It is better to have a corrupt and incompetent judiciary than one that is not independent
By Joseph Chirwa
Introduction
The events surrounding the judiciary since the set of the ‘New Dawn’ deserve a comment.
This is even when I know that my comments may not sit too well with the powers that be. However, I am comforted by the words of Desmond Tutu who warned that “if you are neutral in situations of injustice, you have chosen the side of the oppressor.” Thus, I will comment and state that “chondifika chindifike.”
Purge of judges
Since the set of the ‘New Dawn’ there have been administrative structural changes within the judiciary. One of the monumental moments was the appointment of a new Chief Justice. There was bipartisanship in support of the appointment of Justice Mumba Malila, SC as Chief Justice to fill the vacant position left by the late Ireen Mambilima. This is a score on the part of President Hakainde Hichilema for appointing a profound professional to replace another iconic figure. We supported and applaud the President for this. However, what followed is what many call the ‘purge’ of judges. In as much I do not subscribe to such thinking but the pronouncements from UPND cadres raise worry. To suggest that the judiciary was pro-PF and hence it must be disbanded is worrying. To accuse an independent judiciary and its judges of being partisan is shocking and undermines the rule of law and good governance. There is not even a shred of evidence to support the call for reforms that include disbanding specific courts because they may have ruled against the UPND whilst in opposition. To suggest that all judges appointed during the tenure of the PF and by president Edgar Lungu exercising his constitutional right to do so undermines the independence of the judiciary and is actually contemptuous. The UNPD government must rein in on its cadres and stop them from throwing malicious venoms on the judges as these are acts that undermine the rule of law. Judges must be judged by their conduct through set out mechanisms such as the Judicial Complaints Commission (JCC) and not at the altar of politics. I end here by quoting the great American Hugo Black who stated that “the layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.”
Transfer of magistrates
The transfer of magistrates is in itself a normal administrative routine. Magistrates have been transferred by the Judicial Service Commission (JSC) since its creation. However, two significant events lead to many of us question the timing of the mass transfers. The first followed a protest by UPND cadres at court grounds against magistrates performing their functions. To them, the failure by the state to secure convictions of people accused of corruption was the fault of magistrates. In the small minds of these cadres acting on impulse and fueled by mob psychology, the accused persons are guilty and they expect nothing more than a guilty verdict. In essence, the party and its government is asking the courts to play politics. The party and its government is asking the courts to discard the presumption of innocence and summarily convict the accused persons without due process so that it feeds public opinion that it is fighting corruption. The fight against corruption must be supported by all. However, it must not be used to settle political scores.
The second event of worry was a statement by the JSC that the transfers were a coincidence and had nothing to do with dealing with magistrates handling high profile corruption cases. This statement is alarming and dangerous. Its half-wittedness and the amateurish way it was made raises more questions than answers. It was better to keep quiet. That coincidence could have been avoided because the reckless transfers have far-reaching unintended consequences of the judiciary and the justice system. Many cases will have to be restarted. Many accused persons will spend more time in remand. It is a total disaster. In the interest of the rule of law and the respect for constitutionalism and key institutions like the judiciary the transfers must be reversed and a more intelligent way must be employed to effect those changes. The great American John F Kennedy, whose life was cut short by the brutality of a trigger and bullet once warned, “the rights of every man are diminished when the rights of one man are threatened.”
Politicisation of the judiciary or judicialisation of politics?
The independence of the judiciary is guaranteed under the Constitution of Zambia. The supreme law of the land requires that the judiciary as an institution must have both financial and functional independence (Articles 122 and 123). This also extends to judges as a collective and judges as individuals. Thus, the judiciary as an institution, judges as a collective and judges as individuals must not be subject to the control of any person or body. This includes the President of the Republic of Zambia. This includes all institutions such as the JCC and JSC. To bring politics to the courts of law is alarming, unfortunate and dangerous. Caroline Kennedy wisely guided that “the bedrock of our democracy is the rule of law and that means that we have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
This means that we allow magistrates and judges to apply the law as it is and not to satisfy the political agenda of a ruling political party. It is not the duty of the judges and magistrates to convict. Their job is to dispense justice regardless of the political winds and that is based on which party, being prosecution and defence, has a compelling case. The prosecution having a daunting task of presenting their case to the high threshold of “beyond reasonable doubt”. If that has not been met the judges and magistrates must acquit and acquit unapologetically. I end with the wise counsel of Nan Aaron who cautioned that “an independent judiciary is the crown jewel of our democracy” adding that “it is so vital to be used as a means of placating a political party’s base.”
Better to have a corrupt and incompetent judiciary.
It has always been the fundamental ethos of this jurisdiction that a corrupt judiciary is preferred to one that is not independent. We also believe that an incompetent judiciary is better than one that is not independent. In the case of Godfrey Miyanda v Matthew Chaila (judge of the High Court) (1985) it was held that “the public have a right to have the independence of the judiciary preserved; the absolute freedom and independence of judges is imperative and necessary for the better administration of justice.”
In his judgement, Ernest Linesi Sakala who later assumed the chair of Chief Justice opined that “it is better to take the chance of judicial incompetence, irritability, or irrelevance, than to run the risk of getting a Bench warped by apprehension of the consequences of judgments which ought to be given without fear or favour.”
Thus, all political players must allow the courts to operate independently. Both the party in government and the opposition must allow the courts to be independent as the independence of the judiciary is the only oxygen to our democracy. It is for this reason, at this defining hour and with so much promise that the UPND as a party in government must not repeat the mistakes of its predecessor parties. We must take heed to what the Burman dissident Aung San Suu Kyi said that “the judiciary must be strengthened and released from political interference.” This is so, as Andrew Jackson foretold, “all the rights secured under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.”
The author is a socio-political commentator and legal scholar. His main interests are constitutional law, criminal justice and politics. Email: counselchirwa@gmail.com./EC