Maravi

Independence of our judiciary

Independence of our judiciary
By The Post
Mon 23 Aug. 2010, 04:00 CAT

ABRAHAM Lincoln once said that “nearly all men can stand adversity. But if you want to test a man’s character – give him power”. And it doesn’t need to be a lot of power or even political power.

All it needs to be is power over other people, things, or the authority to determine what should be done. Some people begin to change, to be deformed, as soon as they have a little responsibility – a little, not much, power – and we think that the more power people have, the greater the risk; that’s a fact.

We think it requires being aware of the danger and ever alert, ever vigilant against it. We should never view public office as something personal, something that is ours, something that is to be enjoyed. Rather, we should look at public office or authority as a tool for a legitimate cause. They say “power tends to corrupt, and absolute power corrupts absolutely”.

We would agree with that statement in principle. We think that power does corrupt – let’s call it power, but we could just as well say having important posts, important functions, important responsibilities, which is what is usually called power. As we have pointed out before, the highest proof of virtue is to possess boundless power without abusing it.

And power is the ability to do good things for others. It takes tremendous discipline to control the influence, the power you have over other people’s lives. Of course, the exercise of power or authority is necessary in any society. Some people, by the nature of the functions that they perform in society, will have to exercise authority or power over the rest of us.

This is the way life is. But this is not an open ticket to do whatever one wants or desires. The exercise of power must be the constant practice of self-limitation and modesty. A society without clear authority structures is a disorganised one that is bound to implode. This therefore requires that those who are given authority to exercise public function do so in accordance with the established norms and laws as the case may be.

When those who have a duty to exercise authority begin failing to do so, or when they do, they do it capriciously, then there’s a fundamental problem. That society stands in grave danger, and everything must be done to stop that kind of decline into anarchy. Power being what it is, will always be a contested area. There are those who would like to see the flow of public authority benefiting them regardless of what principles or public good is damaged in the process.

It is this contest that requires certain exercise of power to be protected from contamination or being hijacked. Indeed, if public authority is not maintained for the purpose of benefiting the whole of society, it is only a question of time before those who feel left out decide to revolt. And moreover, in a democracy, public offices are created to serve the people and to proceed in all cases from the interests of the people and not from one’s self-interest or from the interests of a small group.

Judges and the judiciary in general exercise a lot of power and authority over all of us. The power which they possess is meant to be exercised for the benefit of the whole of society regardless of who is affected by their decision.

The exercise of judicial power is not expected to be pleasant or well accepted by everybody all the time. In fact, in the context of a democracy, it is widely accepted that the exercise of independent and effective judicial authority is always threatened by the tendency of the executive and the politicians who constitute it to try and influence its decisions.

For this reason, well-functioning democracies strive to find ways of increasing the independence of the judiciary. This is meant to allow the judiciary to perform its watchdog function over society without fear of repercussions from the executive. In our country, all our judges are appointees of the executive and other politicians working with them.

And it is these same people who can promote or remove them. It therefore requires a lot of moral courage and conviction to ignore the interests of these same people and serve the masses of our people. And we know that moral courage and character go hand in hand.

A man of real character is consistently courageous, being imbued with a basic integrity and a firm sense of principle. It is important to have a judiciary that is consistently independent and capable of engendering public confidence. One of the important devices that is used to help judiciaries to be independent and to perform fearlessly is their security of tenure.

The security of tenure of judges means that they are in those jobs until retirement age or they misconduct themselves in such a way that a public enquiry finds them wanting. Put another way, it means that although judges are appointed by the President, they cannot be fired by him.

So that, they have no reason to perform their function with timidity and a fear of losing their jobs. This is the protection that society affords them so that they in turn can protect society from those who want to abuse it. But when we look at our judiciary, we are sometimes left wondering whether the security of tenure that they enjoy is being used to protect our people to the full.

Is it being used to develop the independence of the judiciary and its members? Are there things that are undermining this judiciary and its ability to function independently? If there are, what are these? This independence can be undermined by both the politicians who appoint and promote the judges and the judges themselves.

If what this country witnessed with former chief justice Matthew Ngulube is anything to go by, it would seem that judges can find themselves in very compromised positions which may force them to abdicate their responsibilities.

And this being the case, it’s also possible that judges who are compromised can increasingly become overbearing on their colleagues and those they may supervise – forcing them to act in the interests of their compromisers. In this case, the judiciary’s independence is threatened by both external and internal forces.

What this means is that those who are compromised can start pushing their colleagues to deliver judgments that please their compromisers. When this happens, an individual judge is no longer able to act independently and deliver judgments that truly reflect his or her own understanding of the law and the facts of the case at hand.

These are pressures that a judiciary is likely to have unless deliberate measures are employed to ensure that it is independent. In the absence of that, any country may wake up and find that it has no judiciary worth the name. We should also be mindful that the job of a judge is not an easy one.

It is a lonely job. Those who accept this job, accept a very demanding duty from the public. In accepting that job, they say certain things about themselves.

One of the obvious things is that they do not abhor a solitary existence. A judge should not be found in pubs socialising with all sorts of characters and analysing public issues because it might well be that he is asked to determine issues that he was discussing in a pub.

It is even worse when a judge starts discussing cases, including his own. There are many things about our judiciary that our people are not discussing or questioning simply out of politeness, respect or even fear. But this is not a basis on which to build such an important institution.

And from what we are saying, it is clear that the independence of the judiciary and its effectiveness is dependent on the quality of its members and the decisions that they make. In other words, like any other institution in our society today, they will have to earn their respect through their own conduct and the decisions they make.

It is important that they use the security of tenure that they enjoy to make good decisions and develop a strong culture of scholarship and legal analysis. Failing to do this opens the judiciary to attack and ridicule, thereby diminishing its influence for good in our country. In a period of about a year, the judiciary has made two important decisions that have gone horribly wrong.

Our people have not forgotten the way that Jones Chinyama, a very senior magistrate and now a deputy registrar of the High Court, made a decision that was clearly tailored to save Frederick Chiluba. We have not forgotten that magistrate Chinyama convicted Faustin Kabwe and Aaron Chungu - Chiluba’s accomplices – for failing to account for money suspected to have been illegally obtained, and yet went on to acquit Chiluba.

This decision was simply wrong and showed that to think is easy; to act is hard, and that the hardest thing in the world is to act in accordance with your thinking. In that case, Chinyama’s thinking on most points was very correct – but that is the easy thing we are talking about. But when it came to making a decision, his judgment was not in accordance with his thinking. Why? And now we see judge Evans Hamaundu doing the same thing.

His thinking about the law of registering judgments is correct as can be seen from his previous decision. But when it came to Chiluba, he failed to act in accordance with his thinking. Why? The judiciary must do more to stop undermining its own independence and credibility in the eyes of our people.

Labels: JUDICIARY

posted by MrK @ 5:16 AM