This amendment is an attack on the public interest. The public should continue to be able to participate in the selection of the Chief Justice, Deputy Chief Justice and the Judge President. This amendment is not doing that at all. If the Attorney-General is not going to come and defend the public interest, this House must defend the public interest. This House must step in, defend it and promote the independence of the Judiciary and the public interest. This concentration of power in the Head of the Executive is not in the national interest.
Allow me Mr. Speaker to just quote from one of the classical scholars of constitutional law and the rule of law who was a French philosopher called Montesquieu. He said this, “when the legislative and executive powers are united in the same person, there can be no liberty. Again, there can be no liberty if the judicial powers are not separated from the Legislature and the Executive. Were it joined with the Legislature, the life and liberty of the subject would be exposed to arbitrary controls for the judge would then be the legislator. Were it joined to the Executive” which will be the case if the President is the sole authority for choosing the Chief Justice, Deputy Chief Justice and the Judge President, “were it joined to the Executive, the Judge might behave with violence and oppression. There will be an ending to everything where the same man or the same body, whether of the nobles or of the people was to exercise those three powers, that of enacting laws, the public resolution of disputes and that of executing”. Concentrating the power to appoint the chief justice, the deputy chief justice and the judge president in the President is to give the Office of His Excellency, the President the power to do this. This is contrary to everything that the rule of law stands for and good governance and separation of powers.
While we are there Mr. Chairman, in opposing this, I am really imploring on our esteemed Vice President who is also the Minister of Justice to please abandon this amendment that is not in the public interest. In pleading with him again, I will implore him to look at how, at the present moment, at the time that this amendment was being proposed, there had not yet risen a vacancy in the office of the Chief Justice and then it arose. As we are debating this amendment, the very first vacancy for the office of the Chief Justice that arose when we enacted this Constitution was filled with no difficulty at all, in terms of this Constitution. That shows that it works. We have a Chief Justice now called Chief Justice Malaba who was elected and came into office in the manner that is spelt out in the Constitution. I have not seen any problem at all. Where is the problem? There were no hiccups and there was nothing wrong with the process. The process concluded and we have a Chief Justice in this country, in terms of the Constitution. There is no mischief and there is no problem. Like lawyers say, the Hon. Vice President will agree, if it is not broken, why fix it? There is nothing wrong with the Constitution as it is today. That office is filled.
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