Effect of a procedural infringement on the validity of a petition
The petition that commences the impeachment proceedings derives its validity from the Constitution; and thus unless clear intention is expressed, that validity cannot be taken away only because there is a procedural infringement. The duty imposed on the Chief Justice to make a prima facie determination is derived from the validity of the petition. And that duty, by the terms of the Constitution, prevails until the Chief Justice has performed it. There is nothing in the Constitution that prevents the Chief Justice from performing that constitutionally imposed duty once the President has referred the petition to her. Any attempt to stop that process will be subverting the Constitution. It goes to confirm that the substantive process commenced by the petition is divorceable from the procedural steps that are, or may be put in place, to resolve the petition; the procedural steps cannot override the validity of the originating process.
Prima facie case before a committee is set up against the Chief Justice
While it is in the interest of justice that reasons accompany judicial or quasi-judicial outcomes, there is no known jurisprudence in our courts to the effect that, a decision rendered without detailed reasons is thereby a nullity. This holds especially true when a prima facie case is said to have been made without reasons, but which merely requires the adversary to present a defence, or as in the instant case, to appear before a committee of enquiry in response to the allegations for which the prima facie determination has been made.
Fourth, I do, however, declare that, upon a proper purposive construction of the whole of article 146 in the context of the Constitution viewed in its entirety, the Chief Justice must be given the benefit of a prior determination of whether a prima facie case has been established against him before the President may lawfully establish a committee to consider a petition for his removal. This prima facie determination is to be made by the President in consultation with the Council of State. Thus, as claimed in the plaintiff’s fifth relief, the consultation by the President with the Council of State in respect of the appointment of a committee to inquire into a petition for the removal of a Chief Justice has to determine first whether the said petition discloses a prima facie case, before the President may proceed to the appointment of the committee, again in consultation with the Council. In the course of my judgment, I also advised the Council of State that it would be prudent for it to evolve a convention by virtue of which the advice of an independent reputable lawyer would be sought by it as part of the consultative process with the President on this issue.
Publication of a petition and the in camera requirement
The alleged leakages whoever caused them committed plain illegality in terms of the prevailing provisions in article 146(8) which mandates in camera holding of all proceedings. To stand on an illegality to request a departure from a provision of the constitution is a dangerous position to take and must be discountenanced by any Court of law.
A balanced assessment of the competing public interests in this area is bound to lead to a certain degree of curtailment of the freedom of expression of a petitioner for the removal of a Chief Justice or any other judge of the Superior Court of Judicature. The constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner were allowed to publish his or her petition to anyone other than the President. This is likely to lead to the petitioner’s allegations being aired in public, while the judge’s response can only be considered in private. This would lead to grave adverse public relations consequences for the judiciary. The institution of the judiciary could be undermined without any justification. Accordingly, in my view, a petitioner under article 146 may not disclose the contents of his or her petition to the media nor indeed to any person other than the President. He or she may reveal the fact that he or she has presented a petition to the President, but not its contents, if the purpose of the framers of article 146(8) of the 1992 Constitution is to be adhered to.
Whether administrative acts of the Chief Justice are immune
In sum, I would say that the administrative acts of a Chief Justice are not immune from challenge in an impeachment process. Furthermore, the establishment by the President of a committee, pursuant to Article 146(6), to investigate allegations of misconduct founded on administrative acts would not constitute unconstitutional interference with the judiciary. Such allegations must, however, surmount the prima facie case hurdle, before the President may lawfully establish the committee.
Whether the courts may restrain article 146 proceedings
the Constitution, 1992 itself has provided the grounds and the procedure for the removal or suspension of a person who has been constitutionally appointed Chief Justice, and no court has jurisdiction to suspend or grant an injunction to prevent him from discharging his duties or to remove a Chief Justice. Indeed, it would be a violation of the Constitution, 1992 for any court to attempt to do this and clearly this court has no jurisdiction in such a case
The court does not have original concurrent jurisdiction with the body empowered to exercise jurisdiction to adjudicate on matters properly falling within the parameters of article 146 of the Constitution, 1992.
Article 146 does not prescribe any capacity requirements for petitioners seeking the removal of a Justice of a Superior Court or of the Chief Justice. There is no justification for implying such a capacity requirement, since a prima facie case precondition has to be established, even in relationsic the removal of a Chief Justice, as already discussed. This Court should be careful not to put unnecessary impediments in the way of those seeking to hold judges to account for stated misbehaviour, incompetence or infirmity of body or mind, provided they are able to leap over the hurdle of establishing a prima facie case against the judge complained of.
