The appointments have been the subject of comment at various fora. One view is that the president made the appointments in accordance with the law. He had no obligation to consult the prime minister. The contrary view is that he was constitutionally bound to consult the prime minister.
I wish to contribute to this debate in my personal capacity to advance constitutional discourse.
I approach this debate on the factual basis that the prime minister was not consulted on the appointments. Indeed, if there had been consultation, there would be no debate.
Section 84 (1) of the constitution provides for the appointment of judges as follows:
“The Chief Justice, Deputy Chief Justice, Judge President and other judges of the Supreme Court and the High Court shall be appointed by the president after consultation with the Judicial Service Commission”.
The above provision subsisted before schedule 8 introduced by Amendment No 19.
Clause 20.1.3(p) of the amendment provides that the president, “in consultation with the prime pinister, makes key appointments the president is required to make under and in terms of the constitution or any Act of parliament”.
With respect, the appointment of a judge is a key appointment made by the president in terms of the constitution. Such appointment can only be made in consultation with the prime minister.
Schedule 8 which introduces the framework for a new government prefixes the framework for a new constitutional order as follows:
“For the avoidance of doubt, the following provisions for the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Inter Political Agreement, prevail notwithstanding anything to the contrary in the constitution”.
Clause 20:1.3 (p) cited above clearly prevails over Section 8 (1) of the Constitution to the extent that it obliges the president to consult the prime minister before making an appointment.
In my submission, the appointments made without consultation lack constitutional validity.
It has been suggested that the views expressed herein arise out of confusion or a misunderstanding of the procedure relating to the appointment of judges as compared to the appointment of senior government officials in terms of Clause 20.1.7
Clause 20.1.7 provides as follows:
“The parties agree that with respect to occupants of senior government positions, such as permanent secretaries and ambassadors, the leadership in government, comprising the president, the vice presidents, the prime minister and deputy prime ministers, will consult and agree on such prior to their appointment.”
Clause 20.1.3 (p) is clearly worded as in clause 20.1.7. The two provide clear and distinct procedures for the different appointments. There is no confusion here. The two provisions are clear and distinct. It is that simple.
Advocate Eric Matinenga