Maravi

Heed justice Sakala’s call

Heed justice Sakala’s call
By The Post
Fri 01 July 2011, 04:00 CAT

There is no better place to settle electoral disputes than our courts of law. But so far, the courts cannot be said to have been a good place for settling election disputes, especially those involving the election of the president.

The inordinate delays in settling presidential election petitions have rendered our courts of law irrelevant in the settlement of electoral disputes involving the election of the president. These delays have made presidential election petitions academic.

It is either the courts find a quicker way of disposing of such petitions or the law is changed to ensure a speedy and fair settlement of presidential election petitions. In our system, the president is sworn in immediately after being announced winner by the Electoral Commission of Zambia. This puts the petitioner in a very disadvantaged legal position trying to undo what has already been done and trying to challenge someone who now, in some way, controls the appointments, promotions and remuneration of judges.

And this aside, experience has shown that by the time the matter is disposed of, the president whose election is being challenged may be way into his third or fourth year of the five-year term of office.

And somehow, this must have had a really huge bearing on our courts to allow the one who has been sworn in to remain president even if there are irregularities. Indeed, irregularities have been found in our election of the president. And our current Chief Justice, Ernest Sakala, in one presidential election petition against the election of Frederick Chiluba as president, disagreed with his fellow judges in the Supreme Court and had his own judgment finding Chiluba to have been irregularly elected. This was a very brave act on his part. But how many such brave acts against a sitting president have we seen since then, even from justice Sakala himself?

We agree with justice Sakala’s call on our judges countrywide to expeditiously deal with cases that will arise in their courts during and after this year’s elections. The political stability of our country will depend to a large extent on how well the judiciary handles election petitions. So far, our judiciary has not done very well. What has saved us is the restraint of our people and of our leaders.

In 2001, this country could have been in flames if Anderson Mazoka and others had not restrained their supporters from taking the law into their own hands. We all know that the election petition that followed from those elections was not expeditiously and efficiently handled by our courts of law.

The 2001 elections were clearly manipulated to give Levy Mwanawasa an undeserved electoral victory. And this came out in the testimonies of those who had managed those elections and now had fallen out with Levy. They told the court what they did to make Levy win. We had testimonies from Vernon Mwaanga, Xavier Chungu, who was intelligence chief at that time, among others. All these people came to show the court how they had manipulated things to ensure Levy’s victory. But the courts retained Levy as president.

Again in 2006, it took a lot of persuasion from Michael Sata to stop his supporters from taking the law into their own hands, challenging the re-election of Levy. On presidential elections, our people have lost hope and confidence in the ability of our judiciary to adjudicate such electoral disputes as and when they arise. Should we have the ruling party win by a small percentage, say of two per cent like it was in 2001, we may be headed for serious trouble, for veritable chaos. We say this because both our leaders and their supporters now don’t seem to believe that our courts of law can remove from State House, on account of electoral irregularities, a president who has already been sworn in by the Chief Justice.

Truly, justice Sakala is right when he says, “At the centre of these unfolding events will be our institution, the judiciary, whose integrity we have to protect if the legitimacy of our decisions is to be preserved and preserved it must be; if we are to remain relevant to the public that we serve”.

Justice Sakala further adds, “In carrying out these responsibilities, stakeholders place immense trust in the courts and their expectations are high.” Yes, the expectations of our people are high, but we don’t think our people still place immense trust in our courts. Our courts have in a very big way lost public trust because of being seen to be partial, incompetent and inefficient. The recent political cases against the late Frederick Chiluba have clearly demonstrated that our courts seriously lack independence from those occupying State House. And justice Sakala is right when he says, “There is no justice if the knowledge of the law is misapplied.” And this was the case in the matters involving Chiluba both in the magistrates’ court and the High Court. The acquittal of Chiluba in the magistrates’ court fits perfectly in what justice Sakala is saying. Similarly, the refusal by the High Court to register the London High Court judgment against Chiluba was another case of there being no justice “if the knowledge of the law is misapplied”. Here the knowledge of the law was clearly misapplied by the High Court judge hearing the matter. We agree with justice Sakala when he says that “an adjudicator has no independence in misdirecting himself or herself on points of law and an adjudicator has no independence in putting the judiciary into disrepute and an adjudicator has no independence to make mistakes or make wrong orders”. Again, we are seeing this in the civil cases where Chiluba was claiming, through some known agents, the return of properties seized by the state that he had bought with stolen public funds. The behaviour of our courts in these matters puts the judiciary into disrepute and shows a clear lack of independence on the part of our judiciary.

Justice Sakala is not saying all these things from without. These are matters that he knows very well have been happening, are happening in our judiciary. Justice Sakala is not trying to correct an imaginary problem. The problem is real and has gotten out of hand. On this point Justice Sakala deserves the support of all of us to heal what has become a very dangerous disease in our judiciary.

Genuine efforts to correct that which has gone wrong in our judiciary will deserve all our support. And all well-meaning Zambians should support justice Sakala when he puts his words into action, to match his words with deeds. This is a brave judge and we find it difficult to understand how the judiciary has degenerated and sunk so low under his leadership and supervision. Something has gone seriously wrong that the nation needs to understand. If the judiciary does not self-correct, there will be no other option but to politically correct it. This is a very important institution of the state that should never be allowed to sink this low because it endangers our political, social and economic stability – it threatens all the gains we have made as a nation, politically and otherwise. We need to see some serious changes in the operations of our judiciary.

Labels: ECZ, ERNEST SAKALA

posted by MrK @ 4:01 AM