Independence of the judiciary and judicial accountability: a response to Mehluli Batakathi Malisa
By Joseph Chirwa
1. Introduction
I was elated to read a reply to my article published in The Mast of 4th June, 2022 in which I argued that “it is better to have a corrupt and incompetent judiciary than one that is not independent.” There was social media frenzy surrounding the article in question and it appears that majority of those that commented ended just on the title without going into detail. Secondly, there are those that failed to underline the core issues and ended up misdirecting themselves like my good friend comrade Malisa.
2. Shooting the messenger, not the message
Character is everything. The Holy Bible in the book of Proverbs 22: 1 states that, ‘’a good name is to be chosen rather than great riches, loving favour rather than silver and gold”. It is for this reason that I wish to correct the great misdirection by my good brother that I am advocating for normalisation of a corrupt judiciary. This is a great misdirection and a deliberate one resulting from a grave failure to read the detail of my text. In my text I used “better than” suggesting a comparison between two evils. This is also the spirit which the superior court followed in Miyanda v Chaila. At no point did I advocate for a corrupt and incompetent judiciary as suggested. Instead of reading the text to understand, it appears that my brother read my article to critique. He has fallen in the same trap as the majority did by only looking at the title. This is so because careful reading of the text will show that I was weighing evils, the greater of which is lack of independence of the judiciary. To the extent that if one was asked to choose between a corrupt and independent judiciary and one that takes orders from the executive or any other person, they would choose the first. This is in no way suggesting that we should have a corrupt and incompetent judiciary. The devil is in the detail and on this my brother completely lost track.
3. Better than implies a lesser evil
As stated above, my brother gravely misdirected himself when he failed to appreciate the underlying concepts of the now famous infamous article. He suggests that I attributed the word “purge” to the removal of what he says two judges. He even goes on to state that procedural mechanisms were followed in the removal of those judges he is referring to. Careful perusal of my article will show that the use of the word “purge’ never attributed to anyone. It was generic. He is adding words to it in order to suit his argument. To suggest that procedure was followed is equally misleading. The subject at hand is currently in court hence sub judice. For ease of reference, my brother can refer to the case of Joshua Ndipolya Banda v Attorney-General (2022) and Sunday Nkonde SC v Attorney-General (2022) where both judges have challenged their removal. How my brother reached a conclusion of procedural mechanisms being followed before the Constitutional Court of Zambia has pronounced itself on these is shockingly speculative and a misdirection.
Secondly, my brother suggests that the decision in Miyanda v Chaila is bad law. My brother knows better that to say a decision of a superior court is bad law is academic and that decision is bad law only when it is reversed. As it stands the decision may be academically bad law but it is law. That is what judicial precedent or stare decisis implies and this is treasured in our Constitution under Article 125 (3). If my brother took time to read the case in question, he would have found that justice Sakala explained the rationale for the holding. If a judge is corrupt, you report that judge to law enforcement agencies and Judicial Complaints Commission (JCC). If a judge is incompetent, you report that judge to relevant authorities, both administratively and JCC. That is judicial accountability. Cadres protesting at court grounds to demand the removal of judges and magistrates is not judicial accountability. It is hooliganism. It is character assassination to suggest that Chirwa is suggesting that a corrupt and incompetent judiciary is better than the one that is not independent. It is a superior court judgement which reasoned so and which I support. Independence is everything and lack of independence has no cure. Corruption and incompetence have a cure through JCC and law enforcement.
4. Judicial accountability
When all is said and done and ad hominems shelved, we may see that my brother and I have the same conclusion. The conclusion is that we need an independent judiciary. Intimidation of judges and magistrates through transfers undermines judicial independence. Judicial independence is a prerequisite to judicial accountability. A judiciary that is not independent cannot be accountable. I was merely commenting on the events that raise suspicion on the transfer of magistrates. I referred to the protest by cadres who specifically asked for magistrates to be dealt with. I also referred to the response by the Judicial Service Commission (JSC) justifying the transfers. This is what raised questions. I did not question the powers of the JCC to transfer but the timing looking at the events surrounding the transfers. My brother challenges me to provide evidence that the magistrates transferred handled corruption cases. My answer to this is simple. Unless my brother is averse to current affairs and facts then I can give him the list. It is a notorious fact that those transferred handled corruption cases of Bowman Lusambo, Joseph Malanji and others.
There are mechanisms under the Zambian Constitution and other laws that seek judicial accountability. Even the Bangalore Principles suggested by my brother promote judicial independence as much as it promotes judicial accountability. Within the spectrum of separation of powers lies judicial independence and judicial accountability. We need an independent judiciary that is accountable. We need a competent and corruption free judiciary. We need a judiciary that has it all: independence, accountability, competent and corruption free. However, if we were to choose one under the circumstances, we would rather have one that is incompetent and corrupt than one that is not independent. Some have asked to say how can we have a judiciary that is incompetent and corrupt and expect it to be independent. This is a good question but at the same time a great error of judgement resulting from failure to articulate the message I am trying to put across. Once this articulation is done then there will be no misdirection.
5. Conclusion
In conclusion, I must hasten to say that I was shocked that my brother does not see anything wrong in judicial interference or attempts thereof by the executive. Being a vocal critic of the Patriotic Front (PF) regime, I expected better. Careful reading of my article will show that I advocate for a judiciary that is free from executive interference. My brother, together with a host of other academicians, were the voice of reason during the PF era. Where is my brother’s voice this time around that he does not see anything wrong in the happenings of the country at this critical hour?