Home » Media Centre » Blogs » Checks and Balances in Nominations and Appointments
By Moreen Majiwa (@mmajiwa)
It has been a little over two weeks since the announcement of the nominees for Attorney General, Director of Public Prosecutions, Chief Justice and Budget Controller. Since then a lot of ‘he said this, he said that, I didn’t say, I didn’t say’ has ensued been between the camps of the two principles. However despite the noise crucial progress has been made, progress that will hopefully chart the path forward for future nominations and appointments.
The first is the progressive ruling by High Court Justice Daniel Musinga made last week. The High Court judge ruled that it would be unconstitutional for the State to carry on with the process of approving and eventually appointing the nominees for Chief Justice, Attorney General, Director of Public Prosecutions and Budget Controller based on nominations of the individuals made by the President on 28
January 2011.
The Judge found that the nominations were unconstitutional because all four nominees were male and no reasonable explanation had been given as to why there were no women among the four nominees.
He therefore found the nominations in violation of Article 27 (4) & (5) of the constitution which prohibits discrimination of grounds of sex, Article 27 (3) which guarantees equal treatment to both men and women, and Article 129 which requires executive powers be exercised in accordance with the constitution.
The ruling will hopefully ensure that consideration of gender equality is an integral part of future nominations and appointments to all levels of public office.
A further point of progress is the ongoing interrogation of the use of executive powers and the manner in which the powers are exercised in nomination and appointment processes.
Where as previously executive decisions, particularly those made by the President, were expected to be accepted without question. Since the controversial nominations a precedent is emerging were relevant parliamentary committees inquire into the process of decision making by the executive.
The on-going interrogation of the nomination process by the parliamentary committees allows the public to scrutinize the interests and motives that drove nomination process, and examine the accountability of the executive and constitutionality of its decisions.
Hopefully this will result in a situation where knowing that the exercise of the executive powers will and can be interrogated, and are subject to the checks of parliament will cause the executive to abide by the rule of law in the exercise of its powers.
And a reminder more than the ever, that a key part of entrenching the new constitution is constitution building.
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