Justice Sakala must go

Justice Sakala must go
By The Post
Mon 03 Oct. 2011, 16:10 CAT

There is need for a conversion of heart and for the transformation of the social structures in order to build our country. We say there is need for a conversion of heart because justice, liberties and all these nice things we yearn for lie in the hearts of men and women; when they die there, no constitution, no institution, no law, no court can save them.

And the pursuit of justice must be a fundamental norm of the state. The best way to fulfil one's obligations of justice is to contribute to the common good. We say this because the common good is the reason for the existence of political, social and economic institutions. Common good calls upon all persons to contribute and commit themselves responsibly to building a peaceful and just society for all.

The fight against injustice is meaningless unless it is waged with a view to establishing a new social and political order in conformity with the demands of justice. Justice must already mark each stage of the establishment of this new order. Situations of grave injustice require courage to make far-reaching reforms. And this will be needed for us to make the necessary reforms in our judiciary.

It won't do to continue with the judiciary the way it is. We have been warning that if the judiciary does not self-correct, it will be corrected by forces outside it. It is clear today that the necessary reforms required to put our judiciary into a position where it can dispense justice in a more just, fair, efficient, effective and orderly manner need to come from outside the judiciary. The leadership of the judiciary, as it stands today, is corroded, is rotten. Chief Justice Ernest Sakala has no capacity to carry on the necessary reforms that our judiciary needs today. In fact, he is responsible, together with his close lieutenants, for the destruction of our judiciary.

Justice Sakala has compromised the independence of our judiciary in a manner no other Chief Justice has ever done. Justice Sakala sacrificed the independence of our judiciary on the altar of Rupiah Banda's political expedience. Even our one-party state judiciary was more independent of the executive than the one led by justice Sakala today. It is very difficult today to notice the boundary between the judiciary and the executive. The judiciary has become part of the executive in the same way the legislature is. But we know that "the accumulation of all powers, legislative, executive and judiciary, in the same hands may justly be pronounced the very definition of tyranny". This is what James Madison, the fourth president of the United States, observed. He was right. He was correct. And this is what justice Sakala has done to our judiciary.

Justice Sakala cannot deny complicity in the acquittal of Frederick Chiluba by magistrate Jones Chinyama. He cannot also deny complicity in judge Evans Hamaundu's refusal to register the London High Court judgment so that it could be enforced against Chiluba and his tandem of thieves. There are many questionable judgments that our judiciary, under the leadership of justice Sakala, has embarrassingly extended to the executive. Of course, justice Sakala has not been acting alone. There are magistrates, High Court and Supreme Court judges who have been working with him to destroy the independence of our judiciary. And for this reason, justice Sakala and those who had been working with him cannot be part of the reforms required to transform our judiciary into a truly independent, fair, just, efficient, effective and orderly judiciary. Justice Sakala and his accomplices must go before all this can take place. The question is: how do they go given the constitutional protection of tenure of office they enjoy?

Justice Sakala is serving on a contract after reaching the retirement age. His one-year contract can be terminated in the most just and fair way. As for the other judges, an arrangement can be made for their retirement. The entire Supreme Court bench can be retired by provisionary lowering the retirement age for a period of one year to say 55 or 58 years and deeming everyone to have reached the retirement age of 65. In this way, we will be in a position to retire the entire Supreme Court bench and start afresh. Those who are good and need to be preserved can be retained. The same should apply to the High Court and Industrial Relations Court.

If this can't work, then we may have to go the Kenya way. And our judges should be mindful of what happened in Kenya where almost the entire judiciary was swept out. That approach is costly in terms of loss of experience, institutional memory and continuity.

This will facilitate the restructuring of the judiciary. Following the retirement of the affected judges, the vacancies arising should immediately be filled by appointing and promoting suitably qualified and experienced persons. The High Court vacancies should be filled with a blend of qualified and experienced magistrates, assistant registrars, deputy registrars and private legal practitioners. The Supreme Court vacancies should be filled primarily by competent, courageous, qualified and experienced High Court judges.

There will be need to operationalise the provincial High Courts. Currently, there are five fully operational High Courts. These are situated in Livingstone, Lusaka, Kabwe, Ndola and Kitwe. There is need to fully operationalise the High Courts situated in Chipata, Mongu, Mansa, Kasama and Solwezi. These High Courts are currently being serviced by circuit judges. This system is expensive, inefficient and ineffective and provides limited access to justice by the inhabitants of these municipalities and surrounding districts. Appointees to man these courts should be drawn from High Court judges who are currently based in Livingstone, Lusaka, Kabwe, Ndola and Kitwe.

There will be need to establish the Court of Appeal as has been suggested during the constitution review process. And this should be placed between the High Court and the Supreme Court. The reasons advanced for the establishment of a Court of Appeal were that there was need for at least two stages of appeal from the High Court and that the Supreme Court was currently saddled with numerous appeals which it was not able to process efficiently. There is, therefore, need for a lower court to screen the appeals and lighten the burden of the Supreme Court, which in any case should be devoted to the resolution of novel cases and cases of a constitutional nature. The judges appointed to the Court of Appeal should be persons of undoubted competence and experience. The judges of the Court of Appeal should be drawn from the current crop of High Court judges, as well as from private practice.

In order to improve the quality of judgments and to promote speedy delivery of judgments, there is need to enlist research assistants or clerks to be attached to judges in the Supreme Court, the Court of Appeal and the High Court. Apart from ensuring quality judgments and their speedy delivery, such research assistants could in the long run constitute a pool of potential judges.

Let the weak have justice, be fair to the wretched (Ps 82:3). Authority has to be exercised legitimately. And authority is exercised legitimately if it is committed to the common good of society. Those among us who have to pronounce judgment on persons and situations should view the exercise of their authority as a service of the truth for the common good as well as for the wellbeing of the individual. We cannot ignore or turn a blind eye to our people's experience of unfairness and injustice.

We say all these things with the full knowledge that there is no perfect form of human government. Abuses can take place in every system, but the fundamental value of democracy, of the rule of law is to allow the participation of citizens in the government of their country in a just and fair manner. In this regard, democracy, combined with the rule of law, as a system of government is consonant with human rights and the respect for human dignity and freedom. Yes, we are a multiparty state and multipartyism can indeed favour democracy; but cannot always guarantee it. Democracy, like any other human institution, is vulnerable and fragile. Authentic democracy is possible only in a state ruled by law, on the basis of a correct conception of the human person.

And in saying all this, we are not in any way claiming to be wiser than others. No one person can claim to have a monopoly of truth and wisdom. No individual - or a group of individuals - can pretend to have all the resources needed to guarantee the progress of a nation. The contribution of the most humble members is often necessary for the good running of a group. We therefore appeal to other citizens to contribute their wisdom and experiences on this very important subject. We shouldn't follow leaders blindly; we should critically examine their true intentions, and the direction in which they are leading us. Is it to a richer, more satisfying life? To a life to which we are masters of our own destiny? Or, is it to new forms of unfulfilled hopes?

We also urge the Law Association of Zambia and all its members to take a keen interest in this issue and indeed lead it. They are better placed to deal with this issue and the law requires them to lead this effort of reforming the judiciary. They have a duty to deliver on this score. They shouldn't wait for the politicians in government to lead the way on judicial reforms.