Quamdiu se bene gesserint, good behavior clause and the removal of judges
1. Introduction
Government operates under three branches or arms namely: legislature, judicature and executive. Of these three, two are are elective branches, namely: executive and legislature. The judiciary comprises appointed officials namely judges. The three arms interplay in a process known as separation of powers. They provide checks and balances on each other. The “weakest” of them all is the judiciary. The legislature has the purse and controls money through budget. The executive has the arms (army and police). The judiciary only has its word.
2. Appointment and removal of judges
In England, the Act of Settlement 1701 was passed to strengthen the security of tenure of judges. Judges must be appointed on merit. They must be subjected to a rigorous process. It must be difficult for one to be appointed as judge. If this happens, it must also be difficult to remove a judge. Judges must serve “Quamdiu se bene gesserint,”; what this means is that they must serve as long as they are of good behavior . This is what in the United States they call the good behavior clause. Judges must not be fired like security guards. Judges must not be removed like farm workers. The judiciary must not be treated like a farm.
3. Suspension of Constitutional Court judges
We may not know the real reason behind the suspension of three Constitutional Court judges by President Hakainde Hichilema yesterday. The news came as a surprise and was received with a sense of shock across the country. Conspiracy theories have sprung. Fear is chilling on the spines of judicial offices. Judicial independence is at risk. Why have these judges been suspended? Historically, no judge has survived a “suspension” at least starting from 2021. These judges are headed from removal. What worries the most is the secrecy under which these proceedings occur. This secrecy breeds conspiracy theories and the judiciary effectively is at the mercy of the executive. We must revisit the law on the removal of judges quick and quickly so. Let’s clothe a life tenure on judges. They must serve as long as they of good behavior. The behavior of judges must be scrutinized publicly the same way they sit and judge others in the courts publicly. The general public must have insight as to why their lordships and ladyships behavior is being questioned. Judges must not be judges privately. We need to revisit the disciplinary procedure so that we remove conspiracy theories that the President is purging the courts so that he packs it with his cronies and comrades.
4. Conclusion: Towards the South African, English and American ways
The appointment of judges in the countries above is public and meritorious and the outcome is that the process solidifies the confidence of the public in their courts. We can only be judged by competent people. We can only be judged by men and women of good behavior and conduct. That’s why we call them lords. We must have a stake in their appointment. We must also have a stake in their removal. We cannot have a situation that purges judges everytime there is change of government. We must have a system that judges, especially of the Supreme Court and Constitutional Court, must remain in their office as long as there are of good behavior. The Constitutional Court deals with sensitive matters such as presidential election petitions. We cannot see it be mutilated months before an election. Let’s promote security of tenure for judges as well as judicial independence. The constant removal of judges erodes judicial independence. It casts a cloud of fear among judicial officers. Judges cannot work with fear because fear erodes their independence.
Those are my two cents.
Joseph Chirwa is a political activist, constitutional law and a doctoral student at the University of South Africa.