THE additional note may prove to be of greater relevance in judicial history than the majority judgement. Justice Faez Isa of the Supreme Court has skilfully and precisely cut through the legal thicket that has become the court’s special powers under Article 184(3) of the Constitution and the applicability of qualification and disqualification criteria for parliamentarians in Articles 62 and 63. Certainly, the majority judgements that have seen some high-profile politicians disqualified and others deemed eligible to contest elections are legally valid and constitute the law of the land. Nevertheless, there is a great deal of uncertainty among political parties, candidates, the legal community and the general public about what the sum of the judgements handed down so far amounts to in terms of legal principles, precedents and rules. For example, as Justice Isa has asked, “Does every nondisclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?” In layman’s terms, Justice Isa is seeking clarity on whether trivial errors can result in disqualification.

Another important question is the apparent conflict between Article 225 of the Constitution, which requires that election disputes be settled by an appropriate tribunal as empowered by parliament, and Article 184(3), the Supreme Court’s original jurisdiction to hear matters pertaining to violation of fundamental rights. Independent and renowned legal experts have questioned the wide use of the superior judiciary’s suo motu powers and a case can be made for a review of such powers to return them to narrower, less frequent usage. The benefit of Justice Isa’s suggestion that the full court address seven questions he has set out is that if implemented, it could produce some much-needed clarity in what has quickly become a murky and confusing area of the law. Justice Isa’s seventh and final question is perhaps the most significant for the law aiding or impeding national political stability: “if a candidate is disqualified on account of non-disclosure or misdeclaration, does such disqualification subsist only till the next elections or is it permanent?”

Disqualification for life has the twin effect of depriving a potential candidate of the right to contest elections forever and permanently denying a voter the right to choose his or her preferred candidate. In a democracy, those rights should never be denied unless the very highest quality of evidence is produced and the crime that a candidate is deemed guilty of is manifestly of a grave nature. The judicialisation of politics has and will continue to inflict a cost on democratic institutions. The judiciary should not be expected to stay away from certain matters simply because a decision can have political ramifications. But as Justice Isa’s seven questions have made clear, the superior judiciary should strive to make interpretation of the law consistent and readily understood.

Published in Dawn, June 15th, 2018