Written by Sunduzwayo Madise
I must start by saying I am aware that the Constitution in section 119(7) allows the deployment of judicial officers to other arms of the Government by the President, if it is in the public interest (whatever this means). However, I must hasten to add that the fact that the law allows it does not mean one must necessarily do it. For example, under the law, if you are married under customary law, even if it’s officiated at the Church, the husband has the legal right to seek other wives should he so wish. But how many have actually done this? Therein lies my argument. The fact that the law says you may do it does not mean you should do it.
To start with, in the case of the appointment of Justice Muhara as Chief Secretary (whether this position exists at law is subject for another day), the sanctity of the constitutional principle of separation of powers between the Executive was heavily and fatally breached. In my view, judges should not be seconded to the Executive. It is sacrilegious and only leads to trouble. This started with the secondment of Justice Ansah as Attorney General. The effects of this are still reverberating to now.
As a country, we never fully recovered from this appointment. The next pivotal one is the one involving Justice Muhara. In his case though it is more severe. Justice Muhara as Chief Secretary was a central and key part of the Executive. In fact, he got so involved in the machinations and schemings of the state that even the title of judge was soon dropped in reference to him. He was at the helm, making decisions and policies for the Executive for five odd years. To compound issues, he was the one who issued letters that purported to fire the Chief Justice and some senior judges. As a judge he knew very well that what he was doing was unlawful and yet he did it anyway.
He opted to side with illegality over legality. At their time of need, he abandoned his brothers. If one considers the acrimony between the Executive and the Judiciary, and the unpalatable words used by the former President, his spokesperson and his Minister of Information, by sticking with the Executive during this time, it is clear which side Justice Muhara chose. He made so many decisions that had a profound effect on the judiciary. Now he wants to part of the same Judiciary? This is more evidence that this was an unholy matrimony between the two branches.
Justice Muhara should not have accepted the poisoned chalice that was offered to him, and should have declined to be appointed as Deputy Chief Secretary in the first place. I would unequivocally say that we should stop appointing judges to these positions in the first place. I believe that the only times when a member of the judiciary should be seconded is one provided for in the law. One institution readily comes to mind, the Electoral Commission which must be headed by a judge.
In the case of Justice Muhara, I believe that the toxicity that evolves around him beggars the question: should he really go back? The bitter aftertaste of his recent entanglement with the Executive is still fresh in our mouths. In my view, his conduct whilst still a judge but as a key and influential member of the Executive should bar him from going back. Of course, legally, there may be nothing to stop him, unless Judicial Service Commission recommends otherwise. His conduct was so unbecoming that of a judicial officer that, in my view, it will be a mockery of the system to allow him back into the judiciary. What type of working relationship will ensue with his superiors, especially the Chief Justice? Will this not poison the judiciary? Justice should not only be done, but crucially and importantly, it must be seen to be done. Any perception of unfairness or impropriety may be potentially fatal to the justice system. How will lawyers appearing before him perceive him? What of court users? What of the public? What of the nation?
Views expressed in this article are those of the author