Wednesday, May 12, 2021

Parliament, not the Head of State should prescribe number of judges at Court of Appeal; Union

Government Manual Workers Union (GMWU) has issued a notice of intention to sue among others President Ian Khama, the Judicial Service Commission and the Speaker of the National Assembly. The Union questions the legality of appointment of Judges to the Court of Appeal. They also say the current practice where the Head of State renews contracts for Court of Appeal judges without explicit authority of Parliament is unlawful.

At the centre of it all is the failure by Parliament to exercise the powers vested on it by the Constitution to prescribe the number of Court of appeal Judges, the powers which has continuously been delegated to the State President through the use of a clause in the Court of Appeal Act. GMWU argues that by shifting all the powers vested on parliament by the Constitution to the Head of State to determine and prescribe the number of Court of appeal judges ultra vires and impermissible and should thus be struck down. It would seem like in delegating its powers, Parliament relies more on the Court of Appeal Act rather than on the Constitution.

The Government Manual Workers Union says the fact that they regularly litigate before the Courts renders them a party directly affected by this “impermissible” and “ultra vires” defect. The Union says that a failure by Parliament to exercise its powers has led to instances that could potentially undermine the independence of the judiciary. Additionally, the Union argues that the current arrangement undermines Separation of Powers and exerts undue influence of the Executive on the Judiciary.

“Not only does Section 4 of the Court of Appeal Act constitute an impermissible delegation of constitutional powers, it undermines judicial independence from the Executive which the framers sought to secure by bestowing the power to prescribe the number of Court of Appeal Judges on Parliament. The prescription of the number of Court of Appeal judges by Parliament safeguards against interference by the Executive through court-packing.”

To push their case, the Union advances that the argument that the delegation to the President of the power to prescribe the number of judges is unconstitutional has previously been advanced with great force by Justice Dibotelo (now chief Justice) in respect of Section 3 of the High Court Act, which is similarly worded. “Unfortunately, the arguments raised by Justice Dibotelo were never determined as a monetary settlement was reached in the matter. Our client is however of the respectful view that the argument advanced by Justice Dibotelo holds good today as it did then,” says the lawyer acting for GMWU, Mboki Chilisa of Collins Chilisa Legal Consultants.

“Our client interprets Section 101(1) (ii) of the Constitution as empowering the President to appoint a judge to a fixed term period of three years and not a series of fixed term periods of three years as has been the case in respect of expatriate judges. The renewal of fixed term contracts at the unfettered discretion of the president undermines judicial independence and separation of powers.

Although the reality may be different, the renewal of some contracts and not others may raise a reasonable apprehension or perception that the Court of appeal may be undermined by the external interference of the president.” In the end the GMWU holds that the current practice of renewing three year contracts of Court of Appeal judges by the Head of State violates the Constitution.

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