Fundamentally, the Constitution has other adequate mechanisms that guarantee judicial independence to advance and secure the integrity of the bench from all forms of interference. These range from their fitness and properness, their qualifications, integrity, probity, moral, character and impartiality; there are dismissal procedures and remuneration and those are the safeguards that safeguard the independence of the Judiciary. We must also remember that whilst we hold premium the principle of the independence of the judiciary, it should be noted that as an arm of Government, the Judiciary is an independent but interrelated and interdependence sphere of the Government machinery that can only survive when it interlocks with other organs through the lenses of an equally celebrated principle of checks and balances. Surely, the Judiciary cannot exist in an island or in a vacuum because if that notion of its existence as a vacuum was true, surely the President would not be even allowed to play even a single role in the appointment process as is the case across jurisdictions worldwide.
Mr. Speaker, then comes the issue of the people as the source of the Judicial authority. The notion that Judicial authority derives from the people is not an immaterial proposition but a fundamental one that is rooted in the subterranean layers of our electoral mandate. Democracy itself is embedded in the popular views of the masses at any given time. When we say certain provisions of the Constitution have outlived their usefulness and should be reviewed, it means that the popular will of the greatest number share that view. It is that view that must be debated and if it steals the thunder, it is the one that must be adopted.
However, those popular views must be debated, tested and interrogated, following the constitutional and legislative procedures in place and that is what we are doing in this august House. In any event, it is a good and longstanding practice even in well established democracies to include the elected representatives of the people in the judicial appointment process. In Kenya, they involve both their President and the National Assembly – not the interviews as previously debated. In South Africa, it is the President and the National Assembly; and in America, it is the President and the Senate. It is only in Zimbabwe that the President is involved after the public interviews which we are now removing.
Mr. Speaker, it is against this backdrop that we propose this constitutional amendment especially if regard had to be heard to the invidious position that it leaves our judicial officers in. Does it not naturally make sense that an outgoing Chief Justice cannot chair interviews for his or her potential successor? The reason is simple as it is predicated upon a possible conflict of interest, which mitigates on the principles of good governance and transparency of the whole appointment process leading to the contamination of the bench and subsequent compromise the administration of justice. However, the President in compliance of the current Constitution before this amendment went ahead and appointed a new Chief Justice in terms of the current Constitution which is the law until it is amended. That is the rule of law.
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