NAREP president Elias Chipimo says the Judicial Complaints Commission is undermining the Constitutional Court by passing judgment on the ruling made in the presidential election petition.
Recently, JCC noted that the ConCourt was inconsistent in the manner it handled the interpretation of the 14 days but ruled that one act of inconsistency could not be viewed as incompetence.
“It shall be noted that from the rulings quoted above, the court kept on changing its own decisions. This change or reversal of decisions amounted to inconsistencies on the part of the court. It was these inconsistencies which prompted the complainant to say the Constitutional Court and the Judiciary were brought into disrepute, ridicule or contempt and that this amounted to incompetence and gross misconduct. We however wish to state that one incidence of inconsistency cannot amount to incompetence let alone an act of gross misconduct by them,” stated JCC.
But in an interview today, Chipimo said the JCC had overstepped its mandate.
“They can only make a comment about the ruling in so far as they are investigating whether there was competence in how that determination was made but they can’t pass a decision on something that is only within the mandate of the Constitutional Court to decide. They cannot turn around and say the ConCourt was wrong in its decision. All they can say is how did they arrive at that decision whether right or wrong. If they arrived at it in a wrong way through misconduct or incompetence, then they have a role to play but they can’t say that ‘they decided this, therefore they were wrong’ because the court is the final determinant on an issue, the Constitution is quite clear about that. The mandate is not given to the JCC, it is given to the Constitutional Court so if you think that the Constitutional Court has done something wrong, you have to go back to the Constitutional Court and say ‘we need you to review because you have made this decision on the basis of this interpretation which we believe is not correct. But they can’t be the ones to say ‘you are wrong’. That is not their role,” Chipimo said.
“Their role is to determine was there misconduct or incompetence, not to make a final decision on the determination. That’s why there is a Constitutional Court otherwise there will be anarchy, everybody will be coming in, a university professor can say, ‘you were wrong’, this one ‘you were wrong’…it is okay for a university professor to say it as a comment on the judgement but for the JCC, your mandate is not to decide whether the judgement is correct or not, your mandate is to decide whether or not there was misconduct or incompetence.”
He observed that no one had accused the ConCourt judges of getting money to rule a certain way, thereby nullifying any accusations of wrong doing or misconduct.
“What they have done is that they have created the impression that they have overstepped their mark. I understand where they are coming from but when you read the report and you hear the outcome of their findings, it suggests that they are imposing the responsibility and an obligation on the court which I don’t think they have the mandate to do. Their mandate is only to determine was there misconduct or incompetence. That is what they are supposed to look at and then make a determination on that basis. There doesn’t seem to be misconduct. Nobody has said that they were paid money or there is evidence that they misbehaved but it seems that they are now going to the issue of competence and if you are going to go to the issue of competence, there must be a very clear requirement for the court to do certain things and there is nothing that they have shown which indicates that there was a clear requirement for the court to be the ones to highlight the 14 day issue, that the courts were the ones to insist that the proceedings continue on a Saturday, none of that has come out so it does lead one to conclude that they are going beyond their brief. They can make those comments if they want to say ‘the law needs to be amended or there is a lacuna, we need to have clarity or the court should take into account in future petitions these steps need to be taken or the petitioners need to be more aware on the right to demand these issues before the petition starts’ but to say that ‘this is what the court should have done’ means that you are going beyond your mandate,” Chipimo said.
And Chipimo said there was nothing strange about the manner in which the full bench of ConCourt judges overruled the decisions of a single judge.
“On the inconsistency part, there is sometimes a misunderstanding as to how the process of a court works when you have more than one judge. If you remember the way this thing was decided, there was a judge who made a decision about whether that matter could proceed or not but that judge cannot make a decision on what binds the whole court unless the whole court is also making a decision at the same time on that issue. So if I take an application on a preliminary issue like the 14 day issue and I appear before one judge, that judge can make a ruling but that ruling can be over turned when all the judges sit together and that is not an inconsistency but a process. So all of them together might decide as a majority, just as we saw in this case, three vs four or four vs three decide that this is the way it should be decided and not the way one judge sitting by themselves decided. So you can call it an inconsistency but it is not, it is just a part of the process,” he said.
“Like in Kenya, this ruling which annulled the election, it was the majority of the judges that decided but some judges decided ‘no, the election was properly held’. So whenever you have a bench, it has always been the case, you won’t have every time that every judge will agree with the outcome but there is the collective responsibility so that what the majority decide is what actually prevails and in this case, there was just a process where one judge made a decision and then that same issue was now put to all the judges and then the judges came up with a majority decision. So while it looks like an inconsistency, that is just the way the process works.”
Meanwhile, Chipimo disagreed with the JCC on their position that the ConCourt judges should have ruled on the 14 days even without any application from the petitioners.
“The question that one should ask however is ‘why this was not raised at the time that the first applications were being made?’ not when the 14 days had expired. Because if you look at what happened in Kenya, they had a similar situation and the parties even before the case began had already agreed that the interpretation of the 14 days was going to include weekends and therefore the courts should actually seat on weekends. That’s something that should have been raised by the lawyers of the petitioners at the very beginning, not to be raised at the end. Because it is not for the courts to be able to say ‘you raise these issues’ actually it is the petitioners that should raise these issues. And then if they find that the courts refuse to sit on weekends when they made it clear that the 14 days includes weekends, then there is right and proper case that can be brought on the basis of either misconduct or incompetence,” said Chipimo.
“If you look at this thing, it is actually the lawyers who represent each party who must be alive to these issues. You see the court can’t step in itself. It is not its job to step in and say ‘have you thought about this or have you thought about that’?”