for campaigning Mps but can stop the government from buying ambulances for hospitals.

Sanctions cannot stop Zimbabwe from importing Mercedes Benz Maybach S600 from Germany but can stop the same government from importing water treatment chemical from abroad.

Sanctions cannot stop the president from chartering the state of the art plane for VP to be treated in China/India but can stop the government from refurbishing ZISCO STEEL/CSC.

Sanctions cannot stop Mthuli from using USD but can stop the government from paying workers USDs.

Sanctions cannot stop Namibia from using 2 units at Hwange but can stop the government from refurbishing the same at Hwange.

Sanctions never came to kill people in August 2018 and in January 2019

Sanctions never carried out a coup

Sanctions never rigged elections

Sanctions never stole US$15 bn
Is it the sanctions that are stopping ED from bringing to book the culprits that are behind the looting in the country despite them being named and known

Sanctions never steal state funds to fund fake projects like Command Agriculture
Is it the sanctions that are stopping ED from implementing recommendations by the Montlante commission

Sanctions never allowed Tagwirei to do as he pleases with his Sakunda shit
Be careful before you match on the 25 October because you are simply contributing towards another man’s pockets.

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The Attorney-General’s Office Amendment Bill

Introduction

This is an odd Bill, in that it will amend an Act of Parliament which was passed by Parliament nearly nine years ago but has never been brought into force.  Some of the Bill’s provisions are even odder, as we shall show in this Bill Watch.

Background to the Bill

The Attorney-General’s Office Act

The Act to be amended by the Bill is the Attorney-General’s Office Act [link], which was gazetted as an Act on the 10th July 2011 but has never been brought into force.  Section 1(2) of the Act requires the Act’s date of commencement to be fixed by the President by statutory instrument in the Government Gazette, but the President has never published such an instrument.

The Act dates from the time of the former Constitution, when the Attorney-General was not only chief Government legal adviser but also held exclusive and independent responsibility for prosecuting criminal proceedings in all courts.  He [and all our Attorneys-General have been men] discharged these responsibilities with the assistance of one or more Deputy Attorneys-General and a large staff of civil servants serving in several divisions covering prosecutions, drafting legislation, representing Government in civil legal matters, giving legal advice and exercising certain statutory functions.  The Attorney-General and his deputies, however, were not themselves members of the Public Service [now the Civil Service].  They were appointed and exercised their functions under section 76 of the old Constitution.

The Act was intended to transfer the whole of the then Attorney-General’s Office, including prosecutors, to a new entity outside the Public Service called “the Attorney-General’s Office” which would have its own Board and administration to provide administrative services previously provided by the Ministry of Justice, Legal and Parliamentary Affairs.

Deferral of commencement of the Act

Bringing the Act into effect was deferred, probably because it was envisaged that the new Constitution would separate the offices of Attorney-General and Prosecutor-General;  possibly also because, as rumoured, the then Attorney-General Mr Tomana objected to not being chairman of his own Office’s Board.  Whatever the reason, the deferral has lasted for nearly nine years and the Act is no longer consistent with the new [i.e. the present] Constitution.

The Present Constitutional Provisions on the Attorney-General

In terms of section 114 of the Constitution the Attorney-General is appointed by the President as the Government’s principal legal adviser with additional responsibility for representing the Government in non-criminal legal proceedings and drafting the Government’s legislation.  Under section 115, he or she can be removed at any time by the President ‒ this follows from the fact that everyone, including the Government, must have the power to change their legal advisers whenever they want to.  The Attorney-General can act through subordinate officers in terms of section 114(3) but, beyond saying that, the Constitution does not deal with the appointment of Deputy Attorneys-General nor with the establishment and structure of an Attorney-General’s Office.

Attorney-General and deputies are currently part of Civil Service

Surprising as it may seem to the current Attorney-General and his deputies, all of them are civil servants except for one deputy who was appointed under the old Constitution.  This is because under section 199(2) of the Constitution the Civil Service consists of persons employed by the State excluding members of the security services, judicial officers, members of constitutional Commissions, the staff of Parliament and other persons whose offices or posts are stated by the Constitution or an Act of Parliament not to form part of the Civil Service.  The Constitution does not exclude the Attorney-General and his deputies from the Civil Service, nor does any Act of Parliament ‒ at least until the Attorney-General’s Office Act is brought into operation.  Until then they are civil servants and their conditions of service should, strictly speaking, be fixed by the Civil Service Commission under section 203 of the Constitution, rather than by the President.

In fact the conditions of service of the Attorney-General and his deputies have been fixed by the President, purportedly in terms of section 340(1)(e) of the Constitution which states that a power to appoint someone includes power to fix their conditions of service.

Need for the Bill

What we have said in the preceding two paragraphs illustrates one reason for the Bill.  Another is that members of the Attorney-General’s staff probably feel the need for change.  They are still members of the Civil Service, and have been left behind by their former colleagues and contemporaries who are now members of the National Prosecuting Authority.  This has happened despite the fact that the original intention behind the Attorney-General’s Office Act was that all members of the office, not just members of the prosecutions division, should be separated from the Civil Service in the interests of impartiality and independence in the provision of all legal services to Government and the need to hire and retain staff of the right calibre.  More generally, it is necessary to update the Act to bring it into line with the Constitution.

Analysis of the Bill

The Bill will go some way at least towards bringing the Attorney-General’s Office Act into line with the Constitution

Updated preamble

Clause 2 replaces the preamble to the Act with an extract from the present Constitution, replacing the existing extract from the former Constitution.

Appointment of Deputy Attorneys-General

As we pointed out earlier, although the former Constitution provided for the appointment of Deputy Attorneys-General, the present Constitution does not.  Section 340(3) of the present Constitution, however, permits an Act of Parliament to provide for appointment of deputies to the holder of any constitutional office.  Clause 4 of the Bill will accordingly insert a new section 2A into the principal Act to allow the President to appoint Deputy Attorneys-General after consultation with the Judicial Service Commission.  They will not be civil servants, and the Government will not be allowed to reduce their salaries and allowances during their tenure of office.

Composition of the Attorney-General’s Office Board

Clause 6 amends section 4 of the principal Act to make the Attorney-General the chairperson of the Attorney-General’s Office Board, replacing the existing provision for the chairperson to be a former judge or senior lawyer from outside the Office.  Deputy Attorneys-General will not be members of the Board.

Ministries not to employ lawyers without Attorney-General’s approval

Clause 7 of the Bill inserts a new section 11A prohibiting Government Ministries and departments from “engaging the services of a person under an employment contract to render any legal services relating to the functions of the Attorney-General’s Office without the approval of the Attorney-General”.  Note that the clause only prevents Ministries from engaging lawyers as employees;  it will not prevent them from engaging lawyers as consultants to provide legal advice, nor will it prevent Ministries from engaging lawyers to represent them in court ‒ because such lawyers are never engaged as employees.

Binding nature of Attorney-General’s opinions on questions of law

Clause 8 of the Bill inserts an extraordinary new section 22A in the Act which will state that opinions of the Attorney-General on questions of law are binding on the Executive unless overturned by a court of law.  What this means is that the opinion of even the most junior member of the Attorney-General’s Office will bind the Government, including the President, even if the opinion is palpably wrong.

While this may have been the practice [to encourage Ministries to follow legal advice given to them by the Attorney-General] it is not always appropriate to convert a practice into law.  Making the Attorney-General’s opinions and advice legally binding on the whole Government may turn out to be counter-productive:

• It may encourage those suing Government to add a new ground for their complaints:  that the Minister or other official being sued went against the Attorney-General’s legal opinion in contravention of an Act of Parliament [although such opinions are meant to be confidential, it is notorious that nothing remains confidential in Zimbabwe for long].
• It will lead to the anomaly that if a Permanent Secretary declines to follow an incorrect opinion given to him by the Attorney-General’s Office, he or she will be breaking the law [i.e. the new section 22A] while at the same time complying with the law as it really is.
• It may give rise to pointless disputes within the Government over whether an opinion was on a question of law, or a question of fact, or question of mixed law and fact.

We recommend that when the Second Reading debate resumes MPs should press the Minister to rethink this clause.

Law officers in Ministries to become members of Attorney-General’s Office on secondment

Clause 9 of the Bill is very obscure.  It provides that every “law officer” [i.e. a civil servant employed in a Ministry to do legal work] is “deemed to be seconded” to that Ministry “until reassigned by the Attorney-General”.  The Attorney-General cannot reassign civil servants ‒ that is the function of the Civil Service Commission.  Perhaps the clause was supposed to mean that the law officers are to be taken out of the Civil Service and transformed, without any option, into members of the Attorney-General’s Office.  If that was the intention, the clause does not say so;  in any event, it may well be unconstitutional to transfer people out of the Civil Service and into another service without their consent.

Commencement of the Bill

The Bill does not have a delayed date of commencement so it will come into effect as law immediately it is published in the Gazette as an Act, and the amendments it makes will thereupon be incorporated into the Attorney-General’s Office Act.  That Act, however, is not yet in operation so the amendments will not take effect until the President has published a notice in the Gazette bringing the Act into operation.

As we pointed out at the beginning of this bulletin, it is odd to amend an Act which has not yet come into operation, but it is legally permissible to do so.

General comments on the Bill

The Bill has not been carefully checked.  Typos and incorrect punctuation and omissions of capital letters abound.  It is disappointing that the Attorney-General’s Office allowed a document with so many minor flaws to be sent to Parliament and gazetted.  This lack of attention to detail prompts one to wonder whether the principal Act has been carefully read through from beginning to end to check whether the passage of nine years has necessitated any updating not covered by the Bill.  We have found a couple of instances:

• Section 4(2), which states that the minimum number of women on the Attorney-General’s Office Board must be “at least three or four” needs to be clarified.
• references to the “Comptroller and Auditor-General” in section 21 need to be updated – the title is now Auditor General.
• the date “31st December 2010” in section 27(6) needs correcting.

More importantly for the Attorney-General himself, a provision should be inserted stating that his salary and allowances cannot be reduced while he holds office [the Bill contains such a provision for the Deputy Attorneys-General but nothing is said about the Attorney-General].

Status of the Bill

The Bill was gazetted on the 21st February and was referred to the Parliamentary Legal Committee [PLC] immediately after its First Reading in the National Assembly on the 18th March, the day Parliament adjourned to comply with measures against the COVID-19 pandemic.  It has had a non-adverse report from the Parliamentary Legal Committee, but because of COVID-19 there have been no public hearings.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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