Maravi

Public concerns about the Judiciary

Public concerns about the Judiciary
By The Post
Mon 24 Jan. 2011, 04:00 CAT

Our Judiciary is increasingly being perceived by the Zambian people as seriously lacking independence from the executive.

It may be said that this perception is unjustified, but since it is what people think, it must be appreciated as a deeply felt distaste, rather than a momentary irritation. It cannot be dismissed as a mere false perception. Our Judiciary today is thought to favour those in government, those in the ruling party and their associates.

Corruption has disgraced the Judiciary in the eyes of the public. Their perception is of a corrupt Judiciary that has surrendered itself to the Executive. Such distasteful perceptions can injure and damage our Judiciary for a long time. We should face these issues head-on and deal with them.

The Judiciary was disgraced over Matthew Ngulube’s dealings with Frederick Chiluba. Ngulube, as Chief Justice, was getting money from Chiluba that was not his due. He was forced to resign over corruption.

And over the last one year, the Zambian people have witnessed corruption cases involving Chiluba and his associates being dealt with in the most questionable of ways – ways that have left many Zambians dismayed and disheartened with the performance of the Judiciary. The way these cases have been handled has profoundly disappointed and disgusted many Zambians. And who should take responsibility for all this?

As for Rupiah Banda, all this doesn’t seem to bother him because he is guided by the wish to have his political opponents or enemies destroyed with the help of the Judiciary; and by the determination to be re-elected. This is not a recipe for governing well.

With an intimidated and compromised Judiciary that seriously lacks autonomy or independence, Rupiah is able to do as he pleases. There are no checks and balances on him, on his Executive and indeed on his ruling party.

All the political power is today concentrated in Rupiah’s hands. There is no serious separation of powers between the Executive on the one hand and the Judiciary and Legislature on the other. As to the separation of the Judiciary from the Executive, so long as judges are appointed, paid, promoted or even dismissed by persons or bodies controlled directly or indirectly by the Executive, our Judiciary’s independence may be more theoretical than real.

And as for the separation of our Legislature from the Executive, this also is equally illusory because legislation in this country is generally a product of the Executive’s initiatives and policies.

But there is a serious danger with running our country on this basis where all the key institutions of the state are under the control of the Executive. And this reminds us of former United States president James Madison’s warning: “The accumulation of all powers, legislative, executive and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”

Indeed, one of the most important American contributions to democratic practice has been the development of a system of checks and balances to ensure that political power is dispersed and decentralised. It is a system founded on the deeply held belief that government is best when its potential for abuse is curbed, and when it is held as close to the people as possible. Checks and balances refer to the separation of powers to ensure that political power should not be concentrated within a single branch of government. The separation of powers provides an important safeguard against the potential abuse of power by government – an issue that every democracy must confront.

And without a strong separation of powers, we will never have meaningful independence of the Judiciary in this country. But the independence of the Judiciary is not something that we can gloss over because it is an essential pillar supporting the rule of law. It is not enough to say that the courts should follow and apply the laws faithfully and equally to all. One must, in addition, demand that there should be no dispensing power vested in the Executive or other body which would relieve a person from the duties and processes of the law.

As we have stated before, there is hardly a more powerful weapon which can be abused in the hands of a government than that of initiating or discontinuing prosecutions. Those in power have abused the prosecution process by harassing opponents of their regime through unjustifiable prosecutions, or by exempting their own supporters from liability for illegal acts. The Judiciary, at whatever level, may find itself confronting these abuses, and may find itself subjected to enormous pressure to accept them. Often, if the process is legal but unfair, there is little that a court can do.

But things appear to be worse than this in our country today. The whole judicial process seems to seriously lack independence. First, those who administer our criminal justice system are direct appointees of the President and act on his behalf – the President is their commander-in-chief. They administer justice according to his definition of things, they do things his way. If the President wants you to be arrested and prosecuted for any offence, so shall it be. Again, things don’t end here. If the President wants you to be acquitted, so shall it be. The Executive wanted Chiluba to be acquitted, and he was acquitted. Rupiah was even calling on the Zambian people to accept Chiluba’s acquittal before even the court finished reading the judgment acquitting him and has been all over the place asking the Zambian people to accept his acquittal.

Are these acts of Rupiah and the Judiciary expected to increase public confidence in our Judiciary and our entire judicial process and make us believe that it is independent?

Not very long ago, we had before our courts of law a matter in which the state sought to register and enforce the London High Court judgment against Chiluba and his corrupt associates. It was clear that those who procured his acquittal were opposed to him paying to the Zambian people over US $45 million he had stolen. And accordingly, efforts to register this judgment failed. No attempt was made whatsoever to appeal that clearly poor decision. Things looked pre-arranged or pre-determined. Since Rupiah decided to ensure that none of his corrupt friends goes to jail or loses any of their loot, the results have been according to his wishes. And no appeal is ever made in these cases. Can this be said to be coincidence? Is this the way to promote the independence or autonomy of the judiciary? Are the Zambian people expected to increase their confidence in their Judiciary under these circumstances?

Clearly, the perceptions of our Judiciary being compromised, lacking independence or autonomy from the Executive are not without basis; are not malicious or misguided. They have a basis. It is their own acts that are destroying the integrity and credibility of our Judiciary. Today, it is not surprising that it is only the Executive and its associates that are claiming that the Judiciary is doing well and is acting independently. Many independent-minded people are dismayed, disheartened and disappointed in the way the Judiciary is conducting itself. These concerns need to be addressed. And they will not be cleared away by denouncing those who analyse and question the conduct of the Judiciary. Cheap public relations statements from the Judiciary that are full of lies, half-truths, malice, threats and intimidating language will not do. What is required is an honest and humble response to these issues. And we have many good men and women in our Judiciary who can successfully undertake this duty because some of the problems our Judiciary faces today are structural. But also there are others which are due to human failure. All these can be addressed if the good men and women in our Judiciary are empowered to act in public interest.

Labels: JUDICIARY, SAM MULAFULAFU

posted by MrK @ 12:25 PM