In its two (2) Reports presented to the Republican President, Judicial Complaints Commission (JCC) Chairperson Vincent Malambo said there was need to send a strong message that corrupt judges belong to the jungle and not society. The article below attempts to provide answers on the legal mechanisms that can resolve judicial incompetence.
LEGAL MECHANISMS THAT CAN RESOLVE JUDICIAL INCOMPETENCE.
By Griven Stasion Kangwa, Esq. LLB, LLM-Commercial Law, AHCZ, ASCZ.
Independent, impartial, honest, and competent judges in the administration of justice serve a major role in the confidence the public have in the judiciary. It has been said that “Justice must not only be done but must also be seen to be done.” This means that the perception that the public should have of the judiciary, which body they look to for enforcement of their rights, should be that of the custodians of justice.
Despite several decades of reform efforts and international instruments protecting judicial independence, judges around the world continue to face pressure to rule in favour of powerful political or economic entities, rather than according to the law. It has been noted that a pliable judiciary provides ‘legal’ protection to those in power for dubious or illegal strategies such as embezzlement, or political decisions that might otherwise encounter resistance in the legislature or from the media.
John Sangwa, S.C argues that the procedure for the appointment of judges is a sham as it is not transparent nor fair thereby eroding the independence and integrity of the judiciary. Prof. Cephas Lumina and Melvin Mbao, on the other hand, argue that the process for the selection and appointment of the judges should be consistent with internationally accepted norms and there is need for transparency in the process.
It must be noted that the current legal framework empowers the president in consultation with the Judicial Service Commission (JSC) to appoint Judges, this is provided for under Article137(2) of the Constitution Act No. 2 of 2016. Further, Section 5 of the Service Commission Act No. 10 of 2016, provides that the President shall appoint the Chairperson of the JSC.
Though the foregoing provisions, seem to suggest that the appointment of judges is a closed-door process. Section 41 of the Services Commissions Act on the other hand, provides that the Commission in consultation with the Minister may make regulations for the better carrying out the provisions of the Act.
In view of the above, it is evident that an open and more transparent process of appointment of judges can be achieved under Section 41 of the Services Commissions Act. Further, several scholars have highlighted factors that have affected the performance of the judiciary thereby making the public lose confidence. Thus, when the public have a low opinion of judges and the judicial process, they are far more likely to conclude that the decisions only favor the ruling class. To this end, the legal mechanisms that can resolve judicial incompetence are set out below.
Open and Transparent Process of Appointment of Judges.
To ensure general transparency regarding the appointment of judges, judicial commissions should advertise judicial vacancies and conduct an open process. The commission may consider various forms of evidence when evaluating a candidate, including application forms, references, background checks and, in some cases, written tests. It is generally desirable that a commission should interview a shortlist of candidates prior to making its selection.
In a small number of jurisdictions, such interviews are held in public. Individual transparency of this kind exposes both the candidates and the commission to public scrutiny, which may be particularly beneficial in transitional societies. In Bryan v United Kingdom the Court set out principles to be taken into account in establishing the independence of the judiciary, including the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures, and whether the body presents the appearance of independence.
In the United States (US), Federal judges are nominated by the President and confirmed by the US Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President’s political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. The US process appears to be robust because the process of confirmation hearings are conducted on live Television and the US Senate conducts the vetting and the interview.
Implementation of Regulations.
Section 41 of the Services Commissions Act provides that the Commission in consultation with the Minister may make regulations for the better carrying out the provisions of the Act. That is to say, the appointment of judges can be done through an open and fair process as long as regulations are formulated. In this regard, this article is of the view that since the law provides for formulation of regulations that can ensure an open and fair process. The JSC may formulate regulations that shall ensure that interviews, vetting processes are conducted on public Television before submitting the names of successful candidates for recommendation to the President.
Merit-based Judicial Appointments.
The selection criteria should be clear and well publicised, allowing candidates, selectors and others to have a clear understanding of where the bar for selection lies; candidates should be required to demonstrate a record of competence and integrity. The foregoing can be achieved by formulating regulations under Section 41 of the Service Commissions Act.
CONCLUSION
In conclusion, an independent, impartial, honest, and competent judiciary is the cornerstone of the rule of law. The selection and appointment criteria of judges plays a critical role in ensuring that competent judges are appointed. In this regard, judges must be appointed through a transparent process in order for the public to have confidence in the judiciary.
10 comments
Munyonzwe Hamalengwa
Thank you so much