It also quarrels very badly with Section 164 (2) (b) which requires that instead of Parliament going around busy demoting judges and a Judge President of the Administrative Court, we must instead go the opposite way. We are required by Section 164 (2) (b) to instead assist, protect and enhance the independence of the courts. Once a person is liable to demotion, it really means that they are subject to the whims of whoever is advancing them or demoting them.
While I am there, I want to seek your indulgence in getting clarification from our esteemed Vice President who is the Hon. Minister of Justice. I am not sure whether I heard him correctly that if he seems to indicate that the present position is that the leaders of the Labour Court, which also applies to the Administrative Court are called the Senior Judge and then that is the case. The question is, if that is the case, why are we bothering with Clause 4 and Clause 3 because then there is no need to amend it as it is already there. However, in the event that he wants to amend it, I object respectfully but vehemently for the same reasons. I thank you.
HON. ADV. CHAMISA: When you said Hon. Vice President, I thought you meant of the opposition. – [Laughter.] – So. I am really sorry about that. But thank you very much, that is why I stood up.
Hon. Chair, I rise to support the view raised by Hon. Gonese and Hon. Majome that Section 173 already sends signals and messages of the importance that is given to these specialized courts such as the Administrative Court. Once you begin to almost reduce them in rank, you are in effect weakening their importance. This is particularly so important in the context of Section 68 of the Constitution, wherein access to administrative justice from a procedural point and also a substantive justice point of view, it is so important. That court has been a very important court of late because of the entrenchment of the need to have administrative justice being followed. So, any effort to then try and send a message of putting lesser significance and emphasis on these courts is going to produce undesired and unintended consequences. The unintended consequences are that you are going to end up with sub quality justice because you have already reduced the threshold of importance that you apportioned and allocated to that very important court. I am very passionate about that view because when we consulted the people, they were very clear that they wanted an elevation in status and the kind of impression that is given to the Administrative Court. So, it would be important to retain the title that is so obtaining Hon. Chair. Thank you very much.
HON. ZIYAMBI: Mr. Chairman, what I want to say is that if you go through the Constitution in terms of judges and the hierarchy of the courts, you will see that the sections are not speaking to each other. Where it talks about the High Court, it is a court which has inherent jurisdiction and the Supreme Court and the Constitutional Court. Then it goes to the other courts which are specialised courts, which even if they want to make their own rules, they have to be provided for by an Act of Parliament. Then if you look at these courts and you compare with the High Court, definitely from the Constitution, the way it is couched, they are not equal. So, the mischief that is being cured is where the Constitution created an artificial equality which is not there because these sections were supposed to speak to each other where the Administrative Court is being given limited jurisdiction. Its head cannot be equated to a head of a court which has unlimited jurisdiction. If you also look at the way it is, anyone can even take his case to the High Court without even going to the Labour Court. It is allowed because the High Court has inherent jurisdiction.
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