Section 8.26 provides for the
process of removing a judge
from the bench, whereby the
president will make that decision
based on the recommendations
of a tribunal which the president
chooses alone.
Judicial review
Provision
institutions
democracy
of
independent
that
support
( There must be constitutionally
provided
independent
institutions
that
support
democracy
Section 8.6 (3) empowers
the constitutional court to
make a final decision
whether
an
Act
of
parliament or conduct of
the president or parliament
is constitutional.
Section
8.10
(1)
(c)
mandates the High court to
decide on constitutional
matters except those that
exclusively fall under the
jurisdiction
of
the
constitutional court.
Through chapter 12, the
draft provides for the
establishment independent
commissions with very wide
objectives that are focused
on supporting democracy
and constitutionalism and
securing the observance of
democratic values by state
There is need for further checks
and balances to ensure that the
members of the tribunal are not
the president’s loyalists, who will
be used to get rid of judges who
are objective. Therefore this
procedure is still weak and can
be used to undermine judiciary
independence.
In keeping with regional and
international best practices, the
COPAC draft gives effect through
these provisions to the principle
of
constitutionalism
which
requires that the judiciary must
have the power to review
legislation and conduct against
the constitution; invalidate such
conduct or legislation that is
found inconsistent with the
constitution.
The COPAC draft provides for
these institutions in a manner
that
guarantees
their
independence,
impartiality,
adequate funding and they have
been given a constitutional
mandate that is wide enough for
them to achieve their purpose of
supporting democracy. However
22
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