Wednesday, August 28, 2013

Why won't the JSC admit it is wrong?

Gladys Boss Shollei accused her employer, the Judicial Service Commission, of abusing its power, behaving in an arbitrary manner, and unlawfully asking her to "step aside" while it investigated mysterious claims against her. At least that was the substance of her application in the High Court. The Judicial Service Commission, on the other hand, was convinced that its Secretary, the Chief Registrar of the Judiciary, the erstwhile Ms Shollei, had a long-fingered interest in procurement decisions made in the Judiciary, that she was capricious and difficult to work with, and that she had dictatorial tendencies that simply had to be investigated. That at least is the innuendo surrounding the Judicial Service Commission's decision to send Ms Shollei on forced leave while it investigated the mysterious claims made against her.

Ms Shollei has every right to protect her reputation; she, however, does not have a right to lie and cheat in order to prevail against the JSC. So far, she has not been accused of lying or cheating. So far, the High Court seems to agree with her: the JSC acted in bad faith when ti did what it did. In a civilised society, at least the ones that we compare ourselves to in the West, when a person is aggrieved by a decision of their employer, they go to court. Ms Shollei acted in a civilised manner.

Once a court is seized of a matter, there are several possible outcomes. The court can hear all the parties (or one of them in extraordinary circumstances) and make a decision; it may refuse to hear any of the parties and ask them to resolve the matter without resorting to the court process; or it may hear part of the case and suspend proceedings while the parties negotiate an agreement. Majanja, J., seems to have chosen to hear Ms Shollei before directing her and the JSC to negotiate a settlement.

This is where it gets murky. Ms Shollei, as Chief Registrar, and the Judicial Service Commission, are public institutions. If one or the other acted improperly, the consequences are significant. Either one or the other cannot be trusted to discharge their functions competently, honestly or with the national interest in mind. Therefore, the negotiations between the Chief Registrar and the JSC can only result in one or the other admitting that they were wrong. If it is the Chief Registrar, prosecution for impropriety must follow her admission. If it is the JSC, the President must appoint tribunals to investigate the members (and the tribunals can only reach one conclusion given the admissions made). The JSC precipitated this situation; if it admits it is wrong then all the JSC's claims of spearheading "reforms" in the Judiciary will be mere hot air and a waste of our time.

Whatever we feel about the laws and regulations that seek to civilise us, we cannot pick and choose which laws and regulations are convenient to observe, and which ones are not. The members of the JSC include well-trained, experienced and respected lawyers. How is it that they looked at the provisions of the law and chose to ignore them? Even in the absence of key members of the Commission, before the Commission took the precipitate step, why did it not obtain the opinion of an unbiased third party? It is the JSC that is to blame for the situation, not the Chief Registrar. Whatever the Commission feels of the rules regarding the dismissal or suspension of the Chief Registrar, or the Code of Regulations of the Public Service, the Commission was not at liberty to make things up as it went along. on that ground alone, regardless of whether the proof of what they allege against Ms Shollei is found, they must compensate her and reinstate her to her office.

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