The judiciary; too, on the dock over independent candidacy law! | JamiiForums | The Home of Great Thinkers

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The judiciary; too, on the dock over independent candidacy law!

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Sep 28, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Sep 28, 2010
    Joined: Sep 24, 2010
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    Just like the executive, the Judiciary is on the dock over the Independent candidacy law. While the highest court on the land is grappling to interpret whether constitutional Article barring the participation of independent candidates is in line with the Bill of Rights; also enshrined in our constitution, the highest court on land is enmeshed in controversies of its own making. The Appeals Court has in many occasions faltered to demonstrate judicial leadership of defending the constitution as it falls over itself to assuage the executive. It is no wonder retired justices have found eternal sources of employment with the executive beckoning that a quid pro quo affection system is well entrenched in our governance structures. On the same breath, judges perceived to have been on the wrong side of the government like Judge James Mwalusanya were passed for promotion and were left dry after retirement! As a nettling incident, one has to mull whether the immediate former Chief Justice merited the appointment of chancellery of a public owned University – Mzumbe - and there are other peeving examples to boot. In specific cases where the Appeals Court had wobbled to protect the sanctity of our constitutional principles include a nullification of the decision carried out by Judge James Mwalusanya who had revoked capital punishment law for offending the Bill of Rights which protect human life. The Appeals Court erroneously made a narrower interpretation of penal code and left the nation in a legal imbroglio where criminal law engraved by parliament can upset the constitution itself! The incumbent Chief Justice views such constitutional anomalies are matters of a national debate...

    This is judicial dereliction of duty since the Appeals Court had squandered an opportunity to expunge capital punishment law which was and still is offending our constitution. In similar mien, the Appeals Court decision in A.G vs. V. W. K. Butambala T.L. R no 37/1991 secured succour from the Sierra Leone case where it was decided constitutional hearing can be effected through having a legitimate complainant and the High court cannot act suo motu. But in the same lodestone, the Appeals Court established an ennobling finding by a way of postscript that the fees payable to criminal legal aid were grossly inadequate and outdated but reneged to correct the unfair rates on frivolous grounds of having no complainant in the first place and the Court could not legislate from the Bench! Under such inordinate judicial indolence, the executive was under no duress to enact new reasonable rates. Had the Appeals Court; at least, given the executive a timeline to mollify such harsh fees, the executive would have been under compulsion to rectify them. This is the approach the High Court took when instructing the executive to enact independent candidacy law before 2010 elections. Courts of law cannot witness injustice in a courtroom and condone it under ruses of having her hands tied from doing the right thing.

    In High Court decision over independent candidates, the executive never accessed her stay of execution remedies and have reneged to implement the Court order requiring her to enact the new law. This is contempt of court gone unpunished. There is even a larger issue at hand: Is the House properly mandated to write or amend the constitution? Where is the role of a plebiscite in all this? The more the executive writes the constitution the more prolix the executive chapters in the constitution emboldened to be. Since the executive is the one legislating at the Constitution under the pretext of parliamentary prerogatives then it is a small wonder why the executive has taken leaps and bounds to appendage her parochial wishlists in the highest law of the land. Some issues like independent candidacy which could have been better dealt by statues are now masquerading as constitutional edicts! Will the judiciary exert her independence from executive manipulations and declare untenable the abjuration of independent candidacy despite being surreptitiously embedded as a constitutional rider? It is a riddle placing the judiciary under the dock just like the executive’s proclivity for self-serving.