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(STICKY) 'Independence of Judiciary not guaranteed in draft constitution'

'Independence of Judiciary not guaranteed in draft constitution'
By Ernest Chanda
Tue 29 June 2010, 02:10 CAT

INSTITUTE for Human Rights and Democratic Governance (IHRDG) executive director Franco Kapijimpanga has observed that the independence of the Judiciary is not guaranteed in the draft constitution. In an interview, Kapijimpanga said the Executive still had a hand in the operations of the Judiciary as expressed in Article 182.

Article 182 (1) of the draft constitution states that: "The Judiciary shall annually prepare and submit its budget estimates to the Minister responsible for finance who, taking into consideration the equitable sharing of national resources, shall determine the budget for the Judiciary."

But Kapijimpanga observed that the Judiciary could not be totally independent of the Executive.

“Independent Judiciary is not guaranteed when we look at the character of Article 182 of Part XI of the Draft Bill. Still we are talking about separation of powers. By virtue of Article 182 the Executive has a hand in the way the Judiciary operates.

This can be subject to manipulation and compromises effective process accountability and delivery accountability,” Kapijimpanga said.

“The Legislature, Executive and Judiciary must be completely independent of each other. This is not the case because all ministers both provincial and Cabinet shall be members of the National Assembly.

This demands that the Legislature and Executive originate from the same stock. It limits and compromises the character of checks and balances. This is also insufficient to insulate against manipulation and effective accountability in the delivery of services.”

On accountability, Kapijimpanga said the draft constitution created some imbalance between the President and members of parliament. “Part IX and Part X reflect an imbalance on how the President and the MP is held accountable to the people.

The fundamental concept of governance means accountability should be at the lower levels and maintained throughout the pyramid of leadership. With Part IX and Part X emphasis seems to be more focused at a high level, but slim at the lower level,” he noted.

“Whereas the President can be impeached, there is no provision for MPs to be removed save for elections and by-elections. In particular Article 148 in Part X is based on the role of political parties and MPs state of mind with no option for the people to have a say on the future of MPs except on elections and by-elections.”

And Kapijimpanga said the 40-day period given by the National Constitutional Conference (NCC) in which the public should read the draft constitution and comment on it was too short.

“The Institute for Human Rights & Democratic Governance is of the view that the 40-day timeline is insufficient if this process is to have legitimacy and credibility.

In view of the inconsistencies to be considered for review in the Draft Bill, it is prudent that government and the NCC make for an extension so that submissions are well informed to get the will of the governed," said Kapijimpanga.

Labels: CONSTITUTION, FRANCO KAPIJIMPANGA, JUDICIARY, NCC

posted by MrK @ 1:26 PM