Maravi

Elections and our courts of law

Elections and our courts of law
By The Post
Mon 08 Aug. 2011, 12:00 CAT

Our courts are once again the centre of activity as we approach next month’s presidential, parliamentary and local government elections. Political disputes – big and small – concerning the elections and the electoral process are being taken to our courts for resolution. This is not a small responsibility; it is a gigantic one – an extremely challenging responsibility.

We say this because the peace and stability in our country greatly depends on the decisions the women and men whom we have given the responsibility to adjudicate will make.

And the issue is not so much whether or not those who go to court will like or not like the decisions of the courts but whether or not they respect our judges as independent and impartial adjudicators. If our judges are seen and are believed to be independent and impartial adjudicators, their decisions – wrong or right – will be easy to accept and respect.

But if they are seen and believed to lack independence and impartiality, it will be very difficult for their decisions to be accepted and respected by all. And this is why most of our people have been campaigning for an independent and impartial judiciary – one that is not controlled or directed by those in power. Those in power, in our multiparty political dispensation, are also political competitors who today are finding themselves before our courts of law being challenged by those in the opposition or other stakeholders. A judiciary which is seen or believed to be controlled or directed by those in power will not have its decisions accepted and respected by all. Today, our judiciary is on trial because of the conduct of those in power towards it and indeed as a result of its own conduct.

Not very long ago, our judiciary made decisions concerning the corruption cases involving the late Frederick Chiluba which have left its standing in the eyes and minds of our people low. Last week, we carried a story in which Ben Mwila, a parliamentary candidate for the ruling MMD in Nchelenge, was telling the people of Luapula to give their votes to Rupiah Banda because he had freed Chiluba from his corruption cases and charges. This reinforces the general belief that the judiciary colluded with Rupiah to get Chiluba off the hook. The judgments in favour of Chiluba are believed to have been politically procured from the judiciary.

And statements from Mwila, Rupiah and many other senior MMD and government officials confirm that. This makes those who adjudicate matters or settle cases appear not to be in the real sense independent from those who rule or govern the country. This makes justice in this country start to appear like it is a prerogative of the rulers, which they carry out through the judges and judicial officers they appoint, they give jobs to or promote. As such, it is starting to appear like there is no separation of powers between our judiciary and the executive. And those who judge are now seen or believed to be agents of those who rule.

Clearly, independence of the judiciary is central to the administration of fair and equal justice in our country. And it is for this reason that it attracts an undue amount of lofty but empty rhetoric from politicians of all hues. That’s why even those who every evening wine and dine with judges, trying to influence every decision of theirs in all sorts of ways still claim to be committed to the independence of the judiciary and rattle rhetoric about the defence of democratic values and political principle, when what judges themselves may 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.

The independence of the judiciary is an essential pillar supporting the rule of law. It is not enough to say that the court should follow and apply the law faithfully and equally to all. One must in addition demand that there be no interference from those in power on the operations and decisions of the courts. It is clear to all that Rupiah’s government did interfere in the cases involving Chiluba. But nothing to date of a serious nature has been done by anyone, including the Law Association of Zambia to defend the rule of law in our country. Even the judiciary itself has done nothing, in a way of self-correction, about a matter that everyone is talking about as having been influenced by those in power? Why?

These are the issues that undermine the standing of the judiciary in the eyes and minds of our people. And if things continue like this, the judiciary will soon become irrelevant and people will take the law into their own hands like they have done in other parts of our continent. Where this happens, anarchy sets in. And this is why it is important for the rule of law to be defended at all costs because where the rule of law is lost, the cost is too high for society to pay. Where there is equality before the law, anarchy is much easier to deal with and rarely surfaces. This is why the right to equality before the law or equal protection of the law is so fundamental to any society that wants to remain peaceful and stable. Those who adjudicate should be required to deal evenly and equally with all. No one is above the law, which is, after all, the creation of the people, not something imposed upon them. There should be no timidity when dealing with matters involving those occupying very high political offices. After all, they are just like any other citizen when they come before the courts of law – equality before the law.

The many, but very sensitive, political cases before our courts of law today show the importance of our courts in keeping our country peaceful and stable by independent and impartial adjudication of disputes. This also shows that for all its deficiencies, which are many, people still have some faith in our judiciary, and this needs to be preserved and increased. Nothing should be done to undermine whatever little prestige our judiciary still enjoys. But this doesn’t mean that criticism of what the judiciary, is doing should be discouraged or prohibited. Pointing out weaknesses of the judiciary will help it rid itself of vices, and as such should be encouraged. But of course, all criticism should be honest if it is to be of value. Sheer malice and slander of adjudicators will not help anyone.

We need to invest heavily in our judiciary and our entire judicial process.

And only the most honest, the most upright, the most fair-minded, those with highest levels of integrity, the most intelligent among our lawyers should be made judges. Dishonest, partial, corrupt, compromised, partisan judges are a danger not only to the judiciary but to the whole nation. And as such, we don’t need them. They must go. We are reminded in Proverbs 24 : 23 – 25: “Wise men have also said these things: it is wrong for a judge to be prejudiced. If he pronounces a guilty person innocent, he will be cursed and hated by everyone. Judges should punish the guilty, however, we will be prosperous and enjoy a good reputation.”

The political cases before our courts today just go to show how important our courts are to the rule of law in our country and to our whole democratic process. It is impossible for us to promote democracy and to be able to hold peaceful, free, fair and transparent elections without a judiciary that is seen or believed to be independent and impartial.

Labels: 2011 ELECTIONS, JUDICIARY

posted by MrK @ 8:11 PM