Wednesday, June 16, 2021

Landmark decision by the Supreme Court


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The National Assembly is now completely free from encroachment by either the decision of political parties or the executive. The separation of powers is now guaranteed through the decision of the Supreme Court. The Supreme Court asserts that the 1997 Constitution provides a system of governance based on the principle of separation of powers. It said if nominated members of the National Assembly are appointed to serve at the pleasure of the President, it will violate the doctrine of separation of powers.

In this regard, all the nominated members of the National Assembly can no longer be removed by the executive. Suffice it to say, the removal of section 91(1)(d) from the 1997 Constitution through a private member’s bill has finally transformed the National Assembly into an independent body capable of making decisions without fear or favour, affection or ill will. This confirms the importance of having independent and impartial courts capable of making decisions on the basis of democratic and republican values of jurisprudence. The judge relied on the principle of the separation of powers to interpret section 231 which states, among others:

“(1) Where any power is conferred by this Constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions, if any, to amend or revoke the same. ………

“(5) Without prejudice to the provisions of section 167,but subject to the other provisions of this Constitution,the power to make any appointment to a public office includes the power to dismiss any person so appointed.”

According to the Chief Justice, the relevant provisions of the Constitution that deal with the National Assembly are section 89 which deals with qualifications for membership, section 90 which deals with disqualifications for membership and section 91 which deals with the tenure of seats of members. In this regard, the Supreme court focuses on these provisions to interpret the powers of the President and concluded that they contain no provision empowering the president to revoke the seat of a nominated member.

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This landmark decision will have far reaching ramifications on the draft Constitution. The CRC should therefore take note that the doctrine of the separation of powers is a fundamental principle of jurisprudence that has been given credence by judicial precedents on 28th January 2020 in Yakumba Jaiteh vs Clerk of the National Assembly and others. In this regard, the power to appoint National Assembly members should ultimately be expunged from any new constitution as powers that do not accord with the principle of separation of powers.

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