In Re the Matter of Commissioner for the Implementation of the Constitution [2011]

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In Re the Matter of Commissioner for the Implementation of the Constitution [2011]IN RE THE MATTER OF COMMISSIONER FOR THE IMPLEMENTATION OF THE CONSTITUTION 2011, ADVISORY OPINION APPLICATION 1 OF 2011 – ON APPOINTMENT OF AG, DPP AND OTHERS

On the 3rd March, 2011, the Commission for the Implementation of the Constitution sought Advisory Opinions of the Court on the following matters:

  1. Whether the appointing authority in making an appointment under Sections 24(2) and 29(2) of the Sixth Schedule (Transitional and Consequential Provisions) must have regard to the other provisions of the Constitutional regarding the appointment of Constitutional Officers
  2. What is the nature and extent of the consultation required under the National Accord and Reconciliation Act in making nominations and appointments to Constitutional Officers?
  3. Should the processes of nomination and appointment have due regard to and comply with the provisions of Articles 10, 73 and 232 of the constitution?
  4. If the answer to question 1 above is in the affirmative, does such disregard and/or noncompliance render the resultant nomination and/or appointment unconstitutional?
  5. Should the processes of nomination and appointment of Constitutional officers, officers of state and Public Offers provided for in the Constitution have due regard to and comply with the provisions of Articles 10,73 and 232 of the Constitution?
  6. How should the appointing and/or nominating authority exercising the powers of appointment and nomination under the Constitution and the Sixth Schedule of the Constitution apply the provisions of Article 27 of the Constitution?

Directions

Article 156(2) of the Constitution provides that “The Attorney General shall be nominated by the President, with the approval of the National Assembly, appointed by the President.”

Article 157(2) of the Constitution provides that “The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.”

Article 10 of the Constitution set out National Values and Principles of Governance. These guiding principles and values include:

  • Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
  • Human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalized;
  • Good governance, integrity, transparency and accountability and
  • Sustainable development.

Article 73 of the Constitution sets out the guiding principles of leadership and integrity which include;

  • Selection on the basis of personal integrity, competence and suitability, or election free and fair elections;
  • Objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favoritism, other improper motives or corrupt practices;
  • Selfless service based solely on the public interest, demonstrated by-
  1. Honesty in the declaration of public duties; and

It.This declaration of any personal interest that may conflict with public service.

Accountability to the public for decisions and actions; and

d.) Discipline and commitment to public service.

Article 232 also sets out the values and principles of the Public Service.

Apart from outlawing discrimination based on race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age disability, religion, conscience, belief, culture, dress, language e or birth Article 27(3) provides that, “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

Article 27(6) obliges the State to give effect to the realization of the rights guaranteed under Article 27 by taking legislative and other measures including affirmative action programmers and polices designed to redress any disadvantages suffered by individuals or groups because of past discrimination.

In addition Article 27(8) requires the State to take legislative and other measure to implement the principle that not more two-thirds of the members of elective or appointive bides shall be of the same gender.

Article 54(2) obliges the state to ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.