Maravi

Our judiciary and abuses of power

COMMENT - It is clear that there is something wrong with the judiciary, and their independence from the executive. Whether it is a judge 'getting lost' so Fred M'membe can spend a weekend in jail, or convicting George Mpombo on criminal charges for a bounced check, or acquitting Frederick Chiluba, the separation of the powers of state was something that should have been dealt with in the Constitution, but wasn't.

Our judiciary and abuses of power
By Editor
Tue 17 Aug. 2010, 04:01 CAT

Our judiciary is becoming increasingly associated with unnecessary controversy.
Some of these may be said to be unjustified, but since it is what people feel about our judiciary – what people think – it must be appreciated as a deeply felt dislike about the conduct of our judiciary, rather than a momentary irritation with one or two decisions it has made.

We cannot dismiss these feelings and thoughts as mere false perception about the doings of our judiciary. People strongly feel this is the worst our judiciary has been since independence in terms of impartiality when it comes to dealing with matters in which the president and his allies have an interest.

We continue to reflect on the role that the judiciary is today playing in our country.

We ask ourselves repeatedly: whose interests is our judiciary today primarily serving? Are they serving the people or those running the executive and their allies? Is this a judiciary of the people, by the people, for the people?

This is an important question. Our people need to feel that those men and women who occupy those important offices are there to serve the interests of the state, not a transitory government.

If our people feel, as they now do, that the judiciary is serving the interests of the government of the day and more specifically of the president of the day, as seems to be the case, a crisis of historic proportions is looming.

Before we know what is happening, the judiciary is going to become an irrelevant institution incapable of commanding the respect of any sane citizen, including those benefiting from their decisions.

This is not far-fetched, and should cause our dear brothers and sisters who occupy those important positions to stop and think.

The judiciary is a pivotal institution that has played a key moderating role on the potential for abuse of power that successive governments have had.

What is worrying now is that the judiciary in a multi-party dispensation seems more timid and more compromised than what we saw in the one party state.

Indeed, if the judiciary of 1990-1991 behaved in the way that the current judiciary seems to be behaving, we doubt that we could have had a peaceful transition of power.

We say this because we should not forget that the judiciary played a key role in tempering down the ferocity of the one party state hegemony over power and state institutions that UNIP had and the temptation for abuse of that power.

The MMD ran to our courts for protection of fundamental rights and freedoms on a number of occasions during that struggle. The courts were bold enough to rule justly and give the people what they deserved.

When UNIP tried to tamper with the people’s right to gather, appropriate orders were given which allowed people to express their views.

When the state broadcaster, ZNBC, misbehaved in their coverage of the events surrounding that momentous move for change, again the courts were on hand to protect the people and their interests.

We cannot ignore the rich jurisprudence that our courts developed to regulate the then government’s use of detention as a means of asserting its authority when threatened.

Again, the courts were not timid, and people of all sorts of political beliefs could turn to the courts to challenge their incarceration with the belief that justice would be done.

Even in the more serious scenario of treason, accused people could expect that their courts were capable of freeing them if they were truly innocent or indeed when there was no evidence to connect them.

This happened in the 1980 coup attempt where, prominent amongst those who were acquitted, was Heritage Party president Brig Gen Godfrey Miyanda. There is no doubt that the government of the day wanted Brig Gen Miyanda convicted. But he was acquitted. We wonder whether this is possible today.

Today, our judiciary seems to be in the forefront of promoting and defending injustice.

This is a judiciary that is today participating directly or indirectly in the most ruthless of injustices.

Look at the way they have dealt with the contempt case involving Lusaka lawyer Nsuka Sambo.

If that is the way our courts are going to enforce their demand for respect, then something is very wrong.

It is amazing that the fraternity of lawyers has kept quiet when a manifest injustice has been done.

Are people going to be imprisoned for three years for their thoughts and private opinions? Who will survive this unlimited use of judicial power?

Our courts are supposed to be the bastions of justice and compassion. But what we see is injustice without compassion from them. We are grateful that we have had the opportunity to learn a little law which enables us to analyse, at our level, what has happened.

Sambo never went before any court of law and pronounced any insult or disrespect for the court. But the Supreme Court, accepting the evidence of his client, set itself up as a court of first instance and summarily convicted Sambo and sent him to jail for three years.

Contrast this with what happened in the case of Sebastian Size Zulu, who today has even been honoured with the rank and status of State Counsel. The same court laid down the rules for handling contempt. It said that a court cannot deal summarily with contempt, unless that contempt was committed in its face.

The court also said the offended court must be careful not to overstep the norms of justice. But this is exactly what has happened in the case of Sambo.

This poor man was arraigned before the Supreme Court, tried and convicted there for a contempt that he is alleged to have committed in his office. Where is Sambo going to appeal to if the Supreme Court constitutes itself as a court of first instance and tries him summarily?

Our people are seeing these things, these abuses of power and wondering where we are headed.

Today, it is not only the executive that is abusing its power, but also the institution that is supposed to be the last man in the defence of our people seems to have vacated its post. This is what the judiciary is doing.

Trying to insulate itself against criticism will not improve its image nor prop up its prestige which is necessary for it to carry out the function the Constitution requires it to.

As Queen Elizabeth said in London on November 24, 1992, “No section of the community has all the virtues, neither does any have all the vices. I am quite sure that most people try to do their jobs as best as they can, even if the result is not always entirely successful. He who has never failed to reach perfection has a right to be the harshest critic. There can be no doubt, of course, that criticism is good for people and institutions that are part of public life. No institution – city, monarchy, whatever – should expect to be free from the scrutiny of those who give it their loyalty and support, not to mention those who don’t”.

We agree with Queen Elizabeth that no institution should expect to be above criticism. And in our context, we don’t think that any institution in this country should position itself above the criticism of our people.

Our people should have the right to criticise and express their frustrations without being ‘sambod’ in the same way that poor Sambo has been sent to jail.

The judiciary must not place itself above criticism and above society. It is not populated by saints.

We have the case of Matthew Ngulube to show that even the best legal brains, the best judges, can fall to corruption and abuse. What will happen if our people drop their guard and let those running our judiciary do as they please, answering only to the dictates of those in power and not to the people?

People know what is going on. People know when the judiciary has done the right thing and when it has done the wrong thing. We should not forget that recently, the public, in response to a Transparency International study, said they were not confident that our judiciary is beyond corruption, which is something that our judiciary should be very concerned with.

We hope that our judiciary has not reached the stage where, like the executive, they don’t care what the people feel and think about them. Those in the executive don’t care about what the people think or say about them in terms of corruption and abuse of power.

Our people have the right to express their opinion. And every day, they are forming their opinions about each and every adjudicator in this country.

There is a growing feeling among many of our people that justice in this country is increasingly favouring those who have means. The poor are being sent to jail for the slightest infractions of the law and yet the rich and politically powerful get away with plunder.

Our people have seen the amount of properties and other assets that Frederick Chiluba and his tandem of thieves acquired using stolen public funds when they were in power.

We have shown pictures of some of these properties. We have covered many court cases that talked about them. Who is going to convince our people that these thieves should be allowed to retain their ill-gotten wealth? What is their judiciary doing about this? In the eyes of many of our people, the judiciary, by some of its decisions, seems to be protecting those who have stolen from our people and are supported by those in power, by the President.

We cannot run away from this perception, and if we do, we only cheat ourselves. In the eyes of many of our people, the judiciary has joined Rupiah in protecting the plunderers, the thieves and their loot.

This perception cannot be ignored. Where are our people going to turn to when those they have elected to represent them steal from them? The judiciary needs to do more to win back the confidence of our people.

It must stop being insular and take its rightful place as a check on the excesses of the executive.

Labels: CORRUPTION, COURTS, FREDERICK CHILUBA, JUDICIARY

posted by MrK @ 7:07 AM