Maravi

Derrick Fee has a point

Derrick Fee has a point
By The Post
Sat 11 Sep. 2010, 04:00 CAT

No democracy can flourish without the service of a fully functional and independent justice system. The European Union is right when it observes that a functioning, fair and accessible system of justice is the foundation of every truly democratic country.

As we have been advised, we must as a nation, ensure that the judiciary is politically independent and free from interference by the executive. It is true that it is only when the judiciary is free from political interference that its legitimacy in the eyes of the Zambian people is enhanced.

Truly as EU Head of delegation Derrick Fee has observed there is need to allow the judiciary to operate independently because it is imperative that it discards all political interference. Fee was right to stress that the development of any nation is based on an efficient justice system.

We hope that Rupiah Banda and those that work with him will take this advice to heart and reflect over it. It won’t help them to start attacking the EU over these well-intentioned comments.

What Fee has said merits very serious and sober reflection. The independence of the judiciary is very important. It is a subject that should be discussed and debated fully if our country is going to develop a well functioning justice system that safeguards our democracy and its governance system.

As we have indicated before making people fearful of the judiciary and stopping them from holding legitimate discussions on its failures, particularly, does not do anything to enhance the dignity and prestige of this institution. It does not also mean that since people are not able to talk about the judiciary then it is free.

Fee refers to a very important concept that the judiciary needs to reflect on very carefully. In calling for ensuring that the judiciary is independent from political interference, Fee identifies a benefit. He says that the independence of the judiciary enhances its legitimacy in the eyes of the Zambian people.

The concept of legitimacy implies that the people accept the determinations of the judiciary because they believe it as a fair and independent arbiter whose decisions can be trusted. Those decisions need not be liked, but if a judiciary has paid attention to its legitimacy and independence, the decisions will be accepted anyway.

This is the challenge that our judiciary has. It needs pay attention to its legitimacy. Our people need to feel that all the decisions that it makes are professionally conceived without any undue considerations.

We cannot, and should not deny that the image of our judiciary is badly dented. If we have to borrow from the reasoning of Fee, we could say that the legitimacy of the judiciary has not been enhanced by some of its decisions.

Sometimes we are tempted to think that the judiciary is so detached that they have lost the common touch that they require to be able to address the frustrations and expectations of common people. This is a dangerous development which does not inspire hope.

There is a perception that our judiciary is unprofessional when it deals with matters where those in power have an interest. It is not enough for the judiciary to simply say it is independent. It is also not enough for the judiciary to plug its ears to stop hearing what the people are saying and what they feel.

The fact that they stop hearing what the people are saying does not change the reality on the ground. The illegitimacy of the judiciary however caused should be a source of great concern. The judiciary must do everything to ensure that this problem is addressed. We cannot have a judiciary whose decisions are always questioned.

This does not serve anyone’s best interest. At one point or the other we may all need the services of an independent arbiter; yes we have to rely on the protection of an independent judiciary from the capricious and sometimes malicious abuse of power by those in authority. In this respect an independent judiciary guarantees the human rights of everyone without regard to the whims and wishes of those in power.

We have said before, but this bears repeating. The standing of the judiciary in this country was savaged by the scandal that got rid of the last Chief Justice, Matthew Ngulube. The damage that the scars of corruption left by Ngulube did to the judiciary have not been healed. It was in the context of politics that Ngulube messed himself up.

In trying to be close to Frederick Chiluba, Ngulube took bribes. This issue has damaged the legitimacy of the judiciary. The recent Chiluba decisions have done nothing to improve this situation.
There is a problem with our political system that needs to be addressed somehow. It is clear that there is no effective system of checks and balances that encompasses the President.

In other words the President, in our system, is above all the other organs of the state which are meant to maintain the balance of power. The judiciary is not truly independent of the President. Rupiah’s statement on Chiluba’s cases bears witness to that. Parliament is also not really able to control the President in any meaningful way. The President is virtually a law unto himself.

It is this concept of an all powerful President that militates against the independence of the judiciary. This problem is clearly manifested when cases in which the President has expressed an interest before the courts. One cannot help feeling that sometimes our courts engage in self-censorship to please the President.

This is what has happened in the case registration of the London High Court Judgement. It would appear that Judge Evans Hamaundu was so overwhelmed by the case he was handling that even forgot that his own decision which he had made earlier where established the principle that a foreign judgment such as the one obtain against Chiluba could be registered for enforcement in Zambia.

So confused was judge Hamaundu that he even ignored recent Supreme Court decisions that clearly acknowledge that UK judgments are registerable in Zambia. Such conduct does nothing to promote the legitimacy of the judiciary. On this score, we all have to acknowledge that Fee has a point: only a judiciary free of political interference can enhance its own legitimacy.

Labels: CORRUPTION, DEREK FEE, JUDICIARY, RUPIAH BANDA

posted by MrK @ 3:14 AM