Maravi

Judiciary has failed - Sangwa

Judiciary has failed - Sangwa
By Ernest Chanda
Fri 20 Jan. 2012, 13:59 CAT

LUSAKA lawyer John Sangwa says the Judiciary has failed the people of Zambia. And Sangwa has observed that there is corruption in the Judiciary. Supporting the Law Association of Zambia's call for immediate judicial reforms, Sangwa said the people in charge of the institution could not be expected to carry out any meaningful reforms.

Sangwa in 2010 petitioned the legality of Chief Justice Ernest Sakala and late High Court judge Peter Chitengi's continued stay in office after surpassing their retirement age as stipulated in Article 98 (1) of the Republican Constitution.

After the High Court ruled against him, Sangwa appealed to the Supreme where the matter has stalled ever since.

"…that they have not reformed, that they have not done any changes, it is a failure on the part of the Judiciary. And for that reason the people that are there now in charge cannot preside over any meaningful reforms; because the fact that they have not made any changes it means they're happy with the situation," Sangwa said in an interview yesterday.

"So asking them to reform is like asking them to kill themselves. They can't, how can you kill yourself? Reform will only be carried out when you put new people with clear vision, clear sense of direction, younger in age, more energetic, forward looking. None of the judges there in the Supreme Court possess those qualities. The Judiciary needs a radical transformation."
Sangwa called for serious renewal of leadership in the Judiciary.

He said it would be difficult to carry out reforms with the same people in high offices of the institution.

"There has been renewal of the executive branch of government, there has been renewal of the Legislature, so you also need renewal of the Judiciary. You need new people there, not just for the sake of it; because they're not performing. In any other institution you don't perform, they fire you," he said.

"So the Judiciary has problems: some are institutional, some are genuine, some have been brought about by factors beyond the control of the judicial offices. Some of the problems that they face are self-inflicted; they are caused by them. The reason why there has to be a change is that the Judiciary itself should have taken the initiative to make changes internally."

He said the Judiciary should not have waited for people to call for reforms.
Sangwa said the institution should be conducting constant reforms to avoid reaching low levels of public trust like now.

"The Judiciary does not exist… it's not like you have a picture. If I've a nice picture on the wall, it is there for me to admire, it's there to please my senses. But the Judiciary is not like a picture, it's an institution that is designed to perform certain functions. Therefore as an institution it has to constantly renew itself and ask, are we still relevant?," he asked.

"Are we performing our functions? It doesn't require outsiders to begin to call for changes, no it shouldn't. The fact that outsiders are now calling for changes it means that they've failed; because if everything was fine with the Judiciary, the people would not be calling for change. The Judiciary itself should be able to find a way of renewing itself, and changing and making itself relevant and current and responding to the needs and challenges that the country faces."

He said the question of money should not arise because judicial officers were among the best paid public workers.

Sangwa said there had never been a time when the government had failed to pay judicial officers.

And Sangwa said the Judiciary was insulated from public scrutiny, making the institution none transparent.

He said the public should demand greater accountability from the Judiciary and know conditions surrounding judges' appointments.

"Judges cannot be removed unless the President decides to do so. If he doesn't they'll go on serving until they reach their 65 years. And if they're lucky they‘re given seven more years. So the whole process of appointing the judges is outside the control of the people; the people don't control that process," he said.

"The Chief Justice is appointed by the President alone, the judges of the Supreme Court are appointed by the President alone, subject to ratification by the National Assembly. But when you have a National Assembly controlled by the President's party, all the National Assembly does is simply to rubber stamp. So even when a judge misbehaves, unless the President decides to appoint a tribunal to investigate that removal, there's nothing you can do."

Sangwa said if the other two arms of government could be questioned, the Judiciary should also be scruitnised.

He said there should be a system where the public could have a say in the appointment of judges and the Chief Justice.

Sangwa said if the people could remove a president and member of parliament from office after a certain period, they should also be allowed to remove a non-performing judge or Chief Justice.

"To make up for that, the Judiciary on its own must put in measures to ensure that it is transparent and accountable to the people. It shouldn't react only when people scream, no! It should keep its doors open and constantly subject itself to criticism because that's the only way," he said.

"They are completely insulated, but the President, members of the National Assembly they are not insulated. We may have a problem with them, we'll simply say we'll wait, come five years we sort them out. But people don't have control over the Chief Justice and judges of the Supreme Court. So for that reason you need greater accountability and transparency."

Asked for suggestions to judicial reforms, Sangwa said: "First of all the mode of appointment should not be a secret process. The National Assembly should be able to hold public hearings when a judge is about to be appointed, especially when you are appointing a judge of the Supreme Court. There has to be a public hearing, and the members of the general public should be allowed to come forward and testify why a particular person should be Chief Justice or should be a judge of the Supreme Court or should not be a judge of the Supreme Court; that is one way that will help."

Sangwa further called for judicial activism to enhance the reforms.

He said the Judiciary had to be seen to be performing.

"You need judicial activism, the Judiciary should be active. They cannot only move when they're moved, no. They should be able to take certain steps to respond to the needs and challenges that the people are facing," he said

And Sangwa said appointing judges on contract was unconstitutional.

He said it was one of the issues he challenged in the Supreme Court two years ago.

"There's no provision in the Constitution for a judge to serve on contract. And even if there was such a provision the idea of having such a judge on contract is not consistent with the idea of an independent judiciary," he said.

"So if you want an independent Judiciary you cannot have judges on contract, which contract is struck in the backroom between that particular judge and the President. You can't have such an arrangement. So there are two ways in terms of the future: either you allow judges to serve up to 65 and go, or to serve for life in order to secure security of tenure. Allow them to serve up to 65, but of course making sure that by the time they reach 65 their cases will have finished, then they go."

Sangwa said putting judges on contract compromised their independence.

He said the President should not be allowed to put any judges on contract.

"Such practices undermine the independence of the Judiciary, because what happens is that if a judge wants to stay beyond 65 he'll start passing judgments that are favourable to the executive; he's seen as a good boy. So it undermines their independence," Sangwa said.

And Sangwa said the Judiciary could not claim to be free from corruption when the same affected the other two arms of government.

"And there's corruption within the Judiciary; corruption exists. How can you say there's corruption in the Executive, there's corruption in the Legislature, and how can you say that the Judiciary is immune from corruption? It's not; they're all affected," said Sangwa.

"It's like a house, you live in a flat. There are several flats, you think there can be cockroaches in your neighbour's flat and then the cockroaches will skip your flat? Obviously it will be infested. Having said that we still have very good fine judges who are hard working, who have taken their jobs very seriously. But these are very few."

In a letter dated January 11, 2012 to justice minister Sebastian Zulu, LAZ president James Banda called for immediate reforms in the Judiciary.

Banda further called for a new leadership to carry out the reforms properly.

Labels: JOHN SANGWA, JUDICIARY

posted by MrK @ 3:35 PM