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A JUDICIOUS ACT FROM THE JUDICIAL SERVICE COMMISSION?

14/12/2017 01:17:00 By Vusi Kunene

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IT is said one should not be allowed to touch the fountain of justice with unclean hands. The problem though is when those who are supposed to guard the fountain then decide to allow unclean hands to access that fountain. The fountain will therefore not be able to give justice as it is dirty and nothing clean can come out of a dirty fountain.

An article I read over the weekend about the appointment of a magistrate left me with a very bitter taste concerning our Judiciary. There have been a lot of complaints from the public as well as the law fraternity concerning some conducts of certain judicial officers but nothing has been done to address even glaring misbehaviours by some judicial officers. Section 160(1)(d) of the Constitution states that it is the duty of the Judicial Service Commission (JSC) to receive and process recommendations and complaints concerning the Judiciary. I am yet to hear of any recommendations that have been made but I have heard a number of complaints about certain judicial officers. Some are even notorious because nothing will ever happen.

The question then is whether the JSC is worthy of the office they hold looking at the above provision. Section 160(2) gives the JSC power to appoint certain officers of the Judiciary and to exercise disciplinary control over the officers and to even remove those officers. Such officers are magistrates but what is the JSC doing about those who misbehave? Is there any justice that can be administered by a misbehaving person?

The article on the appointment of a person who never applied (if that is true) gave me answers as to why the JSC does nothing to misbehaving officers. How can you discipline a person who never applied for a position? If a person tells you, not only by applying but by even telling it to you, that I am not interested in the position because I am not qualified, then how will you discipline such a person if he or she misbehaves in the position? Will the person not tell you that I misbehaved because I told you that I was not ready for the position but you forced it on me? Will there ever be administered justice? Were there no people who applied for the post and if there were why were they not considered and awarded the post?
Looking at the statistics of cases handled and dealt with in our judicial system, most of them are handled at magistrate level. I am referring to even criminal cases that have custodial sentences. Imagine a person being wrongly convicted by a magistrate who never applied for that post but was forced on him or her.
Some will argue that the person can appeal. True, but think of the expenses involved in prosecuting an appeal. Think of the time that the person will spend behind bars before an appeal is heard. The inconveniences that come with all of these which may even include loss of employment are so devastating.
Mentioning the issue of appealing led me to think about the very court where the appeal will be lodged after the magistrate had blundered. Who sits in that court and how do they get to that position? This takes me to Section 153 of the Constitution which provides that justices of superior courts shall be appointed by the King on advice of the JSC. Following what the JSC did, can we trust that it is the advising the King properly on the appointments of justices? Are we not having people who never applied in our benches? Are we not having people who did mention that they were not capable and ready to dispense justice at that level? I do not want to think any of those questions could be answered to the affirmative because that would be devastating to say the least.
The very same JSC that is exhibiting such acts is also responsible for the removal of the justices of the superior courts. Section 158 of the Constitution provides that if there is advise given to the King that a certain justice ought to be removed from office, then the King shall refer the matter to the JSC for investigation. It is the JSC that will then recommend to the King whether the justice ought to be removed. I therefore fear that if the JSC has the audacity to award positions to people who are not willing, what can stop them from making sure that a certain justice is removed.
Have it in mind that the chief justice, who is a member of the JSC, is the one who must advise the King even before the enquiry by the JSC. That means the person who advises the King on the complaint about the justice is the same person who comes to do the investigation. Can he or she then be expected to go back and tell the King that I was wrong? Let me not respond to that but it worries me when the JSC is dirtying the fountain of justice when it is supposed to guard against that.