Tuesday, April 03, 2012
By The Post
Tue 03 Apr. 2012, 13:00 CAT
IT is difficult to understand or appreciate why anyone can fail to see the need for reforms in our Judiciary. It is surprising that the Chief Justice of our Republic, Ernest Sakala, does not see the need for urgent reforms in the Judiciary. We say this because in a more or less mocking manner, justice Sakala last Friday said it was not clear to him how the reforms being agitated for in the Judiciary might be conducted. And this was not the first time justice Sakala was saying such things.
After a letter by James Banda, the president of the Law Association of Zambia, dated January 11, 2012 to the Minister of Justice, Sebastian Zulu and copied to the Chief Justice and the Attorney General on the need for urgent reforms in the judiciary, justice Sakala's response was to mock James: "I have seen in the press today where LAZ is talking about restoring integrity to the Judiciary.
We will wait to see how LAZ will do that…" It is very clear that justice Sakala is not interested in reforms and sees any talk of reforms in the Judiciary as an attack on himself.
Truly, the Law Association of Zambia has made it clear that the Judiciary is facing a leadership challenge which should be addressed for any meaningful reforms to be undertaken.
And it would appear that as long as justice Sakala is at the helm of our Judiciary, no meaningful reforms in that very important institution of our state will take place.
As the Law Association of Zambia correctly stated in its letter, "Judicial reform invariably will include filling the Judiciary with forward thinking, credible, competent judges and magistrates with integrity operating under clear and transparent rules without impunity and security of tenure."
It is understandable why today, Rodger Chongwe, a very senior lawyer, is saying that we need a revolution on reforms in the Judiciary. Like James, Rodger is saying that our Judiciary has many problems emanating from poor leadership.
Whose poor leadership? It's certainly that of justice Sakala himself. And Rodger insists: "That revolution accompanied by competence, honesty and integrity; that's what we want.
We don't want anything which cannot be done. We can have integrity, we can be competent and we can do our work efficiently; that is no problem. So, we are not asking for too much….
He (justice Sakala) knows the manner in which judicial reforms should be conducted. For example, isn't it the Chief Justice who has been talking about poor funding to the Judiciary? The major problem that has affected the Judiciary is corruption.
There has been a lot of corruption starting from the Supreme Court down to the local courts. That is why the public has lost confidence in our Judiciary. There are in fact some of us who feel that perhaps the first thing we should do is ask our judges to re-apply for their positions.
And in the applications, we will demand that they give us copies of the judgments that they have written and delivered, for examination by experts if there is need for them to go back to the bench…There is need for judicial reform because everywhere else, that is what is happening.
The Chief Justice himself and some of his colleagues have repeatedly denied the existence of corruption within the Judiciary…" This is what Rodger thinks. But there are many other senior lawyers who think the same way.
Some are even suggesting that the best way to proceed with our judicial reforms is to appoint a commission that will sit in camera to hear complaints of corruption, incompetence, inefficiency about every judge. And the concerned judges will be asked to explain themselves.
At the end of the day, everyone will be asked to re-apply and those who feel they don't qualify, given what is known about them, will be advised to resign on their own. If they refuse to resign, a tribunal will be appointed to hear complaints about their misconduct or incompetence.
If they resign, they will be given their terminal benefits like every other public servant who resigns. If they are fired after a tribunal hearing, they will definitely stand to lose more.
This is the approach Kenya had taken to rid itself of a rotten and corrupt Judiciary. They literary had to start afresh. We may need to start afresh because our Judiciary in certain key aspects is rotten to the core. Of course, this is not to say that every judge or magistrate in our Judiciary is rotten. No. There are some good judges and magistrates.
In any discipline, there are people who pursue it with honour and with decency and there are those who don't. To say that every judge and magistrate or even local court justice in our Judiciary is corrupt wouldn't be accurate or fair.
Much of the linkage may be said to be unjustified, unfair or inaccurate, but since it is what people thought - what people still think - it must be appreciated as a deeply-felt mistrust, rather than a momentary dissatisfaction.
It cannot be dismissed as a mere perception. It is not just about poor funding of the Judiciary as justice Sakala would like everyone to believe. There is a problem of failure of leadership and corruption in our Judiciary that we cannot afford to continue denying.
It must also now be clear to everyone that justice Sakala is not the man to lead these reforms because he is clearly not interested in any of such talk. But with or without justice Sakala, our Judiciary will be reformed in a manner that meets the aspirations of our people.
After all, justice Sakala is a man of the past not of the future of our Judiciary. His time has passed and his retirement should have started a long time ago, had it not been for the contract that was extended to him by Rupiah Banda.
We need a forward-looking leadership to carry out the necessary judicial reforms our people are legitimately demanding. As the Law Association of Zambia has correctly pointed out, "…the current leadership of the Judiciary would find it difficult to embrace and carry out the reforms we will be proposing".
This is a Judiciary that has to a large extent lost its sense of accountability to the public and which sees judicial independence and accountability as inconsistent.
And for a long time, it has seen itself as untouchable, ungovernable. But those days are gone and gone forever when respectful deference and fearful silence was the order of the day. Today, there is a great realisation among our people that no section of our nation, of our state has all the virtues, neither does any has all the vices.
They are sure that most people try to do their jobs as best they can, even if the result is not always entirely successful. They also do realise that he who has never failed to reach perfection has a right to be the harshest critic.
There can be no doubt, of course, that criticism is good for people and institutions that are part of public life. And no institution should expect to be free from the scrutiny of those who give it their loyalty and support, not to mention thos who don't.
We truly need a revolution on reforms in the Judiciary in the manner that Rodger, James and others in the legal fraternity and beyond are suggesting to give our Judiciary a new momentum and a breath of fresh air.