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Wednesday, October 21, 2020

Regarding the Draft Constitution

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By Foday Samateh

Having now summoned the courage to take Lady Macbeth’s seditious incitement to heart, I will repeat after Dick the Butcher in Henry VI, Part II: “The first thing we do, let’s kill all the lawyers.”

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Not literally. I’m no Jack Cade calling for a revolution against anyone who reads or writes or calculates numbers. Still, I find myself sharing the sentiments of his followers like Dick the Butcher about the elites according themselves special status that sets them above the general rules applicable to the rest of society.

There is no way to read the preferential treatment the Judicial branch enjoys in the draft Constitution compared to the Executive and the Legislative branches and not see the clever and conscious hand of the lawyers on the drafting commission to shield from checks and balances the institution they are most affiliated with professionally.

Before delving into substantiating this assertion, I must perform the duty a critic owes to fairness and objectivity. I must acknowledge the good news concerning the Judiciary in the draft Constitution. Some of the reforms are in their own rights laudable.
The most important is the National Assembly now gets a say in the appointment of some Judges — namely, the Supreme Court and the Court of Appeal Judges — by way of confirmation. It should be all Judges, not just some.

Another important reform is that a Judge, who hasn’t attained the compulsory retirement age of 75 years, can only be removed for cause. According to Section 192 (2), a judge can only be removed for: “(a) inability to perform the functions of his or her office arising from infirmity of body or mind; (b) misconduct; (c) misbehavior; (d) serious breach of a code of conduct applicable to judges; and (d) bankruptcy or entering into an arrangement with creditors.”

And lastly, the President cannot (directly) remove a Judge from the bench.
Notwithstanding the unsatisfactory underlying conditions, these reforms are remarkable steps toward ensuring judicial independence — the only true assurance of justice, the rule of law, and equality before the law for the highest public official and the lowliest private citizen.

If only the rest of reforms to the Judiciary could similarly excite votaries of strong,  accountable institutions. Separation of powers demand that the relationship between the President and the Judiciary as it exists in the 1997 Constitution (the current Constitution) ends in a divorce settlement for the good of good governance. What ought to remain between the two branches should be checks and balances. But the draft Constitution fails to meet that standard. It has gone further than ending the President’s dominance over the Judiciary to tilting the relationship in the Judiciary’s favor.

It’s true the draft Constitution lets the President appoint the Judicial Secretary, which shouldn’t happen. If the President can no longer appoint the Clerk of the National Assembly, which also should never have been the case in the first place, the same rationale should prevail for the Legislative branch’s equivalent in the Judicial branch. The Judicial Secretary should be appointed by the Judicial Service Commission (JSC) just like the Clerk of the National Assembly is to be appointed by the National Assembly Service Commission.

And just like no appointee of the President serves in the National Assembly Commission, no appointee of the President other than Judges should serve in the Judicial Service Commission. Separation of powers should mean separation of powers in practice as in theory. All appearances of the President’s involvement in the Judicial branch raise questions that should be avoided.

That said, the biggest problems in the Judiciary concerning separation of powers are the Judiciary Service Commission’s roles in the hiring and firing of Judges. The JSC is an eight-member body comprising the Chief Justice, three other sitting Judges, the Solicitor General and Legal Secretary, two legal practitioners and another person with extensive experience in public affairs.

The draft Constitution is right to assign the JSC under the leadership of the Chief Justice with the staffing and administration of the Judiciary. Neither the President nor the National Assembly should appoint the staff of the Judicial branch. But Judges are a different species.

For example, the Executive branch doesn’t pick or take part as an institution in picking the President. That responsibility is reserved for the people at the ballot box. The Legislative branch does not pick or take part as an institution in picking the members of the National Assembly. That responsibility falls to the people at the ballot box. If the people cannot directly pick Judges — the holders of authority in the third branch of the government — the people’s representatives in the elected branches are the only right  alternatives to act on the people’s behalf.

It ought to be reiterated that the draft Constitution has done a marvelous job in removing the interfering hand of the President from the other two branches of the government. The National Assembly’s unshackling was already discussed in Part II of this commentary on the Constitution.

The Judiciary’s unentangling from the President’s tentacles isn’t so clear-cut given the appointment of the Judiciary Secretary and the membership of the Solicitor General and Legal Secretary (an official of the Executive branch) on the JSC. The purpose for this, it seems, is to make believe there is some kind of check and balance between the President and the Judiciary. But that impression cannot stand up to even a perfunctory scrutiny. Take out of the equation the officials the President appoints to the Judicial branch and the jig is up. In the name of judicial independence, the Judiciary is all but declared the sacred cow of the three institutions thanks to a few deceptively harmless provisions in three sections of the draft Constitution.

The first preferential treatment of the Judiciary relates to appointment of Judges. Section 188 (1) states: “The President shall appoint (a) the Chief Justice, other judges of the Supreme Court and judges of the Court of Appeal, acting on the advice of the Judicial Service Commission, after confirmation by the National Assembly; and (b) all other judges, acting on the advice of the Judicial Service Commission.” (All emphases are mine.)
It’s gladdening that the President’s eventual nominees for the Supreme Court and the Court of Appeals will be subject to confirmation by the National Assembly. But the President’s appointing authority is conditional, if not apparently titular, since the President doesn’t truly decide who gets the chance to be considered for Judgeship. The most important decision of selecting potential Judges, as paragraph (a) and (b) above indicate, rests with the Judicial Service Commission.

Basically, the four Judges (including the Chief Justice) and other lawyers of the eight-member Judicial Service Commission decide who becomes a Judge since the President is constitutionally required to act on the advice of the Commission. As pointed out in Part I of this commentary on the Constitution, the innocuous word “advice” is a semantic euphemism. The operative phrase is “act on.” Translation: the JSC gives the President a list of potential Judges for the President to pick from and the National Assembly to confirm or reject the nominees. No one will become a Judge unless the JSC selects them. In other words, the President cannot consider any one for Judgeship without the JSC’s blessing. In the case of the High Court Judges, the National Assembly doesn’t even confirm the nominees. The JSC provides a list of names and the President appoints from that list. Why on earth should the President be bound by the decision of a service commission on a matter that is unquestionably the President’s prerogative?

The draft Constitution already spells out the qualifications for Judges. Does the President really need the JSC to figure out who meets those qualifications? The current Constitution’s involving of the JSC in the appointment of Judges presumably as some sort of check on the President is a misguided idea irrespective of the motivating intention. But now that the draft Constitution has given the National Assembly the mandate to confirm most key presidential appointments, there can be no justifiable reason whatsoever for the JSC to have any constitutional role in the appointment of Judges. All Judges, including High Court Judges, should be nominated by the President on the President’s own unconditional discretion subject to National Assembly’s unconditional  approval or disapproval.

The President should be entirely free to consult or not consult with anybody or person in appointing anyone to any office, Judge or not. To require otherwise of the President isn’t reining in the imperial presidency. It is to deny the President the authority to function as the Chief Executive of the government and the Head of State.

The second preferential treatment of the Judiciary relates to filling a vacancy in the Courts. Section 191 (4) states: “Where the President receives a resignation [letter of a Judge], he or she shall immediately notify the Judicial Service Commission of the fact and the Commission may advise the appointment of a replacement.” The only comment necessary here is the President should only notify the JSC of a Judge’s resignation as an administrative matter for the Judicial branch. With respect to the advice of the JSC on the replacement, the contention of this commentary against such a proposition stands as sufficient.

The third preferential treatment of the Judiciary relates to the removal of Judges from office. The draft Constitution is perfectly right that the President, in the interest of judicial independence and the rule of law, should have no power to fire Judges. That leaves only one of the three branches to assume the responsibility. The National Assembly alone is fit and proper to provide the institutional check on Judges when they break the law or abuse their office as outlined in Section 191 (1) cited above.

But Section 192 (2) stipulates something contrary and indefensible. It contravenes the tenets of separation of powers, which is the overarching claim of the draft Constitution. Subsection (2) states: “The removal from office of a judge may be initiated only — (a) by the Judicial Service Commission, acting on its own volition; or (b) on the petition of a person addressed to the Judicial Service Commission.”

Imagine only the President’s Cabinet or the Public Service Commission can decide when the President should be removed from office; or the National Assembly Service Commission alone can decide when an Assembly member should be removed from the Legislature.

There will be public outrage complete with placards of declamation and denunciations.  For both the Executive and the Legislative branches, there are at least two different ways to remove the principals from office. The President can be voted out by the people, or removed from office at the behest of the National Assembly on medical or criminal grounds. The Vice President and Ministers can be removed by the President or by the National Assembly. The National Assembly members can be voted out or recalled by constituents, as well as expelled for violating certain rules for the Assembly.

These examples show the two branches are subject to independent accountability. But the draft Constitution shielded the Judicial branch from similar accountability and checks. Even the current Constitution, with all its canyons of flaws, gives the National Assembly role in removing Judges. Why would the draft Constitution, which is more progressive in so many other sections, take that power from the only branch that should be entrusted with the responsibility of holding Judges accountable? There is no justification for it at all. It is not like the National Assembly has a record of abusing that power in the past. Not once!
Here is another instance of the draft Constitution’s preferential treatment of the Judicial branch.

The Supreme Court has jurisdiction over the affairs and activities of the other two branches. It can rule if the President or a National Assembly member is validly elected; or if National Assembly members validly vacated their seats. The Court can also weigh in on whether laws passed by the National Assembly, or decisions and actions of the President are constitutional or unconstitutional. And when the National Assembly votes to remove the President from office, the Chief Justice plays a central role in the ensuing process (which ought to change as argued in Part II of this commentary). How then is it acceptable the National Assembly plays no role in the removal of Judges? How can a mere service commission be put in charge of the consequential decision of removing a Judge?
It gets worse.

The draft Constitution’s process of removing Judges is an elaborate exercise in endless rigmarole. It might as well say never mind trying to disrobe a Judge under any circumstances. It sets out a thirteen-step process, which, depending on how one reads it, renders the President an errand boy or girl of the JSC; or an influential presence throughout the byzantine process. The draft Constitution is deliberate in making sure no Judge, including the Chief Justice and the other three Judges on JSC, will face any removal inquiry without the JSC’s consent. So much for separation of powers.

Of the thirteen steps to remove a Judge, only the first one is justifiable to safeguard judicial independence. It enshrines the causes for removal that are fair and necessary. The rest of the steps are about giving the JSC the power of discretion as if removing a Judge is exclusively an optional internal affairs of the Judiciary branch.

The pertinent ones to this commentary are — Step 2: the JSC, acting on its own volition or on a petition of a person, initiates an inquiry into a Judge. Step 4: The JSC, “after considering the petition, is satisfied that the petition discloses grounds for removal,” sends the petition to the President. Step 5: The President, within seven days of receiving the petition, suspends the Judge. Step 6: Within fourteen days of suspending the Judge, the President, “acting on the advice of the Judicial Service Commission,” appoints a five-member tribunal of three senior judicial officers, one legal practitioner, and one non-legal practitioner. Step 9: The tribunal regulates its own proceedings, affords the Judge fair hearing, and prepares a report on its findings and makes recommendation to the President on whether or not the Judge should be removed. Step 10: The tribunal’s proceedings shall be in camera. Why? Don’t Judges preside in public over other people’s cases? Whatever happens to the aphorism that justice must not only be done but must be seen to be done? Step 11: If the tribunal recommends removal, the President notifies the Judge and the Judge reserves the right to appeal against the recommendation to the Supreme Court, a privilege the President isn’t entitled to in the President’s own removal process. Step 12: If the Judge fails to appeal against the recommendation within ten days, the President removes the Judges. And Step 13: If the tribunal recommends to the President that the Judge shouldn’t be removed, the Judge is reinstated.

There you have it. Let the candid world decide if this method of removing a Judge is optimal for a democracy that lays claim to separation of powers and checks and balances.
Imagine the Judge in question is the Chief Justice. Will the JSC, in an institution that exudes professional fraternity, conceivably act on its own accord or on a petition of a no-name person to initiate a meaningful removal inquiry? Imagine still if the person petitioning is the President or a known proxy of the President. Nothing in this section precludes anyone, including the President, from petitioning for the removal of a Judge. Will the JSC then buckle under presidential pressure or defy it at the risk of incurring the President’s wrath?
If this draft Constitution wishes to endure the test of time, the Judicial Service Commission should be entirely written out of the hiring and firing of Judges. The authority to appoint Judges should be between the President and the National Assembly alone. And the authority to remove Judges should be the jurisdiction of only the National Assembly — the people’s elected representatives.

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