CJ’s referral breaches Constitution

A Senior Constitutional Lawyer, Alois Jerewai, has warned that the Ombudsman Commission’s referral of Chief Justice Sir Gibbs Salika to the National Executive Council [NEC]breaches the constitutional rights of the Public Prosecutor.

He stressed that the NEC and all constitutional offices must act strictly under the Constitution, the country’s supreme law and not allow the Organic Law or any other statute to override it.

Jerewai urged the NEC to scrutinize the referral carefully, weigh it against constitutional provisions, and respect the distinct powers of each office before making any decision.

The Ombudsman Commission's referral of Chief Justice Sir Gibbs Salika to NEC, has ignited public debate over the roles of constitutional offices.

The move, which bypassed the public prosecutor's earlier decision to clear allegations against the Chief Justice, has raised questions about whether the Commission acted within its jurisdiction.

Jerewai said the decision by the public prosecutor should be the final decision as per section 177 of the constitution, which clearly outlines the mandated functions of the public prosecutor.

He said the constitution overrides all other laws, including the organic law on the Ombudsman Commission, which was cited in the referral statement.

"Here the constitution squarely, which is the most superior law to the organic law, places squarely in the hands of the public prosecutor the power to bring or not to bring proceedings under the leadership code.

"The Public Prosecutor has made the decision based on its weighing up of all the material presented." Jerewai said.

Mr Jerewai made reference to a Supreme Court reference in 2008 filed by the Ombudsman Commission requesting the Chief Justice to appoint a leadership tribunal in which Mr. Jerewai was the counsel representing the Judicial and Legal Service Commission.

He said once such decision is made by the public prosecutor, the Ombudsman Commission cannot use the organic law to overlap or override the public prosecutor's constitutional authority.

"In the case of the Chief Justice, the appointing authority is the NEC.

"Public prosecutor did not make the decision not to pursue the matter any further, therefore did not refer the matter to the NEC, who is the appointing authority of the Chief Justice.