By GRACE CHAILE LESOETSA
ATTORNEY General Kabesha Mulilo has submitted to the Constitutional Court that the appointment of judges is done subject to the availability of office space and funds.
Mr Mulilo also stated that it is difficult to have the minimum number of Judges at each particular moment in time due to retirements, resignations and deaths. He stated that the length of the procedure of appointment of Judges enshrined in the Constitution which involved the President, the Judicial Service Commission (JSC) and ratification by the National Assembly also makes it difficult to achieve the minimum number.
In this matter, the Institute of Law, Policy Research and Human Rights Limited has petitioned the Concourt to compel the Judicial Service Commission to immediately process the appointment of judges for the Supreme Court, Court of Appeal, Constitutional Court and the High Court . The Institute is seeking an order that the inability or failure by the JSC to identify and recommend those who are qualified to be appointed as Judges of the Supreme, ConCourt, Court of Appeal and High Court is unconstitutional , thus unlawful.
The petition is seeking an order of mandamus compelling the JSC to immediately identify and recommend those who are qualified to the said superior courts to fill all vacancies in order to comply with the Republican constitution (amendment) Act no.2 of 2016 and the superior courts (number of Judges) Act no.9 of 2016.
Mr Mulilo in his answer to the petitioner’s petition, stated that JSC has not neglected its constitutional duty.
“Further, article 189 of the constitution which provides for pension benefits, affects the judiciary too. When a judge retires it is expected that their benefits be paid promptly and regularly. Where a pension benefit is not paid on the last working day, the judge shall stop work but the name shall be retained on the payroll, until payment of the pension. This entails that the JSC cannot, under such circumstances, immediately fill up vacancies until Treasury Authority is granted in that financial year to pay and replace or recruit as the case may be,” he said.
He stated that in terms of composition, the JSC has met the sittings of each superior court which include articles 126,129,132 and 135.
“For instance, article 126(1) provides that the Supreme Court shall be constituted by an uneven number of not less than three judges, except when hearing an interlocutory matter. The full bench of the Supreme Court shall be constituted by an uneven number of not less than five judges,” the AG stated.
Mr Mulilo said the JSC is autonomous in its performance of its functions.
He has asked the court not to grant the petitioner the reliefs it is seeking.