Tuesday, April 04, 2017

Bumpy and rambunctious

The Bill, if passed into law, will not only subject some elected leaders to unfair by-elections but also encourage corruption and impunity in the Judiciary where judges will take advantage of their final authority to be enticed to deliver judgement in favour of a party.
A member of the Judicial Service Commission is reported to have expressed those sentiments in an advisory opinion he has given the Speakers of each chamber of Parliament. It is an amazing declaration. On the face of it, it is a restatement of one of our favourite shibboleths: the Judiciary simply can't be trusted. It is also a startling declaration about the failure of the Judicial Service Commission to ensure that the administration of justice is just and fair. Finally, it is an indictment of the electoral system that this commissioner feels will lead to electoral unfairness, and judicial corruption and impunity.

Elections take on a mind of their own in the best of circumstance. Our circumstances, though, are anything but good. Political parties have failed to reflect, truly, the electorate; instead, they remain grotesque caricatures of the founder-owners. Parties are ill-suited to the onerous task of organising the political needs of the people or the proper distribution of political power among stakeholders. Instead, they are weapons of mass destruction and it is why so many politicians spend so much treasure in order to occupy party positions of power and influence.

As a result of the dysfunction in political parties, elections are not won or lost on the basis of ideology or more prosaic bread-and-butter concerns of the electorate; the are won or lost on the basis of the curation of ethnic and tribal loyalties, the cash-based influencing of voters and the oftentimes violent intimidation of candidates and their supporters. For these reasons, it is almost certain that disputes will arise at every electoral level: MCA, Governor, Woman Representative, MP, Senator and President. These electoral dispute will consume a disproportionate amount of the Judiciary's energy and, crucially, time. For the sake of sanity, the Judiciary can't expend most of its energy and time hearing or determining electoral disputes. The litigation must come to an end at some point and it is at the Court of Appeal that electoral litigation must end. (I would argue that even presidential decisions should only be decided at the Court of Appeal, but, maddeningly, the Constitution disagrees.)

For a member of the Judicial Service Commission to openly and recklessly sow doubt about not just the elections process but the administration of justice, it is impossible to tell whether he is a shill for governors with doubtful electoral prospects who would love to prolong litigation all the way to the already discredited Supreme Court or whether he has given up all hope that the situation will ever improve. Because the opportunities for rent seeking have multiplied exponentially since the election of the first generation of devolved governments, elections and election petitions have become akin to do-or-die events; the stakes are so high that no matter the vociferous protestations of innocence, this member of the Judicial Service Commission confirms that "enticements", whether at the Court of Appeal or elsewhere, are almost certain to play a role in the determination of the election petitions.

What we are witnessing today is the unbridled desire for State office and the pre-election maneuvres that candidates are engaging in, including by activating tame mouthpieces to their causes, in order to secure whatever advantages there are to secure. If this advisory opinion to the Speakers is accepted as an affront to the candidates' right to "access the courts", this will simply be one other safety net strung across the roiling waters of the electoral oceans that one set of jittery candidates will surely need come the 9th August. Dear reader, the situation is about to get even crazier so hold on to your seat and settle in for a bumpy and rambunctious ride.

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