Wednesday, July 17, 2013

If criticism of the Judiciary is valid, it must be made
By Editor
Sun 07 July 2013, 14:00 CAT

If criticism of the Judiciary is valid, it must be made. And no section of the community has all the virtues, neither does any have all the vices.

We are quite sure that some people try to do their jobs as best as they can, even if the result is not always entirely successful. 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. No institution - Judiciary, Legislature, Executive, whatever - should expect to be free from the scrutiny of those who give it their loyalty and support, not to mention those who don't.

But we are all part of the same fabric of our national society and that scrutiny, by one part of another, can be just as effective if it is made with a touch of honesty, gentleness and understanding.

Accordingly, no one should try to stop honest criticism of the Judiciary and its decisions. And we don't think that criticising the decisions of the Judiciary is a crime or something unacceptable. The Judiciary does sometimes get things wrong. And when the Judiciary is wrong it deserves criticism. But this criticism has to be honest criticism and done in a civil manner. There has to be honest and civility in the criticism.

And moreover, decisions of our judges are not shielded from criticism. Our whole appeal system is characterised by criticism of the decisions that judges make. Even the decisions of the Supreme Court, final as they may be, are open to criticism. And by criticism we mean honest criticism carried out with civility.

If the decisions of our courts, including the Supreme Court, over the election petitions are believed to be wrong, they are open to criticism. But not the criticism that we have been hearing from the opposition and other civil society organisations.

It is not honest and fair criticism to accuse the acting Chief Justice Lombe Chibesakunda of conniving with the ruling Patriotic Front to nullify MMD and opposition seats in a bid to give the Patriotic Front the parliamentary majority it is looking for. There is no truth and honesty in this type of criticism. Actually this is not criticism, it is criminal defamation of justice Chibesakunda and other Supreme Court judges who have delivered election petition judgments the opposition is not happy with. What we have been hearing from the opposition are prosecutable cases of contempt of court. And we are actually wondering why no contempt proceedings have been commenced against those who have been recklessly, maliciously and criminally attacking justice Chibesakunda and other Supreme Court judges.

If the decisions of the Supreme Court are faulty, let them be legally analysed and criticised.

It is interesting to note that those who have been making these criminal criticisms are not lawyers. The lawyers who were representing them in these petitions are quiet; are not speaking for them. Why? It is simply because the lawyers know the truth; they know they cannot defend or justify such criticism. But they want such criticism to be made and have allowed their clients to do so.

We are also surprised by the deafening silence of the Law Association of Zambia which is usually very quick to come to the defence of the Judiciary and judges.

It is a publicly known fact that the Law Association of Zambia is opposed to justice Chibesakunda being appointed Chief Justice. She is not the desired candidate for that job of the current leadership of the Law Association of Zambia. There are perfectly entitled to their own desires. They also have the right to point out and challenge any such appointments that are outside what the law permits.

We do not believe that the appointment of justice Chibesakunda as Chief Justice is outside the law. She may not be the desired candidate of some or many, but that does not make her appointment as Chief Justice illegal. If the appointment of justice Chibesakunda as Chief Justice is an illegality, then let those illegalities be brought out and give correct legal guidance to the nation and to all those involved in this process. If it is just a matter of one's desire then there is no issue because the issue of desire, when it comes to such appointments, lies only with the President.

And moreover, the law is clear on who should make such appointments. It is not the job of opposition leaders to make such appointments. It is also not the job of NGOs to make such appointments. Not even the Law Association of Zambia has powers to make such appointments. Of course, during the ratification process, the Law Association of Zambia and other civil society organisations are called by the appropriate select committee of Parliament to give their views on the presidential nominee for that job. These views aid the members of parliament in their decisions to ratify or not ratify the presidential nominee. It is not these civil society organisations, including the Law Association of Zambia, that ratify the presidential nominee. Of course, they have the right to lobby for or oppose the appointment of certain individuals. But the final decision on who becomes Chief Justice does not lie with them. If someone who doesn't qualify to be appointed Chief Justice is so appointed, they have the right to go to court and challenge that appointment so that it is declared null and void.

As for now, the Constitution of the Republic of Zambia vests in the President the power to appoint the Chief Justice. And the person so nominated by the President for the job may not always meet the desires of all or us as stakeholders. But we don't have a direct vote in this matter. Our judges, including the Chief Justice, are not appointed on the basis of a popular vote or approval. If we don't like this way of appointing the Chief Justice, let's change the Constitution to provide for that, instead of resorting to malice and slander of others.

We do appreciate the fact that we have had wrong or bad people as judges or even as Chief Justices. We had Mathew Ngulube - a man who was corrupted by the Chiluba regime - as our Chief Justice. Ngulube's corruption was exposed and he had to resign as Chief Justice. Of course, the Law Association of Zambia has no issue with corrupt Ngulube; they still invite him as the guest of honour at their annual general meetings. But what honour does Ngulube possess to be invited as a guest of honour by the Law Association of Zambia? This brings into question what the Law Association of Zambia really stands for or believes in.

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