Legalising an illegality: The circus that is CoA Amendment Bill
Owen Nsala | Wednesday March 8, 2017 16:32
Its true call, sense and nature may never survive. Our Executive-minded Parliament will frustrate the judgement and ensure the status quo remains.
That fear is looming. It is real and shall happen unless the nation, on an impending referendum (assuming Parliament will be wise enough to read the Constitution) takes charge and steers the ship in a direction desirable. The Judges who were dismissed from work on account of fear of a Judiciary that was not independent may be back at work soon. What becomes of our fear regards their impartiality?
In that piece I cautioned that, “A strong Cabinet is highly likely to side with the Executive or the President on account that the President is the appointing authority to Cabinet. A strong Cabinet therefore renders Parliament weak and the Executive powerful. On that account then, what effect would the judgement have?
I maintain that all that will change will be the wording of the statutory document, but in practical terms, the President wields power as he is in a position to dictate terms to Parliament through Cabinet. Any mischief that was meant to be cured by Justice Tafa would simply remain an issue of academic exercise and the intended practicality remaining at the mercy of the Executive.’’
The Bill is here. Justice Tafa cautioned that the Judiciary must be seen to be independent and that being a Constitutional dictate under section 10(9) of the Constitution must be seen to be exercised to the letter. It was said, and rightfully so, that a reappointment of Judges after the fixed three-year contract has lapsed is a slap on the face of the notion of independence of the Judiciary. One needs not provide concrete evidence that a reappointment assaults the principle of the independence of the Judiciary. The mere act and deed of a reappointment of a Judge without a notable security of tenure assaults, significantly on that principle and it was that which Judge Tafa tried to explain.
The amendment to the Court of Appeal (CoA) Act seeks, amongst others, to legitimise a wrong that was rightfully discovered by Justice Tafa. Needless to say, it is an age-old principle that with or without Justice Tafa’s judgement, we must carry and live with. We must jealously guard the independence of the Judiciary.
The Bill seeks to legitimise the appointment of Judges who were reappointed on a fixed three-year contract. The Bill is simply saying, as a nation we care less about the independence of the Judiciary. It says to us, the Executive holds the prerogatives of appointment and cares less on the trust that, you, the citizen, shall have on the Bench.
The Bill misses the whole point on the independence of the Judiciary and the crucial role that the Judiciary is meant to play. The public must not lose confidence on the Judiciary on account of thoughts of bias towards the Government. Should the Bill pass, essentially those Justices of Appeal shall return to work, notwithstanding the fear we have that their appointment may have been made with a desire to allow the Executive a grip and control over the Judiciary. The fear is real but, matters less to the Bill.
It is an issue of principle and has nothing to do with a particular Judge of Appeal. I am by no means suggesting that the Judges re-appointed after their fixed term contracts expired are not men of good honour and standing. The bottom-line is that, their reappointment which the Bill seeks to legitimise was founded on a wrong footing.
The reappointment created doubt on the mind of a person litigating against Government that the Judge may have been appointed with a sweetener on tongue. The secrecy that surrounds the appointment of the Justices similarly does not help in allaying those fears.
For Parliament to say that it was wrong to reappoint and try, through cosmetic means to mend that wrong does not make the appointment to absorb public confidence. In fact it erodes the confidence as we are left wondering what is so special about this crop of Judges that they seem indispensable.
I conclude my piece by stating that the planned reappointment of the Justices still is unconstitutional. The concern regarding the reappointment was aligned to their impartiality and independence under section 10(9) of the Constitution.
It was found to have been wrong by the Court and so it shall remain. The Amendment comes at a time when the perception is now real that they may not be as impartial as we want them to be. Backdating the Act, to accommodate the wrong does not make the wrong right. Parliament must not legalise an illegality.
The less said about increasing the retirement age the better. At least on this one, I have hope that sanity will prevail and I shall be called by a referendum to determine whether there is need to increase the age. It happened before on the November of 2001 when the age was moved from 65 to 70 and the Constitution calls for a referendum under section 89 as the Bill seeks to amend the Judicature part of the Constitution. To that end, I remain hopeful of my participation and shall vote with NO. NO TO 80.