Southern African Institute for Policy and Research

Attorney General vs. Mutuna and Others (Appeal No. o88/2012) [2013] ZMSC 38 (9 May 2013)

Commentary by Muna Ndulo

Full Case Can be Found HERE

THE FACTS

On 30th May, 2012, the three respondents received letters from the President of the Republic suspending them from performing their duties. The first and second Respondents applied ex parte for leave for Judicial Review of His Excellency’s decision to appoint a tribunal and suspend them. This application was granted on 16th May, 2012. Following the successful granting of the application, the 3rd Respondent took out summons and applied to the Supreme Court to join as the 3rd Applicant (now the 3rd Respondent). This was granted on 31st May 2012. The Appellant then on 17th May, 2012 took out summons to discharge the leave granted ex-parte to the Respondents. The High Court rejected the appellants’ application and the appellant appealed to the Supreme Court.

 

THE LEGAL ISSUES

Whether the president’s exercise of Article 98 powers was a contravention of Article 91 of the Constitution which establishes the Judicial Complaints Authority as the body mandated to deal with allegations of judicial misconduct.

 

THE HOLDING

The court held that it was the legislature’s intention to make it possible for the president to “deal with” judges without recourse to the Judicial Complaints authority. It further held that article 98 was a “limited check” on the Judiciary by the president in the event that the President received credible information impugning the credibility of a judge. In so doing, the Supreme Court of Zambia adopted the doctrine of executive supremacy.

 

THE SIGNIFICANCE

A jurisprudence of constitutionalism is fundamentally different from a jurisprudence of executive supremacy. The former is premised on the supremacy of the constitution. The Zambian constitution states in article 1 that: “The Constitution is the Supreme Law of Zambia and if any other law is inconsistent with this constitution, that other law shall, to the extent of the inconsistency, be void.”   Additionally, constitutionalism is premised upon the separation of powers of the three arms of the government-namely the executive, the legislature and the Judiciary. The constitution is premised on the judiciary’s exercise of its power of judicial review, which means that the judiciary must see to it that the other arms of the government act within the provisions of the constitution. It is the duty of the executive to give effect to all judgments given by the judiciary regardless of the executive’s view of the correctness of the judgments. Where the executive is dissatisfied with the judgment of a lower court, its constitutional option is a right of appeal.

In order for the judiciary to perform its duties fearlessly and impartially, the constitution grants the judiciary independence from the other two arms of government. Article 91 (2) states that: “the judges of the courts mentioned in clause (1) shall be independent, impartial and subject only to this constitution and the law.” Article 98 prescribes the manner in which a judge can be removed from office.   It provides that a judge of the Supreme Court may be removed from office only for an inability to perform the functions of his/her office, whether arising from infirmity of body or mind or for misbehavior, and shall not be so removed except in accordance with the provisions of this article. Article 98 provides that if the President considers that the question of removing a judge of the Supreme Court or the High Court under this Article ought to be investigated, (a) he shall appoint a tribunal which shall consist of a Chairman and not less than two other members who have held high judicial office; (b) the Tribunal shall inquire into the matter and report on the facts thereof to the President and advise the President on whether the judge ought to be removed from office under this article for inability as foresaid or for misbehavior.

Article 91 and 98 without a doubt are linked. Article 91 provides the overall context within which provisions relating to the judiciary should be interpreted. It underscores judicial independence. Article 98 cannot be interpreted in such a manner as to become the conduit of executive influence over the judiciary. The removal of judges from the bench on spurious grounds is the greatest threat there can be to judicial independence. How would it ever be ensured that a judge is independent if he or she can easily be removed? Where judges are subject to easy removal, it would require fearless men and women of the utmost will and moral fiber to do justice where the interest of the reigning political party is involved. To safe guard the independence of the judiciary granted in article 91, article 98 ensures that a judge can be removed on only two grounds: (1) inability to discharge the functions of his office or (2) misconduct.

International standards applicable to the preservation of the independence of the judiciary place considerable emphasis against the improper removal of judges from office. They insist that a judge who faces removal must be examined by an independent and impartial tribunal, and that the grounds of removal must be limited to the two cases mentioned above. The idea behind the procedures set up under the Judicial Complaints Act was to ensure that the President cannot, without the approval of the Chief Justice initiate the process to remove a judge from office. In this way, the judiciary overseas the removal process. The rational of this approach is for the Chief Justice to advise the President only in circumstances where it is reasonable and justifiable for an investigation to be conducted. Without this check, there would be no way to ensure that the President does not appoint a tribunal that he or she can manipulate to achieve a predetermined outcome. The idea that article 98 provides the president with unfettered power to check the judiciary as the majority opines is to say the least, preposterous and completely offends the doctrine of the separation of powers. Neither the constitution nor the Act could have contemplated that the position of judges would be as vulnerable as the majority would have us believe. If the constitution had wanted to vest this power in the complete discretion of the President, the constitution could easily have used words to that effect. The constitution does not say misconduct “in the opinion of the president.” It says, “if the president considers the question of removing the judge.” That means there have to be objective criteria on which the question is based without which the President acts arbitrarily.

It is correct to say that the determination of whether a judge is unfit for office or is guilty of misconduct stipulated in article 98 involves a value judgment. But it does not follow from this that the decision and evaluation lies within the sole and subjective preserve of the president. Value judgments are involved in virtually every decision any member of the executive might make where objective requirements are stipulated. It is also true that there may be differences of opinion in relation to whether or not objective criteria have been established or are present. This does not mean that the decision becomes one of subjective determination, immune from objective scrutiny.

The argument that the powers under article 98 are investigative and not executive is disingenuous and totally unnecessary.   In equity, it is said that equity looks at substance rather than form. What remedy can there be for a judge if the Tribunal recommends dismissal? Our courts must regard themselves as courts of justice, not merely courts of law—narrowly defined, especially where human freedom and dignity are concerned.

A judge should not, and cannot afford to regard himself as a machine but must instead feel called upon to duties that are higher than the mere mechanical application of the law. In any event, in this particular case, it was unnecessary to decide whether the decision by the president constituted executive or administrative action because even in terms of the former, rationality is a requirement for the validity of executive action under the principle of legality. The Human Rights Committee has said that the principle of legality and the rule of law are inherent in the International Covenant for Civil and Political Rights (ICCPR). The Inter-American Court of Human Rights has also stressed that there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law.

The majority opinion held that the appropriate way to interpret article 98 was through a “literal rule of interpretation.” According to the majority, the literal rule requires the court to give the ordinary grammatical meaning to provisions in constitutional texts. This approach is contrary to the view of courts elsewhere in the commonwealth and it is intellectually deficient and can lead to bizarre outcomes. In any event, article 91 and article 98 are not plain in meaning.   How for example do you reconcile the independence of the judiciary with an easy removal of judges from the bench? How do you reconcile the doctrine of the separation of powers and removal of judges by the executive? Further, article 98 states that a judge can be removed for “inability to discharge the functions of his office or for misconduct”. To an ordinary layman these may appear to be clear terms. But far from being clear, they are in fact nebulous. All these matters require reconciliation by the Supreme Court in way that does not undermine the core purposes of the constitution. In a constitution there are some provisions, (the number of members of Parliament for example) that due to the clear and unambiguous meaning of the text, render such clear-cut provisions amenable to literal interpretation and do not therefore require the application of a sophisticated theory of constitutional interpretation to reach a sensible conclusion.

On the other hand, there are provisions of the constitution where the text itself is so abstract or ambiguous that analysis of the text and sometimes the history, the structure, purpose, and intent of the relevant provision is necessary.   The purposeful approach to interpretation invites more active judicial intermediation and interpretation. In particular, it demands that judges interpreting a constitutional text not only consult the spirit of the law but also endeavor to harmonize the letter with the spirit. To do this, the judges must bring to their reasoning and decisions a clear understanding of the overarching values and philosophical foundations of a liberal democracy, and of the historical antecedents and contemporary purposes of the particular provision in dispute. The existence of an independent and impartial judiciary is at the heart of articles 91 and 98. The two articles attempt to ensure that the justice system is truly independent from other branches of the state. The principle of an independent judiciary derives from the basic principles of the rule of law, and the doctrine of the separation of powers. According to this doctrine, the executive, the legislature and the judiciary constitute three separate and independent branches of government. Different organs of the state have exclusive and specific responsibilities. By virtue of this separation, it is not permissible for any branch of power to interfere into the others’ sphere. An interpretation of article 98 that holds that the determination is a matter for the president’s subjective opinion and cannot be questioned by any court of law is not in keeping with the constitution. An interpretation that there should be objective jurisdictional facts that must exist before the appointment of a Tribunal is more consistent and in keeping with the constitutional guarantee of the independence of the judiciary.

There is accordingly, a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith must be subject to constitutional control by the courts. As Udoma JSC rightly pointed out in the famous Nigerian case Nafiu Rabiu v The State (1980), “It is the duty of the courts to interpret the constitution liberally. The courts should not interpret any provision of the constitution so as to defeat the ends the constitution is designed to serve where another construction equally in accord and consistent with the words and spirit of such persons will serve to enforce and protect such ends.” Articles 91 and 98 must be read together to determine the purpose for which the power was conferred. It is evident that the purpose of the conferral of the power was to ensure that judges are men and women of integrity while ensuring fidelity to the doctrine of separation of powers and the independence of judges.

Maano alazwa amukasumbwa

Translation: "Wisdom may be found through observation of even the simplest things"

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