Threat to constitutionalism

As the government continues to drag its feet on the issue of enacting the amply substantiated electoral reforms, it has come up with a constitutional amendment bill and enabling bill which seek to create the so-called National Remuneration Commission under the pretext of providing a fair, coherent and efficient means of determining the remuneration of members of all public bodies.

On close inspection, the substance of the bill reveals much more nefarious intentions. In one stroke, the bill seeks to significantly diminish the power of Parliament to determine the remuneration of members of public bodies and all branches of government, and to undermine the independence of the judiciary and other government watchdogs such as the Ombudsperson through the purse.

It is, in short, a naked effort at centralising power. Members of Parliament would be acting rationally and in the national interest if they treated the bill with utmost scorn and considered it dead on arrival at the gates of the august house.

It is clear from the constitutional amendment bill that its target is primarily the judiciary, and secondarily Parliament. It seeks to amend section 114 of the Constitution, which currently vests the power in the National Assembly to determine the remuneration of judicial officers, so that the National Assembly determines the remuneration ‘on recommendation of the National Remuneration Commission’.

In order to effectuate the proposed amendment, the bill adds sections 194A-C to the Constitution which establishes the Commission. The wide terms in which the Commission is defined are by themselves a cause of concern. On the one hand, the specific power of the Commission is left to be defined by an Act of Parliament. This is a carte blanche to Parliament to give whatever powers it wishes on the Commission which may otherwise not have been approved in a referendum.

Indeed, the Commission’s enabling bill includes powers that elevate the Commission to the position of a master over important institutions of public accountability. Apparently, the Commission has the power to ‘summon’ controlling officers of branches of government and public bodies to ‘answer questions’ before it. This could very well include the Chief Justice, the Speaker of Parliament, the Chairperson of the Human Rights Commission and the Ombudsperson. This is simply unacceptable.

On the other hand, the bill says that the primary function of the Commission is to ‘determine the remuneration of persons who draw their remuneration from public funds’. This power and the generality with which it is framed contradict the primary proposed amendment which on the face of it reserves the ultimate role for the National Assembly to make those remuneration determinations.

There is alsoa nebulous provision declaring the independence of the Commission, and yet the Commission’s enabling bill clearly says that members of the Commission shall be appointed by the President.

It suggests that the at least four of its11 members are members by office (ex officio): Secretaries for Local Government, for Human Resources, and for the Treasury and  the Controller of Statutory Corporations, but all these are in any case presidentially appointed.

Six of the 11 members are nominated by designated professional bodies, but this is no guarantee of independence given the practice of demanding more than one nominee and other prescriptions. The chairperson is appointed solely by the President.

The proposed enabling bill expressly provides that the Commission shall report to the President, and its own salaries shall be determined not by the National Assembly but by the Minister. The Commission is hence completely at the disposal of the President.

If such a Commission was deemed necessary, one also wonders why it was not placed at the disposal of Parliament in terms of the appointment of its members, accountability and reporting, at least insofar as independent bodies such as the judiciary, the Ombudsperson, the legislature are concerned.

The question of the remuneration of judges is so critical to judicial independence that the framers of the Constitution precociously entrenched section 114   of the Constitution – meaning that it can only be amended through the more rigorous process of a national referendum. Through incompetence or blinded by petty vendetta against the judiciary, the drafters of these bills failed to understand the significance of this section or at least recognize that it is an entrenched provision.

Under the current arrangement, Parliament determines the remuneration for judicial officers via its Public Appointments Committee. The process is not as efficient as it could be but, forits part, Parliament has tried to refrain from politicising it. These bills seem to add a layer of bureaucracy in the manner of an omnibus commission whose mandate to recommend appropriate remuneration extends over public officers in all branches of government and beyond. If passed, the President will have arrogated to himself power over all branches of government, not just the judiciary but also the legislature, government watchdogs, statutory bodies and other state agencies.

These concerns strike at the core of constitutionalism, the rule of law and good governance. They reveal an unambiguous effort by the government to centralise power in the presidency, to reduce the power of the legislature, and to control the judiciary and other government institutions that are supposed to serve as watchdogs of the government.