A system of independent Judges superimposed on a (more or less) dependent Judiciary
Owen Nsala | Wednesday April 5, 2017 17:08
The tendered apology has sparked so much public debate. In my view our constitutional system, although advocating for an independent judiciary has loopholes to which the other arms of government can exercise immense control over the judiciary.
In the literal sense of the word, independence means the absence of dependence which translates to autonomy and insusceptibility to external guidance, influence or control.
If one therefore looks at the independence of our judiciary from a prism of the literal meaning of the word, it can only follow that our judges are not independent.
They are not autonomous because another arm of government retains the ultimate control of their budget, size, administration and jurisdiction.
The levels and lines of progression remain within parliament and the president to the extent that those two institutions retain the power to appoint the judges.
For a judge of the High Court to ascend to the Court of Appeal he needs the presidencies seal and signature. Similarly for one to be appointed Chief Justice or Judge President he needs the approval and assent of the president
However, that being said, judicial independence is not defined by the literal meaning of the word but rather by part VI of the Constitution which affords them security of tenure during their GOOD BEHAVIOUR.
Judges are thereby rendered autonomous in the limited sense that they have an enforceable monopoly over the judgments they make and are insulated from the influence and control by their security of tenure and to an extent fixed and determinable remunerations. The Constitution affords the security of tenure by affixing an age limit such that a judge remains in office until he reaches that retirement age.
The above stated guarantees from the Constitution are however limited.
This is so because by giving the power to politicians to appoint and remove judges from office, the Constitution has clearly encroached on the independence of the judiciary.
The Judges may, during their good behavior enjoy their independence but the president alone decides when good behavior degenerates into impeachable crime and misdemeanor.
In terms of our section 97, the president therefore wields so much power to the extent that he has the ability, constitutionally and therefore legally, to frustrate any desired independence in the judiciary.
The president is empowered under the Constitution to set up a tribunal which amongst others shall investigate whether a judge has committed the necessary misbehavior to warrant a recall from duty.
Our Constitution fails to state what form and mode of misbehavior would call for the setup of the tribunal and therefore vests all the powers on the president to decide what really amounts to good behavior.
We have therefore, should the withdrawal of the cases by the judges go through as mooted, missed an opportunity to have a constitutional dialogue in court as to what really amounts to good behavior.
On reading our Constitution it becomes evidently clear that our judiciary is overly dependent on the other institutions of government and closer to home for purposes of this write-up, the president.
The suspension of the four judges was done with guidance from the Constitution and effectively the president had the trump card over the Justices, either you apologise or remain in the lurch at my messy.
It was he who had the power to recall the tribunal or have it on the rampage whereas the judges remained suspended at his mercy, for, he still has the powers to uplift the suspensions.
Consequently there could only be one winner. Our judiciary remains dependent, constitutionally so, on the executive.