I am not a lawyer, however I read with interest the article entitled "Framers of the constitution wanted president to appoint judges" by one Bashi Letsididi in the Sunday Standard newspaper of April 19 - 25.
Thankfully the author quoted but unfortunately mis-interpreted, the minutes of the Independence Conference that was held at Malboorough House, London in February 1966. Rre Letsididi quoted a statement by the legal advisor to the UK team that "It was usual for the President to be formally responsible" (for appointing puisne judges). In said statement the significance of the word "formally" was completely ignored by Rre Letsididi. The same word was included in the next quote "The conference agreed that puisne judges should be FORMALLY (my caps) appointed by the president, acting on the advice of the Judicial Services Commission".
In my layman's view, if the framers of the constitution had wanted the president to have discretion as to whether or not to follow the advice of the JSC, they would have had little use for the word "formally" in their discussions/draft, much less in the final agreement.
In my view the final version that is now contained in section 96 of the constitution succintly captures the intention of the framers. The phrase "acting in accordance with the advice of the Judicial Services Commission" provides the intended and necessary content that would have been missing, had the word "formally" and nothing else, been used in the final constitution. In so doing, the phrase does not reduce the "formality" of the president's action; it defines it.
The conclusion I draw is that the framers of our constitution wanted the JSC, and not the president, to exercise discretion in the choice of puisne judges.
