Maravi

Disobeying a court order

Disobeying a court order
Wed 12 Sep. 2012, 10:10 CAT

Many statements have been made on the issue of a court order allowing the UPND to hold a rally in Kanyama on Sunday that is said to have been disobeyed by the police.

If indeed there was a deliberate disobedience of the court order by the police then those responsible should be made to account for their breaking of the law. A court order is 'law' that needs to be obeyed. Whether one agrees or disagrees with the merits or demerits of a court order, it should not be arbitrarily disobeyed.

But the story does not end here. What has given rise to this debate is the fact that the court was able to issue a decision that we can today call a court order in favour of UPND and against the police.

And today, wrong or right, we are seeing many decisions against the executive coming from the Judiciary at a rate we never saw under the Rupiah Banda regime. One who feels disadvantaged by an Executive decision can today confidently go to court and seek justice with a good expectation of getting it. This was not the case under the previous regime where the Executive and the judiciary had almost become one. Under Rupiah, the executive got almost everything they wanted from our courts.

If Rupiah wanted to save Frederick Chiluba from going to jail, the courts gave him that decision. If Rupiah didn't want the London High Court judgment registered so that it could be enforced in Zambia, the courts helped him to achieve that. This doesn't seem to be the case today.

There are many decisions that our courts of law are taking against the Executive and sometimes to the annoyance of the Executive. And so far, all the decisions of the courts seem to have been respected by the Executive even if they may not be agreed with. This is the way things should be even if sometimes those in the Executive are irritated and feel the courts are still operating the way they operated under Rupiah and are still serving such interests.

Yes, it is true that some of our judicial officers were corrupted by the Executive of Rupiah and are still at the service of their former masters or members of their league. And there is temptation to try and square up things by simply ignoring or frustrating their schemes. This will not be the right way to deal with such elements.

There are certainly better ways of dealing with such judicial officers. There is a trail of their conduct and the time will come to deal with them. And where there is enough evidence of misconduct, complaints can be raised to the appropriate bodies to deal with them. Those who go overboard, tribunals can be sought to sort them out.

And moreover, it's just a matter of time before a serious overhaul of our entire judicial process is initiated. We have no choice but to learn and draw inspiration from how the Kenyans sorted out the inadequacies or deficiencies of their judiciary.

What is needed is a judiciary that is independent and which can take decisions that are respected by all citizens. Our Judiciary has suffered a serious loss in terms of credibility. It needs a lot of help to restore public confidence and support. And given this situation, we should desist from doing anything whose net effect will be to erode whatever little public confidence still remains in our Judiciary.

The damage that the Rupiah regime did to our Judiciary will require drastic measures to correct. Under Rupiah, those who adjudicated or settled cases were not expected to be in any real sense independent of his wishes or desires. Under Rupiah, justice in this country had become his prerogative, which he carried out through his judges and magistrates. As such, the separation of powers was only on paper. And not only was there no separation of powers between the judiciary and the executive, but those who judged were agents of Rupiah.

Those Rupiah wanted to sort out, he simply took them to court and unleashed his judges and magistrates on them. We were victims of that order. We know what went on. We know very well how certain judges or magistrates behaved to satisfy Rupiah's wishes. And we can see the difference today.

UPND, an opposition political party, can go to court and get a decision in their favour on a matter that the Executive seems to have a strong interest in. Under the rule of their ally Rupiah, this was not possible. The courts would always find a way to give Rupiah a decision he desired and justify it in all sorts of ways.

The court decision allowing UPND to hold its rally in Kanyama is not a minus but a plus on the PF government. The opposition in this country today is able to go to court and get a judgment in its favour! Whatever might have happened to the realisation of the benefits of that court order, the most important thing is that it was there in the first place. And those who have been accused of ignoring that court order have not simply said 'to hell with it'. They have given their own legal arguments to justify why it was not 'obeyed'. It is not a case of simply, and without any regard, disobeying the court order. And it will be interesting to follow the matter when it comes up again for the contempt proceedings that the UPND wants to raise against those it feels disobeyed the court order.

It is easy to rush to the condemnation of the government without taking a deep look and reflecting upon what has made it possible for that court order to be there. And indeed for those who are aggrieved over the failure by the police to respect that order to go back to court and commence contempt proceedings. Such things are not possible in a state of anarchy, under a government that has no respect for the courts and indeed the rule of law in general. These are things we should bear in mind as we issue our unilateral judgments. And let's not forget that in our courts, we still have many rotten eggs, some criminals in robes who are not fit to be adjudicators, who are fit to be in Chimbokaila.

It is therefore important that judicial reforms are speeded up. But this may also be tied to how quickly we conclude our constitutional review process because the two go hand in hand.

Labels: CHARLES KAKOMA, UPND

posted by MrK @ 4:44 PM