Independence of our judiciary and the rule of law

Independence of our judiciary and the rule of law
By The Post
Sun 22 May 2011, 04:00 CAT

“The non-observance of the Constitution can ruin the governance setup of a country as it is key to democracy, human rights and the rule of law…Government attaches importance to constitutionalism and fully believes in the notion that it is key to democracy, human rights and rule of law…Those in the political circles are not free to do anything they please in any manner they choose.

They are bound to observe both limitations on power and the procedures which are set out in the supreme, constitutional law of the country. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

In short, our government is not at large to do as it pleases; but is limited by the supreme law of the land, the constitution…Lord Binham once pointed out the essential elements of the rule of law as being that the law must be accessible, intelligently clear and predictable…that ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

The law must afford adequate protection of fundamental human rights. We in government believe that an independent judiciary is fundamental to the rule of law, but that it needs to be enhanced by effective, transparent, ethical and accountable governance.

The many challenges of our various judiciaries are brought about by the interlocking state organs and their functions.” This is what George Kunda said in a speech read on his behalf by local government and housing minister Dr Brian Chituwo at the Southern African Chief Justices Forum’s second Judges Colloquium held in Livingstone.

“Challenges continue to plague and compromise the concept of judicial independence. The aim of this second colloquium is to provide a platform at which a critical review of the current state of judicial independence in the central, eastern and southern African regions as an essential element that can be used to foster democracy, human rights and the rule of law.” This was a remark by the Chief Justice of the Republic of Zambia, Ernest Sakala, at the same colloquium.

And International Commission of Jurists (ICJ) deputy secretary general Jan Borgen told the colloquium that ICJ’s vision was to have lawyers, judges and prosecutors enlightened, courageous and free to carry out their professional duties by regarding the rule of law as indispensable to safeguard and advance all human rights.

Borgen added: “Not surprisingly, judicial independence is associated with the ideas of democracy, social justice and the rule of law. Independence is not only desirable but necessary for the realization of a just society.”

These are wonderful speeches. Should we treat these as simply good political speeches? We know from experience that things like these in this country have not worked well in practice as they have done in speeches.

Our lesson is that we should never forget these good things they are talking about to survive, thrive and do well have to live in our hearts; when they die there, no constitution, no law, no court can save them.

After all, we know that the independence of the judiciary constitutes the main raison d’etre of any serious meeting of judges, lawyers and prosecutors. By virtue of this, it is always on the agenda. It is central to the administration of fair and equal justice in a democratic society.

As such, it attracts undue amount of lofty but empty rhetoric about the defence of democratic values and political principle, when what judges themselves desire, as do those subject to the laws, is a critical but helpful examination of the practical ways in which such independence may be guaranteed, or at least promoted, in the day to day administration of justice.

As we have stated before in this same column, the idea of independence of the judiciary as it now presents itself is a modern one. If we go back in history, we shall generally find that although the notion that justice should be fairly administered may well have been accepted, those who adjudicated or settled cases were not expected to be in any real sense “independent”.

Thus in medieval England, from whose common law we derive our own national legal system, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices.

As such, not only was there no separation of powers, but those who judged were agents of those who ruled. The same observations apply to societies with customary legal systems and to theocratic societies such as those where Islam was the state religion, and judges had to conform to the dictates of the sacred law, as expressed in the Sharia and Sunna. We can today say that this is not different in our country.

Rupiah Banda and George get the judgments they want from our courts. In a word, justice in this country is a presidential prerogative, which Rupiah, with the assistance of George, carries out through his appointed officials or justices.

This is why today there is an admission that the independence of our judiciary needs critical review as it is an essential element that can be used to foster democracy, human rights and the rule of law.

If there was independence of the judiciary in this country, Frederick Chiluba would be in jail today – magistrate Jones Chinyama would have not acquitted him and Director of Public Prosecutions Chalwe Mchenga would have not withdrawn the appeal against that highly questionable acquittal.

If our judiciary was reasonably independent, the London High Court judgment against Chiluba would have been registered in this country and enforced against Chiluba. And that highly questionable High Court judgment that allowed Chiluba to keep his loot wouldn’t be there and Attorney General Abyudi Shonga would have appealed that highly questionable High Court decision.

As we have stated before, as long as judges are appointed, paid, promoted or dismissed by persons or bodies controlled directly or indirectly by the president or the executive, the judiciary’s independence in our country will continue to remain more theoretical than real.

And truly as we have seen over the last close to three years of Rupiah’s rule, independence of the judiciary is an essential pillar supporting the rule of law and without it, there will be no meaningful rule of law to talk about in this country. It is not enough to say that the courts shall follow and apply the law faithfully and equally to all.

One must in addition demand that there should be no dispensing power vested in the president or the executive or other body which would relieve a person from the duties and processes of the law. We have seen that there is hardly a more powerful weapon which can be abused in the hands of a corrupt or abusive government than that of initiating and discontinuing prosecutions.

We have seen how Rupiah is abusing the prosecution process to harass political opponents through unjustifiable prosecutions and by exempting his friends from liability for criminal acts. The Chiluba story tells one side of this very well. And the prosecutions of George Mpombo tell the other side of the story equally well.

And it is clear from all these experiences that the judiciary at whatever level may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do, especially if that court lacks courage and freedom to carry its professional duties regarding the rule of law as indispensable to safeguard and advance all human rights.

And in our situation, this is compounded by human failure. It is not in dispute that some of our judicial officers are corrupt. It cannot be denied that some of our magistrates and judges are corrupt.

It can also not be denied that there is no honest Director of Public Prosecutions who could have done what Mchenga did, who could have abused that office in the way he has done. Abuse of office is corruption. In short, what we are saying is Mchenga is corrupt.

And no one can also deny the fact that many officers in our police service are corrupt. And the sum total of all this is a compromised and corrupted judicial process. What justice can one expect from such a process?

We know that it’s very difficult to deal with the corruption of magistrates and judges in this country because they highly protect themselves from any such attack or criticism with contempt proceedings. We saw how unfairly a senior lawyer, Nsuka Sambo, was dealt with, was sent to jail.

As long as this remains the situation, it will be very difficult to deal with corruption in our judicial process. The judiciary has not been spared the corruption that has permeated the executive and the legislature and all sectors of our society.

But while it is easy to talk about and expose the corruption in the executive arm of government, it is not so easy to do the same with that of the judiciary, and to some extent, that of the legislature.

We need to carry out serious reforms in our country. And reform of the judiciary is one of the most powerful anti-corruption measures. We have to meaningfully ensure the independence of our judiciary.

We also have to strengthen the nation’s capacity to deal with corrupt judges and magistrates and have them prosecuted. We have to increase transparency in the judiciary.
Over the last few years, it cannot be denied that our judiciary’s capacity to tackle corruption cases has been seriously called into question.

As for what George has said, it’s clearly a matter of political rhetoric. We say this because George has been in the forefront of trying to impose a constitution on the Zambian people tailored to suit his own desires. George has been in the forefront of undermining the independence of the judiciary.

Who doesn’t know how George has taken over the decision-making process at the office of the Director of Public Prosecutions by ensuring that a spineless and timid fellow of his choice is appointed to that office? Who doesn’t know how this government is appointing and promoting judges on the basis of patronage? George is behind all this.

And before George talks about exercising the powers conferred on ministers “in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”, George must explain how possible it was for him if he had acted in this way to spend over K200 billion on an arbitrary, ill-conceived constitution review process that was doomed to fail.

And before George starts talking about human rights, he should explain how his government failed to respect the human rights – the freedom of speech and expression, the freedom of assembly and the right to equal protection before the law – of all those people in Western Province who wanted to challenge the abrogation of the Barotse Agreement and were denied the right to hold rallies and express themselves, were shot at and killed without posing a threat to anyone’s life and in some way were denied fair trial.

We say this because you cannot say someone has got a fair trial when he is poor and he is taken more than 400 kilometres away from his hometown and has no means whatsoever to bring equally poor witnesses to such a distant place to defend him. Fair trial requires the accused to be availed all the possible means to defend himself.

Trying somebody in such a hostile environment, far away from his people and the terrain he knows and hold there in captivity on a charge that is generally bailable, cannot be said to be fair trial. These are the human rights violations George presides over.

So what human rights can George talk about? If anything, George has contributed greatly to the destruction of our judiciary and our entire judicial process and should one day be made to answer for all this.