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What the constitution says is really what the court says it says
DEAR EDITOR,
I refer to a recent newspaper editorial of Monday, 5th August (Constitutional governance). According to the editor, there now exists a disjunction between what the constitution says (on one hand) and (on the other) what our highest court, the CCJ, says the constitution says. The newspaper in question and others hold that the former should trump the latter. But this is a fake distinction. Constitution interpretation does not work that way.
All this arises in relation to the CCJ’s ruling in Section 8 that (i) notwithstanding its defeat and the resignation of the President and the Cabinet, (ii) the Government shall remain in office and (iii) “the tenure in office” of the Cabinet and the President continues (albeit on a caretaker footing). To reconcile the “defeat and resignation” stated in (i) with the survival of a functioning cabinet clearly implied at (iii), the political opposition, the newspaper and others have concocted the legal witchcraft that a material duality in constitutional interpretation co-exists: what the constitution clearly means and what the courts say the constitution clearly means.
But the constitution does not interpret itself. What it says is really a human intellectual endeavour. And has been long established, and correctly declared by the CCJ in Section 5 of its ruling: “The judiciary interprets the constitution”. It is only that interpretation that matters, only that that binds. Any other interpretation could only be a wish.
True, we may disagree with a court ruling. And, while the newspaper did not so assert in this particular editorial, it has recently argued in its role as the moderator of its blog that Section 8 of the CCJ ruling is “carelessly written”. But one suspects that the newspaper and others may have found this bold contention unsatisfactory as it would still leave the ruling (and, therefore, the cabinet) intact. Hence, the attempt to falsely distinguish between what the constitution says and what our highest court says it says. No such division exists that finally matters. Only the latter carries the day. And we have to live with it until and unless we reform the constitution.
Yours faithfully,
Sherwood Lowe
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