Advocate for the four suspended judges; Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang Attorney, has said the judges case is likely to compromise security of tenure.
Advocate Sean Rosenberg said security tenure is an important aspect of judicial independence. It protects judges against termination of, or suspension from, employment at the discretion and behest of the executive.
He said security of tenure serves to reduce the potential for a judge to be threatened with removal for failing to yield to political pressure or undue interference.
“The importance of security of tenure has been recognized in a wide range of international instruments concerned with the protection of judicial independence,” said Advocate Rosenberg.
Rosenberg acknowledged that there may, of course, be circumstances in which judges become unfit for judicial office and must be removed. But International instruments provide that judges should be subject to suspension or removal only on very limited grounds.
“These restrictions are plainly designed to ensure that the suspension and removal process is not misused in a manner that undermines judicial independence. The constitution demonstrates the same commitment to judicial security of tenure, and provides only limited grounds for suspending and removing High Court Judges,” he said.
Advocate Rosenberg said a judge under investigation for inability or misbehavior is not automatically suspended from judicial office.
He explained that though section 97(5) affords the President discretion to suspend a judge under investigation – and to revoke any suspension – should he deem it appropriate, the constitution thus recognizes that not all conduct that warrants investigation for removal will justify an immediate suspension from office.
He added that the conferral of that discretion afforded to President to suspend judges under investigations has a number of implications.
“First, it means that the President must consider and determine whether to suspend a judge separately from his decision to refer the judge for investigation. Different facts and considerations must inform each of those decisions. The President is not entitled to suspend a judge only because the judge has been referred for investigation,” he said.
Secondly, Rosenberg said, the President’s decision to suspend must be exercised subject to the constitution and the law, and in accordance with the requirements of natural justice; they are amenable to review and setting aside if they are not.
“The President’s power to suspend a judge creates a risk of executive interference in the composition and functioning of the judiciary, and is open to abuse. An improper decision to suspend will violate judicial independence and the separation of powers. A court considering a judicial suspension must carefully scrutinize the constitutionality of the President’s invocation of the power,” said Rosenberg.
When he concluded Rosenberg emphasized that the decision to suspend the four judges was unlawful, unconstitutional and invalid.