Please reform the judiciary but do not subject judges to mob justice

Acknowledging the obvious in a democracy in his 1835 book, Democracy in America, French political thinker and historian Alexis de Tocqueville observed: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”

Indeed, the US Supreme Court, not Congress, has led in eliminating racial segregation and defending the constitutional rights of all manner of groups. In 2000, the American presidential election was ultimately decided in the Supreme Court!

The global trend in today’s rights conscious world is towards governance through the law, and not through plain politics. The International Criminal Court was set up to augment political institutions like the United Nations.

The principle of judicial self-restraint holds that justices seek only to interpret the law; that what matters is if a law is constitutional, not if it is just or wise; and that the Judiciary should refrain from making decisions on matters that belong in the political arena.

But in areas of constitutional rights, in contrast, the Judiciary’s policy-making role eclipses that of elected officials and executives, even in our new Constitution (Articles 19 and 20).

Hence, as we assault the old order, we should not undermine the Judiciary by indulging in cheap self-righteousness when judging those who carry the heavy responsibility of interpreting our laws. Demeaning the integrity of judges and magistrates by subjecting them to a kangaroo court will be unfair, unjust, and counterproductive.

By suspending the Independence of the Judiciary (Article 160), tenure of office (Article 167), and removal from office (Article 168) while vetting them, Section 23 of the Sixth Schedule of the new Constitution prescribes the unacceptable impunity of “mob justice” in the process of removal of judges and magistrates deemed unsuitable to hold office.

This deliberate negation of the Rule of Law and rules of natural justice violates their constitutional right to protection of the law and freedom from discrimination. It also offends both the United Nations Basic Principles on the Independence of the Judiciary and the International Convention on Civil and Political Rights.

Judges and magistrates should be vetted without violating their constitutional rights, including the right to a fair trial. Even if we seek a political solution to the undeniably monumental problems in the Judiciary, nobody or institution has the licence to operate outside the law.

Stating otherwise, as Section 23 does, perpetuates mischief under the guise of serving the public. Further, to guard against a conflict of interest, lawyers who serve on the vetting panel should be barred from becoming judges for at least 10 years.

Shoddy vetting may lynch some of our best judges and magistrates and replace them with individuals handpicked through a boardroom process not immune to deal making, and not subject to vetting by Parliament.

And, going by the calibre of judges of the Interim Independent Constitutional Dispute Resolution Court, the new gatekeepers might not stick out their necks to protect the public interest.

To achieve desired constitutional reforms, we must look beyond vetting. We must shore up the Judiciary and other public institutions by expanding and modernising their manpower and infrastructure to equip them for effective service delivery under the new dispensation.

Judges, magistrates and other public servants must be retrained and updated continuously. There must also be civic education, social mobilisation and advocacy on citizen rights and duties.

So, let’s all step back, cool emotions, tone down the self-righteous rhetoric against the Judiciary and start working for a republican dispensation.

omtata@safariweb.com