Maravi

Let’s avoid anarchy and veritable chaos

Let’s avoid anarchy and veritable chaos
By Editor
Wed 09 Dec. 2009, 04:00 CAT

Very important statements were made at the Ndola High Court golden jubilee celebrations on Friday which should not go without much comment from the Zambian people.

Rupiah Banda, as President of the Republic, made extensive valid observations on the issue of separation of powers and on the operations of the judiciary. But valid as those observations may be, they need scrutiny and analysis in the light of day-to-day practice, on the basis of what is pertaining on the ground.

Chief Justice Ernest Sakala also explained the challenges the judiciary was facing in carrying out its duties – lack of this and that, shortage of this and that and so on and so forth. But there is need to explore or analyse why things are like that so as to remedy the situation.

And the president of the Law Association of Zambia Stephen Lungu also made observations on the issue of independence and impartiality of the judiciary and its consequences on public confidence. These issues also need serious public consideration.

Rupiah observed that there is need to improve the conditions of service of both the adjudicator and support staff in order to recruit and retain high calibre staff for the judiciary. Who can disagree with this? Rupiah also went further to observe that something needs to be done about the physical infrastructure of the judiciary which could no longer meet the demands of the growing population. All who have been to our courts can bear witness to what Rupiah is saying and no one can disagree with him.

And Rupiah went on to propound some jurisprudence concerning the issue of separation of powers. He observed that separation of powers was a basic principle of the political system of modern democracies which Zambia was party to. He said that the doctrine of separation of powers implied that the function of the state should reside in the executive, legislature and the judiciary as different and separate entities, with none of the three branches of government able to exercise total power over the other two. Rupiah stated that his government appreciated and valued the doctrine of separation of powers because he viewed the judiciary as a complementary arm to the executive and legislature in providing checks and balances.

And as such, Rupiah observed that the doctrine of separation of powers was critical to the deepening of democratic processes and strengthening of institutions in the country. Again, who can disagree with what Rupiah is saying? But the story does not end here, does not end with what has been said. This is just the beginning of the story. The story ends with the doing, with what is being done, with the practice of all this, with what is pertaining on the ground.

The topic or issue of the independence of the judiciary is obviously a vast and complicated one. And this in itself is an encouragement to interested persons to attempt a deeper analysis of this issue and of the observations made by Rupiah. We say this because this issue is central to the administration of fair and equal justice in our country. As such, it attracts undue amount of lofty but empty rhetoric about the defence of democratic values and political principle, when what judges and magistrates themselves desire, as do those subject to the laws, is a critical but helpful examination of the practical ways in which such independence may be guaranteed, or at least promoted, in the day-to-day administration of justice. There is need to at least survey the broad issues involved, and draw attention to certain problems – as exemplified from practical experience and contested cases – as well as point to possible solutions.

The idea of independence of the judiciary as it presents itself before us today is a modern one. If we go back in history, or to non-western cultures, we shall generally find that, although the notion that justice should be fairly administered may well have been accepted, those who adjudicated or settled cases were not expected to be in any real sense “independent”.

Thus, in medieval England from whose common law we have derived our national legal system, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices. As such, not only was there no separation of powers, but those who judged were agents of those who ruled; while in theocratic societies, such as those where Islam was the state religion, judges had to conform to the dictates of the sacred law, as expressed in the Sharia and the Sunna. The same observations apply to societies with customary legal systems.

The independence of the judiciary is linked to, and derived from, two seminal principles: the separation of powers; and the rule of law. It is all very well to say that Montesquieu, writing in the 18th century, was mistaken when he identified separation of the legislature, executive and judicial powers as the cardinal feature of the then British constitution.

However, his misreading, if it was such, has proved self-validating, in that modern constitutions, starting off with that of the United States, have been generally premised on the notion of separation of powers; so much so that the independent constitutions which Britain offered us – as its former colonies – at the time of independence were almost without exception based on this principle.

But what does this separation of powers entail? In theory, that the three arms of government – legislative, judicial and executive or administrative – should be clearly separated from each other, and that each should operate independently of the others.

In practice, this ambition cannot be realised. Parliament makes the laws. The judiciary are there to implement and apply them. For the judiciary to refuse to apply such laws would betray their duty under the rule of law principle to faithfully apply the laws rather than their own prejudices and convictions – “a government of laws rather than of men”– and would in practice mean that the judges had become the legislators.

This seems to have been the outcome in the United States, where the Supreme Court, with its power to review legislation for constitutionality, has evolved – like a spider spinning thread – a whole tissue of new rules and principles from the bare words of the constitutions.

So in a contest between legislature and judiciary at the highest levels, apart from the US example, one might conclude that it is the legislature’s will which is to prevail. But many countries have endowed themselves with fundamental rights provisions in their written constitutions. These allow or require the courts to review legislation for conformity with the fundamental rights provisions, and to strike down laws which fail to conform to them.

However, wherever it is provided that the government shall be carried on by the party which commands majority support in parliament and which controls the executive, legislation is generally a product of the executive’s initiatives and policies.

As to the separation of the judiciary from the executive, so long as judges are appointed, paid, promoted or dismissed by persons or bodies controlled directly or indirectly by the executive, the judiciary’s independence may be more theoretical than real.

Independence of the judiciary is an essential pillar supporting the rule of law. It is not enough to say that the courts should follow and apply laws faithfully and equally to all. One must, in addition, demand that there should be no dispensing power vested in the executive or any other body which would relieve a person from the duties and processes of the law. The president in this country still retains the power to exempt by or from legislation persons or activities which would otherwise be affected by it.

As we have seen in the case of Frederick Chiluba and in the cases initiated by Rupiah against The Post, there is hardly a more powerful weapon which can be abused in the hands of a government than that of initiating or discontinuing prosecutions. It is notorious in this country that those in control of government have abused the prosecution process by harassing opponents of the regimes through unjustified prosecutions, or by exempting their own supporters, friends, allies or ministers from liability for illegal acts through the abuse of the judicial process.

The judiciary at whatever level may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do.

And when it comes to conditions of service, we think that all those who exercise judicial powers in the name of the state, and not merely those who are termed “judges”, must be included in our observations and covered by all these protections we are talking about. This is vital, but frequently overlooked.

Where there is special protection for judicial officers, it is usually confined to High Court or Supreme Court judges and the like. This does not extend to magistrates or chairmen of tribunals, who basically hold office at the pleasure of those in control of government.

The imperatives which drive us to seek protection for High Court and Supreme Court judges against improper interference or pressure apply even more forcefully to magistrates and members of local courts. All these, being much more open to illicit pressures both from government agents and from the public, need protection even more than High Court and Supreme Court judges, who are protected, literally by policemen and metaphorically by their high office and the mystique which surrounds it. We have seen what can happen, as in the case of Chiluba where he was acquitted by a magistrate court in the most questionable of circumstances with Rupiah’s government’s clear complicity. And after that, Rupiah has refused or ignored public outcry to have the matter appealed because he believes sending Chiluba to prison will not be the right thing for him to do.

Where do things like these, practices of this nature, leave the issue of independence of the judiciary? Independence means not subject to the control of any person; free to act as one pleases, autonomous; not influenced or affected by others and so on and so forth. We are not asking for anything like this because such independence doesn’t exist anywhere in the world.

And any claim by judicial officers to such absolute independence in these terms would have to be rejected as absurd. First of all, judges must be constrained by, and follow, existing laws and procedures. Judges are not to act as they please, otherwise one, viz. justice, would be sacrificed on the altar of another, viz. independence.

Judges are also constrained by less tangible requirements, such as those of courtesy, fairness, cultural traditions, the etiquette of the law – court and the profession. A judge or a magistrate is not free to act perversely, unfairly or for ulterior ends or motives. It is right that he or she should be prompt, attentive and competent.

To ensure these ends, the judicial officer is rightly placed under controls, both those of the judicial nature – notably by appeals – and of an administrative nature. Further, the judge must be rightly influenced by others in the performance of his or her judicial duties. For a start, there is no point in advocacy or pleading if it does not affect the judicial decision. Next, the judge must be sensitive to guidance and directions reasonably and lawfully given by those of superior rank to him or herself.

So absolute independence is not an issue. We are talking about relative independence, which reduces to protection or immunity from improper or unlawful influences, direct or indirect, on the way in which the judicial officer carries out his or her judicial functions. Such influences may be improper because they come from a person or body who should not be seeking to influence a judicial decision, or whose views should have been brought to bear by one of the legitimate methods of so doing. Thus, a president, minister, government servant, or a politician who has no locus standi in that case and that court cannot try to secure a particular result, say by some secret instruction to a judge or magistrate.

Thus, superior judicial officers should not be intervening in the conduct of a case in a court below, save by approved and legislated procedures. Thus, it is perfectly acceptable for parties and their representatives to put their case before the judge in court. They take the form of threats, rewards or indirect pressures which are tantamount to corruption. They serve an improper end – discriminatory treatment against political opponents.

This is what the Zambian people saw in the way Chiluba’s case has been handled. And this is why even the appeal by his wife and the measures the Chief Justice has taken – legitimate as they may be – are being viewed by the public with suspicion. In short, the handling of Chiluba’s case, among others, has seriously undermined public confidence in the judiciary, especially its independence, impartiality and capacity to do justice.

The examples we have given above demonstrate another point. Not only is independence relative and not absolute, but what is thought permissible and impermissible interferences change with time. It is clear that adjudication is not merely mechanical, and from time to time involves the exercise of judgment and discretion by the presiding judge. But what should be the limits of this discretion?

The observations made by Lungu, the president of the Law Association of Zambia, deserve serious consideration from the Zambian people and from our courts of law. We say this because the independence and impartiality of our judiciary is today in question. This is an observation that has been made by other people and in some way even admitted by some of our senior judicial officers. It is important, as Lungu has correctly observed, to realise the fact that an independent judiciary upheld the rule of law, otherwise there can’t be the rule of law.

And Justice Sakala is very right when he says that the lack of facilities compromises the quality of court performances, “Libraries and archival facilities are important tools for any judge”. The conditions under which our judges and magistrates are serving make their work almost impossible. We are asking and expecting too much from these people under the conditions which they are operating. In addition to lack of facilities such as proper libraries and archives, our judges need to be serviced by competent assistants who can help them do their work.

They need qualified lawyers as research assistants and aides. They need proper chambers serviced by competent support staff. And until we start to realise that the administration of justice is a very important and serious undertaking and start to spend on our judges probably more than we are spending on our ministers and deputy ministers and other members of the executive, we will not get much from our courts. And there is a great danger in this because a poor judiciary undermines public confidence in the rule of law.

When the rule of law fails, we know very well what happens: anarchy takes over and veritable chaos reigns in the nation. For this reason, there is need for us to take preventive measures and avoid sinking into anarchy and veritable chaos because it’s not easy to recover from such a situation. Let’s pay the price that is needed to avoid anarchy and chaos in the nation.

Labels: CONSTITUTION, DPP, JUDICIARY, LAZ, STEPHEN LUNGU

posted by MrK @ 6:34 AM