By Advocate Lewis Uriri – On Malaba Judgement Effect
I must set the record straight as regards the Chief Justice saga. I have not been involved in the matter nor have I been consulted in any capacity whatsoever. Suggestions to the contrary are not only false but also outright malicious.
I have not expressed any views on the judgement or it’s effect. Whilst I have my personal views, like anybody else, I have never expressed the same in the media or anywhere / to anyone else.
I express no views on the correctness or otherwise of the High Court judgement as it appears that the same is/maybe the subject of continuing litigation. I am a student of the Constitution in terms of which the High Court sat.
I am glad that everyone concerned state unequivocally that they are bound by and abide the decision of the High Court.
The respondents have a right to disagree with the judgement of the High Court. The route is to appeal. In doing so, the integrity of the court must not be scandalized. We must all respect the court, whether or not we agree with its judgement.
Whilst I desist from expressing any views on the correctness of the judgement for the reasons given above, I can and I will comment on its effect.
The High Court sat to decide on constitutional questions in terms of the relevant provisions of the Constitution. It sat to decide on constitutional questions within its jurisdiction. It did so at a time when the President had extended the tenure of Chief Justice Malaba.
It is not the characterization of its order as declaratory that determines its effect. It is its effect on the conduct of the President.
It’s effect is to effectively set aside the President’s conduct regardless of the fact that the President was not a party to the litigation. It is this effect of setting aside the conduct of the President that I address. This is not the subject of existing litigation and I can express my views on this effect.
Section 175 (1) of the Constitution is instructive. It provides that, “Where a court makes an order concerning the constitutional invalidity of … any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.”
Section 175 (2) of the Constitution provides that a court which makes an order of constitutional invalidity referred to in section 175 (1) may grant a temporary interdict or other temporary relief, pending a decision of the Constitutional Court on the validity of the conduct.
The High Court was not asked to make an interim protective order. It did not make any such order.
It’s judgement, to the extent that it effectively holds that the conduct of the President in extending the Chief Justice’s term is constitutionally invalid, has no effect until confirmed by the Constitutional Court. This is what the constitution says.
Whether or not the judgement is purely declaratory is regardless. It has the effect that the conduct of the President in extending the Chief Justice’s term is constitutionally invalid. It is this effect which has no force unless it is confirmed by the CC.
An appeal by the respondents, whilst the route to take if they disagree with the judgement, is strictly not necessary. There have to be confirmation proceedings before the Constitutional Court.
I express no views on who would sit in the confirmation proceedings as this is a live issue given that the whole constitutional court were cited as respondents.
The judgement of the High Court must be respected to the extent that it makes the pronouncement that it did.
The jurisdiction of the High Court ended with the handing down of the judgement. The learned judges discharged their duties and oath of office.
Their judgement, as I have pointed out, has no effect until confirmed by the Constitutional Court. This is apart from the fact that a declaratory order, if such was the judgement, is not executable. It merely declares the position.
That declared position would bind all arms of government where it not for the fact the declared position has no effect unless confirmed by the Constitutional Court.
Whilst there is a pronouncement that the Chief Justice ceased being a judge when he turned 70, that pronouncement has no constitutional effect to the extent that it’s effect is that the conduct of the President is invalid, until confirmed by the CC.
That having been said, and to avoid the possible invalidation of any work that the CJ may do pending the confirmation proceedings should the constitutional court confirm the decision of the High Court, it is best that the Deputy Chief Justice acts as Chief Justice in the interim.
We must now await the outcome of the confirmation proceedings.
This, my countrymen, is the ground upon which I stand. There will be different views. The court will tell what the correct view is. I do not purport exclusive validity of this view. It is a view that I conscientiously hold and believe in.