Maravi

Judicial accountability

Judicial accountability
By The Post
Wed 25 Jan. 2012, 14:00 CAT

The Law Association of Zambia and its members are calling for judicial accountability. George Chisanga and Abraham Mwansa, featuring on Radio Phoenix's Let the People Talk programme yesterday, both echoed the Law Association of Zambia's call for judicial accountability. Chisanga said judges and magistrates must understand that their office is accountable to the public if they are to be on top of things in their operations.

And Mwansa said we need judicial reforms so that we have judicial accountability and justice that will benefit the people of Zambia. But we must first ask what it means to say someone is accountable for their actions. In many areas, accountability means that an individual who fails to perform satisfactorily in their job should be sacked or should resign. Some people have called this form of accountability, ‘sacrificial accountability', meaning that the only solution is for the individual concerned to no longer continue in their role.

In the case of the judiciary, however, safeguards are needed to ensure that judges are free to make their judicial decisions without fear or favour and thus to preserve their independence.

For example, if a politician or a senior judge felt able to sack a particular judge, or remove him or her from a case, simply because they did not like the decision reached, the principle of judicial independence could be greatly undermined and there could be no possibility of a fair trial. It could also lead judges to make decisions they felt might be more acceptable to whoever had the right to decide whether they should continue serving as judges or be promoted.

If, for instance, the promotion of a magistrate or a judge was in some way determined by one of the parties to the case, there would be a real risk that independent and impartial judicial decision making could be subverted by self-interests. This risk is there in our Judiciary and has been demonstrated by the promotions of magistrates and judges on lines that can be attributed to their loyalty to the regime for the decisions they made that were favourable to it.

However, it is clear that in Zambia, judges are not subject to this ‘sacrificial accountability'. And this is not the form of accountability the Law Association of Zambia and its members are calling for. They are calling for a different form of accountability - ‘explanatory accountability'. Put simply, this form of accountability means that individuals can be asked to give an account as to why they behaved in a particular way. And this form of accountability can take a multitude of ways.

Accountability ensures the independence of the judiciary. It encourages good performance by judges and magistrates.

And a well-performing judiciary is important for economic development. The link between a well-functioning judiciary and economic growth is, in one sense, nothing more than a return to the first principles. In the 15th century, Sir John Fortescue, Henry's VI's chancellor, wrote that England's prosperity was traceable to the quality of its legal institutions.

Almost 300 years later, Adam Smith, the founder of modern economics, concluded that "a tolerable administration of justice" was essential to "carry a state to the highest degree of opulence." At a turn of the 20th century, the German lawyer and sociologist Max Weber attributed the pronounced differences in development between West European states and China to the rationalised, well-functioning judiciary then common to European countries.

Thomas Hobbes, the 17th century English philosopher argued that without a reliable judicial system, traders will be reluctant to enter into wealth-enhancing exchanges for fear that their bargains may not be honoured. Leading development economists have rediscovered the wisdom of Hobbes' observation.

Douglass North, awarded the 1994 Nobel Prize in economics, says that the absence of low cost means of enforcing contracts is "the most important source of both historical stagnation and contemporary underdevelopment in the third world".

Oliver Williamson, another close student of developing economies, notes that a "high performance economy" is one that is characterised by a significant number of long-term contracts. But these, he says, are just the type of business relationships that are unlikely to thrive in the absence of a well-functioning judicial system.

It is therefore vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function, they must be free of any improper influence.

Such influence could come from any number of sources. It could arise from improper pressure by the executive, by individual litigants, the media, self-interest or other judges, in particular more senior judges. Over the last few years, especially the last three years, we saw court decisions that cannot be said to have been made without influence from the executive or/and senior judges.

We have heard of stories where some senior judges under the guise of exercising their supervisory functions have pressured junior judges or magistrates to adjudicate in a certain manner. This was clearly the case in the acquittal of Frederick Chiluba. And it can also not be denied to have been the case in the refusal by the High Court to register the London judgment against Chiluba and his tandem of thieves.

There are a number of issues that arose in these matters that required some accountability from the magistrate and the judge concerned and also some explanation from the Chief Justice himself.

What we heard when public pressure mounted on these issues were defensive statements from the executive and from the Judiciary that failed to address legitimate public concerns. Asking Jones Chinyama, the magistrate who acquitted Chiluba, to account is not encroaching on the independence of the Judiciary.

Equally, asking Evans Hamaundu, the judge who handled the case of the London High Court registration, to account for his judgment that clearly contradicted his own earlier judgment in a similar matter, is within the realm of judicial accountability. The public smelt a case of collusion to undermine the course of justice in these matters.

The Chief Justice failed to satisfy the public that nothing was wrong. It is actions like these that have seriously undermined the integrity of our Judiciary. And reforms are required to ensure higher levels of judicial accountability so that things like these do not happen again.

It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts and law should form the basis of a judge's decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice; to do justice as Lord Brougham, a 19th century Lord Chancellor, put it ‘between man and man' or as Lord Clarke, former Master of the Rolls put it more recently in 2005, ‘between citizen and citizen or between citizen and the state'.

The responsibilities of judges in disputes between the citizen and the state seem to be increasing together with the growth in governmental functions. The responsibility of the judiciary to protect citizens against unlawful acts of government has thus increased, and with it the need for the Judiciary to be independent of government. But our experience over the last three years is that of a Judiciary that was increasingly becoming part of the executive, that was colluding with the Executive against public interest or the common good.

As well as in fact being independent in this way, it is of vital importance that judges are seen to be both independent and impartial. Justice must not only be done - it must be seen to be done. This is not our experience over the last three years. There is a legitimate feeling that the independence and integrity of our Judiciary has been compromised and traded on the altar of opportunism and political expedience by elements within the Judiciary and in the Executive.

Citizens need to feel and be sure that the judge dealing with their case cannot be influenced by an outside party or by the judge's own personal interests. Open and naked bias or any appearance of such by judges undermines this. It cannot be denied that the standing of our Judiciary in the eyes and minds of our people is today very low. And because of this, urgent judicial reforms are required.

Labels: JUDICIARY, LAZ

posted by MrK @ 2:49 PM