Judiciary Nominations

By Mzalendo Contributor - Moreen Majiwa (@mmajiwa)

The announcement of nominations of the Chief Justice, the Attorney General, and the Director of Public Prosecutions (DPP) took people by surprise.

Since the nominations there have been mixed messages about the constitutionality of the nominations one faction of leaders say that the nominations were in order and the other that the nominations are unconstitutional.

The constitution is quite clear with regard to nomination of the Attorney General (AG). Article 132 (2) (b) and Article 156 (2) state the AG shall be nominated by the President and with the approval of the National Assembly, appointed by the President. So the nomination so far would appear constitutional, were it not for the transitional and consequential clauses in Schedule 6.

With regard to the nomination of the Director of Public Prosecutions the constitution states the DPP shall be nominated and with the approval of the National Assembly, appointed by the President, Article 157 (2). The clause is vague as to who does the nominations so that validity of nomination is up for debate. From the construction of the clause one can assume the President is the one to nominate. However if this was intention why isn’t clearly stated as with the same manner with the process for nomination of AG?

The most contentious nomination of the three is that of the Chief Justice (CJ). Article 166 (1) (a) clearly states that the President shall appoint the CJ in accordance with the recommendation of the Judicial Service Commission and subject to approval of the National Assembly. The Judicial Service Commission did not make the recommendation as required by the constitution and they have clearly stated so. Therefore the nomination of the CJ is unconstitutional.

In addition for appointment of the Chief Justice consultation between the two Principals is specifically provided for. Section 24  (2) Schedule 6 states ‘a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.’  Meaningful consultation can only take place at the stage of nomination. The president cannot nominate without consulting, wait for the vetting to take place and then consult just before the appointment.

Similarly the nominations for AG and DPP require that there be consultation between the President and the Prime Minister. Section 29 (2) of the Sixth Schedule states that when the President is making an appointment that requires approval of the National Assembly ‘the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister’ (until the after the first elections under the constitution).  The reasonable sequence would appear to be that the President and the Prime Minister consult on suitable persons agree and forward the name National Assembly for approval, and only after approval can the President appoint the person.

Another pressing issue  is that out of the four nominations, including the Budget Controller, none is a woman. This flies in the face of gender equality and equity and is tantamount to discrimination against women that contravenes Article 27 (4) of the constitution that prohibits discrimination on the grounds of sex.

As the drama around the nominations play out in the press, it does appear that the nominations, at minimum, are in breach national values and principles of governance outlined in Article 10 of the constitution i.e. the rule of law, participation of people, equality and non-discrimination, good governance, transparency and accountability.

Posted by Mzalendo Editor on Feb. 1, 2011

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