A disgraced judiciary

A disgraced judiciary
By The Post
Wed 29 Sep. 2010, 04:00 CAT

The observations on the lack of independence of our judiciary made by Lusaka Archbishop Telesphore Mpundu deserve careful reflection from all of us. The judiciary is a very important institution of the state. Its ability to function properly determines whether we have a functioning democracy or a banana republic. A judiciary which is not independent from the executive’s excessive influence is a recipe for disaster. This is why all of us need to calmly reflect on the many criticisms that are being made against the judiciary. We all know that criticism is not something to be enjoyed but it is necessary.

This is something that we have always said in relation to the judiciary. When people from different walks of life begin to comment about an issue incessantly, those with the ability to do something about it would do well to listen very carefully. Being overly sensitive or cynical may serve as a short-term strategy but this is certainly not sustainable. The leaders and members of the judiciary should begin to ask themselves very simple but deep questions. Some of the questions that they need to honestly ask themselves are: why are people so unhappy with the judiciary? Is this criticism justified or is unjustified? And what is it that is earning the judiciary this disdain and public criticism? Is it possible that the judiciary is not doing anything good?

We say this because it is not possible that everything that the judiciary is doing is wrong. We have no doubt that the judiciary does a lot of good on a day to day basis. But there must be some serious lapses of judgment, which are significant enough to make our people so unhappy with the judiciary. In this country, we do not have a culture of disrespect for the courts. If anything, anyone who is associated with the judicial system, including ordinary lawyers, enjoy significant levels of respect and prestige. With this sort of background, something must have gone very wrong for our people to change their feelings and views towards the judiciary. It is not a question of the good that they do on a day to day basis that is of concern to our people; it is the deliberate wrongs that have injured many of our people. Our people expect the judiciary to be their last line of defence. When all else fails, the judiciary is expected to defend the interests of our people against the vulgar interests of some vultures, hyenas, jackals and all sorts of political scavengers.

It is on this score where the judiciary seems to have failed our people. It is at the point of defending the rights of our people against political interests that go contrary to public good and indeed the law. Most of our people want to see a brave judiciary that is going to implement the law without fear or regard to the position of the offender. They expect to have a judiciary that is going to strike fear in the minds of their elected officials because they know that if they break the law and abuse their offices, the courts will bring them to account regardless of who they are. But this does not seem to be the case.

Justice, which is supposed to be blind to the station or position of its recipient is now a selective affair that afflicts the poor and defends and vindicates criminals as long as they are politically powerful, they control government and other state institutions, including the judiciary itself. It is true, as Archbishop Mpundu has observed, there are serious structural deficiencies in our constitutional arrangements that make it difficult for our judiciary to be independent. But there are no deficiencies in our constitutional arrangements that cannot be surmounted by integrity and a determination to do the right thing. We don’t want to underplay the pressures that the judiciary must face from an overbearing executive, but still we insist that integrity can defeat even the most overbearing politician.

We do not think that our judiciary has ever been so diminished in its standing, in the 46 years of our independence, as it is now. And the way that Frederick Chiluba’s corruption matters have been handled has left the credibility of the judiciary in tatters. What is worse is that there does not seem to be a recognition in the judiciary that there is something wrong with the way that the Chiluba matters have been handled. It is surprising that in the wake of such a disastrous involvement with Chiluba, the judiciary expects our people to respect it. We have pointed out before that the corruption that Chiluba engaged in involved the judiciary at its highest levels. The judiciary’s failure to recognise that its credibility is mortally wounded demonstrates a pathetic detachment from reality which, throughout history, has rendered institutions irrelevant to the people. Well-meaning public servants such as the judiciary should be concerned about being irrelevant to the people when it matters most.

But this is something that our judiciary seems to have mastered. They have become good at being irrelevant when it matters to our people. They are comfortable with embarrassing themselves and disappointing our people on issues that are in black and white. To this day, we do not understand how a self-respecting judge can ignore his own precedent to save a criminal. This is what judge Evans Hamaundu did. He bent over backwards to breaking point to accommodate a thief. Today, the name of judge Hamaundu is synonymous with disgrace to the judiciary. It is not a name one can easily mention. Even the owner of the name himself must feel some shame mentioning his own name in public because it is not a name that is associated with honour and integrity.

The same thing applies to that magistrate, we mean Jones Chinyama, who acquitted Chiluba in the most questionable of circumstances. And in all this, it is not difficult for our people to see that the independence of our judges and magistrates is threatened not only from outside but is also facing internal challenges within the judiciary itself. There appears to be some connivance, collusion or even overbearing supervision within the judiciary itself that is making generally intelligent judicial officers make embarrassing decisions that they know to be wrong. Judicial officers are supposed to enjoy the highest levels of independence both internally, that is within the judiciary, and should be insulated from interference from outside. But this does not appear to be the case. There is no magistrate or judge who should be told by any other person what judgment to make. Their administrative supervision should not extend to being told, or being put in a position where they feel that a certain line should be taken or decision made. But this seems to be what is happening in our judiciary today, for which those responsible should be made to answer in one way or another.

If the judiciary can fail to allow internal independence, what hope is there that such a judiciary will survive the excessive and overbearing overtures of the executive? If the judiciary is truly interested in being independent, it must be seen to be exercising its own independence. It must respect its own judicial officers and expect them to function independently. In other words, no one will fight for the independence of the judiciary that does not even try to be independent itself. It is shocking that a body that has so much power that it can send a helpless lawyer to jail for an opinion that he may or may not have expressed to his client in the privacy of his office, is now trying to pretend that they need protection from other people. Who is going to protect the judiciary if they can’t protect themselves?

And protection from who? And who should offer this protection? Is it Rupiah Banda or Chiluba who seem to be the greatest recipients of its favourable considerations? The judiciary is supposed to be the ultimate protector of our people. If it cannot protect itself from interference by the executive, of what use is it to our people? And why should our people be expected to protect this judiciary in its current state? What is in it for our people? This judiciary can only be protected by integrity. A judiciary that is transparent and operates on the basis of uncompromising integrity does not need protection from anyone because its dignity and integrity are its protection. Those who attack such a judiciary will be ashamed because it has nothing to hide and no wrongs to defend. We are not saying that the judiciary cannot make mistakes or poor judgments. As Archbishop Mpundu has observed, they are not angels. And many of our people of goodwill have no trouble accommodating the honest mistakes of sincere public servants. And such mistakes can be distinguished from deliberate schemes that deny the people justice.

The judiciary needs to rise to the challenge of its calling. To try and portray itself as a victim of unjustified attacks is beneath the dignity of a people’s defender. If they have done nothing wrong, they have no reason to be ashamed. But many of our people know that the judiciary has robbed them of justice. And any doubts that many of our people may have had about the independence of the judiciary or the lack of it have now been demonstrated. A judiciary that does not respect its own principles for decision making should not expect the respect of our people.