CHAPTER IX - THE JUDICATURE

Section 110This section creates subordinate courts below the High Court and the Supreme Court of Appeal. The section however is silent regarding appeals from these courts. There is need for an additional provision to clearly state that appeals from subordinate courts shall lie to the High Court; and the following new subsection is suggested-

"(4) Appeals from subordinate courts shall lie to the High Court, unless otherwise provided in this Constitution or under an Act of Parliament".

 

Subsection (3)This subsection provides that

"(3) Parliament may make provision for traditional local courts presided over by lay persons or chiefs:

Provided that the jurisdiction of such courts shall be limited to civil cases at customary law and such minor common law and statutory civil cases as prescribed by an Act of Parliament.".

The composite term "traditional local courts" would be a strange name or description of these court units. The proper description would be to refer to them as "traditional or local courts".

It would then be merely a question of choice by Parliament or the Government as to which adjective between "traditional" and "local" to use to describe these customary law courts. In the recent past from 1970 to 1994 they have been called "Traditional Courts". From 1963 to 1970 they were called "Local Courts" and before 1963 they were called "Native Courts".

Further, the provision makes reference to "statutory civil cases". This is another strange description. The intention is clearly to create criminal jurisdiction for the lay courts and to restrict that jurisdiction to minor common law or statutory offences. The correct terminology was to refer to "minor common law and statutory offences", thus deleting the words "civil cases" and substituting the word "offences".

 

Section 111 (3)This section provides for the tenure of magistrates and persons appointed to junior judicial offices below those of judges. It prescribes the retirement age of seventy years. However, the section erroneously refers to the removal of these officers in accordance with section 119 of the Constitution. Section 119 is on the tenure of judges and not magistrates and therefore reference to this section ought to be deleted from subsection (3).
Subsection (4)This subsection defines the expression "judicial office" to include-

"(e) a person presiding over a Traditional Court".

Reference to Traditional Court should be to "traditional or local court" consistent with the language of section 110 (3).

Section 114In addition to salary, the section should extend to other benefits attached to the office of judges so that the determination of the salaries and other employment benefits of judicial officers is detached from the executive and is a responsibility of only one authority, the National Assembly. This approach is what has been followed in the recent determination by the National Assembly.
Section 118This section states that-

"The Judicial Service Commission shall have authority to-

(b) exercise such disciplinary powers in relation to persons in judicial office subject to this Constitution as shall be prescribed by an Act of Parliament, subject to this Constitution.".

The phrase underlined should be deleted where it first appears and retained in the other part.

Section 107 (1) (a)The term "Justice of Appeal" is one composite title of office just as is the term "Acting Justice of Appeal".
Paragraph (a)should therefore read "by reason of that Justice of Appeal or Acting Justice of Appeal...".
Section 119 (4)In-keeping with the text of the Constitution, whenever the section refers to gender it should be to both genders. Thus, it should speak of "his or her office", "he or she is satisfied" and "duties of his or her office."
Subsection (6)In the proviso, reference should be to "his or her appointment."