It separates the three arms of government and provides, albeit, in some cases to a limited degree, for a separation of powers. If there is any arm of government the Constitution gives the widest independence, it would be the judiciary. The legislature and executive have often found themselves entangled in turf wars. However the judiciary to a large extent has been saved the endless tussles.
This has been largely a positive thing. The judges have been able to deliver without any publicly known influence from other arms of government. The appointment of judges remain the contentious issue with some arguing for a much more open process, given the public access to the processes involved in appointing some of the most powerful people in the country. The process of appointing judges is shrouded in secrecy for reasons that are not difficult to guess. This remains a blight on our judicial system. But the problems with our judiciary do not end there.
Chief Justice Maruping Dibotelo's sudden outburst over the alleged misconduct of litigants and judges has given the nation reasons to debate the state of the judiciary. It is said that justice must not just be done but must be seen to be done. When Ian Kirby was elevated to the highest level of our judiciary, we expressed our concern that perhaps it may not have been the best way to give the judiciary some respect from the public. This is because of Kirby's connections to the President. This was a clear example of the President abusing the judiciary. Our judiciary has often clothe itself in a cover of secrecy on some of the most fundamental issues raised regarding it.
What happened to robust debate of judgements as in other countries? When the court declared, we believe erroneously, that the President is immune from any prosecution, where was the debate from legal experts? We blame the judges and lawyers and everyone else with an interest in judicial matters for this absence of debate and engagement. We hear judges have downed tools as a result of their displeasure with Dibotelo's outburst. The reality is that lawyers and judges, in a kind of collective plot against the public, have long cordoned off our judiciary.
Dibotelo's method is ultimately flawed in that he does not use the right forum to express his views. Neither does he seek an audience with his colleagues. He merely invites interest from the public on a matter that he could have easily dealt with if indeed there is a matter to be dealt with. But it presents an opportunity for the nation to debate the state of our judiciary and that may just be what we need at this point.
"Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times."
- Warren E. Burger
(Chief Justice, US Supreme Court)