- seek to reduce Parliament’s oversight of foreign agreements,
- give the President power to appoint and dismiss Vice-Presidents.
In this Part we shall analyse clauses 13 and 14 of the Bill, which will amend the constitutional provisions for the appointment of judges and their tenure in office.
This is Not the First Amendment
It should be noted that there has already been a constitutional amendment affecting the appointment of judges. Section 180 of the Constitution as originally enacted in 2013 provided that whenever there was a vacancy in any judicial post, from the Chief Justice downwards, the Judicial Service Commission [JSC] had to advertise the vacancy, conduct public interviews of all candidates and submit the names of the three most suitable ones to the President. If the President declined to appoint any of the three, the JSC had to repeat the process and the President was then obliged to appoint one of the candidates in the next list submitted to him.
In 2017, by Act 10 of 2017, this was altered so that the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court were to be appointed by the President after consultation with the JSC. There was no longer a need for public interviews and the President had merely to consult the JSC, not heed its advice. The most senior posts in the judicial hierarchy therefore fell within the personal gift of the President because in making the appointments he did not have to act on the advice of his Cabinet: see section 110(2)(d) and (6) of the Constitution.
Now there is to be another amendment which will further strengthen the President’s personal powers over the judges.
The Current Provisions Affected by the Proposed Amendments
The current constitutional provisions which would be affected by the amendments, are as follows:
- The Chief Justice, his deputy and the Judge President of the High Court are appointed by the President after consultation with the Judicial Service Commission [JSC]. This is provided in section 180(2) of the Constitution as amended in 2017. And let us repeat that the President merely consults the JSC; he does not have to go along with the JSC’s recommendations.
- All other judges are appointed by the President, chosen from a list of names prepared by the JSC after conducting public interviews of candidates [section 180(4) of the Constitution].
- Judges of the Constitutional Court serve for a single term of up to 15 years. They must retire from the Constitutional Court after serving for 15 years or when they reach the age of 70, whichever is the earlier.
- All other judges ‒ i.e. judges of the Supreme Court, the High Court, the Administrative Court and the Labour Court ‒ continue in office until they reach the age of 70, when they must retire.
The Bill Proposes to Alter these Provisions as Follows:
- The President, on the recommendation of the JSC, will be able to appoint a sitting judge to a higher court without the judge being subjected to a public interview. This means that the President may promote a judge of the Labour Court, for example, to the High Court or the Supreme Court or even to the Constitutional Court without the judge having to be interviewed and without the JSC having to interview other possible candidates for the post.
- Judges and acting judges of the Constitutional Court and the Supreme Court will no longer retire automatically on reaching 70. If they wish, they will be allowed to continue in office for periods of one year at a time so long as the President, after consultation with the JSC, is satisfied that they are fit to continue. Again, note that all the President will have to do is consult the JSC; he does not have to take their advice.
- All other judges will, as at present, have to retire on reaching the age of 70.
An independent judiciary lies at the heart of a democratic constitutional State, enshrined in the doctrine of separation of powers. Judges have to determine disputes not just between ordinary citizens but between citizens and the State itself. Unless the judges are truly independent, and are seen to be such, the government will be able to override the rights of its citizens and the result will be despotism and ultimately tyranny. It is vital therefore to retain the careful safeguards that were originally contained in the Constitution for the appointment and tenure of judges, which ensure so far as possible that only qualified, fit and proper people are appointed to the Bench and that judges who seek promotion submit their records to public scrutiny.
There is also the issue of transparency. Judges must not only be qualified, fit and proper but must manifestly be seen to be such. The procedures by which they are appointed and promoted must be completely transparent so that anyone who cares can check the judges’ qualifications, fitness and propriety. Without such transparency suspicions are likely to arise that political motivations lie behind the appointment and promotion of judges.
If the proposed amendments are passed by Parliament the independence of the judiciary, already weakened by the constitutional amendments made in 2017, will be further compromised. The President will be able to promote pliant judges to higher courts. And if pliant judges of the two highest courts reach the normal age of retirement he will be able to keep them in office while refusing an extension to other more independent judges.
Limited Application of Amendments
One important point must not be forgotten. Under section 328(7) of the Constitution, if a “term-limit provision”, i.e. a constitutional provision that limits the length of time a person may hold office, is amended so as to extend that time, the amendment will not apply to anyone who held the office before the amendment.
The existing constitutional provisions [section 186(1) & (2)] which state that judges of the Constitutional Court and the Supreme Court must retire on reaching the age of 70 are term-limit provisions, so the amendments which would allow them to remain in office after the age of 70, i.e. would extend their terms of office, will not apply to any of the present judges of those courts.
For this relief much thanks.