IS THE JUDICIARY STILL ON TRIAL?
“It is not the duty of the Judiciary to fight corruption. Theirs is to met out justice but if they step into the fight against corruption, then trouble is in the neighbourhood.” ~ Jonas Zimba, Zambian lawyer
INTRODUCTION
In a must-read periodical article published by the Zambia Law Journal in 2011 titled “The Zambian Judiciary on Trial: the Politicisation of the Judiciary or the Judicialisation of Politics?” Dr. Mumba Malila, S.C., now his Lordship the Chief Justice of the Republic of. Zambia, introduces his first chapter by acknowledging that there existed a widespread public perception that the Zambian Judiciary had lost its independence, or was otherwise compromised. This public perception was based on a belief that the Judiciary had conspired with the executive arm of government to entrench a culture of impunity for government officials involved in corruption and abuse of taxpayer’s money.
Over a decade later, the tide has turned in the opposite direction, with a growth in perception that the Judiciary has now been weaponised against government officials, opposing politicians and citizens in general. This is the theme for our discussion.
WEAPONISING THE JUDICIARY?
According to the 2011 publication by Dr. Mumba Malila, the judicialisation of politics, and with it the politicisation of the Judiciary which occurred since the advent of multi-party democracy in 1991, had seriously affected the independence of the Judiciary in the negative. This author wonders whether a similar conclusion about our country’s Judiciary, now presided over by the self-same Dr. Malila as Chief Justice of the Republic of Zambia, would be reached at this point. I think the perception has changed and shifted to what some claim – whether true or not – that the status has moved from the judicialisation of politics to weaponisation of the Judiciary or judicialisation of the weaponry. Let me explain.
After two decades of the State losing court battles in the fight against corruption, including an era in which the country was said to have been turned into a courtroom, the Rupiah Banda government enacted the Forfeiture of Proceeds of Crime Act on 13th April, 2010.
The Act now provides an easy route for the State to secure convictions of former and serving government officials and persons accused of financial crimes. Such convictions are based on nothing more than suspicion – a state of conjecture or surmise where proof is lacking – that an accused person could possibly have committed a crime and gained some pecuniary advantage in form of money or real property, namely land, a farm, mine or housing or other items of value.
Under the Act, the State doesn’t need to prove that a crime was actually committed and proved beyond reasonable doubt, as required by a long-standing principle of criminal law. The accused is easily sent to jail on the balance of probabilities that what they possess may have been acquired from some unknown and unproven crime, which violates the constitutional right to be presumed innocent until proved guilty before a court of law.
The Constitution itself was, I don’t know why, crafted to provide for “certain instances” when the prosecution can require an accused person to prove that they did not commit a crime in order to acquire the property which is being alleged to be the proceeds of crime.
In this instant case of the Act, the burden of proof remains with the accuser, to prove him/herself innocent once the State proves its suspicion on the balance of probabilities. Once the courts finds the accused person with the case to answer, the accused person should never opt to exercise the option of remaining silent. It can be fatal. They ought to give some sort of explanation to prove their innocence.
The promulgation of the Act was the beginning of what some members of the public allege to have been the executive weaponizing the Judiciary against former and serving government officials and persons alleged to have committed financial or economic crimes.
Since 2010, the growing culture by the executive has been to use the weapon in its hands to deal with government officials and, especially, those who have served in government but are now opposing politicians and even private citizens who have nothing to do with government or politics, but are perceived as encroaching on the territory of those who wield power – more recently, the case of James Ndambo is illustrative of this trend.
Successive leaders have, to a large extent, moderately used this weapon but there have been cases, of course, in which politicians smelt the stink of this law when they crossed paths with those who had political power. Investigations and prosecution would be ordered against fellow power brokers perceived as being a threat to their position of power.
More recently, sentiments from a certain section of society are that the judicialization of political power, i.e. the abuse of political power to harass perceived or real competitors through weaponised legislation, has been actualised through the formation of the Economic and Financial Crimes Courts, whose expectation is that they shall speedily convict those brought before it through the very convenient Forfeiture of Proceeds of Crimes law.
Shortly after the formation of the Economic and Financial Crimes Court, the self-same Dr. Mumba Malila, now in his capacity as Zambia’s Chief Justice, designated specific subordinate courts to handle alleged economic and financial crimes on a fast-track basis. It is now being alleged that some magistrates, many of whom have considerable experience serving on the bench, were transferred from Lusaka to apparently pave way for what His Lordship the Chief Justice has termed as “carefully identified magistrates” to preside over these courts.
Of course, the public was not told what criteria constituted this “careful selection” in view of the fact that all judicial officers and judges are presumed to serve only the Constitution and the law regardless of demeanour. From the knowledge available in public domain, none of these carefully selected magistrates were known to be experts or to have had more specialised training in financial and economic crimes than their colleagues who were transferred to make way.
It is a sound assumption that all adjudicators (Judges or magistrates) of the same class are equal, and none may therefore be considered to be more suitable than any other at any level. Our Chief Justice now seems to contend that good adjudicators can be identified by “careful selection” and duly declared to be better adjudicators than others.
In other words, if one seeks a fair trial, then by default, the magistrates who serve on the Economic and Financial Crimes court are the best, having been “carefully identified and selected” for their qualities by the powers that be. All other magistrates are to be treated with caution, having failed to pass the careful scrutiny which would have qualified them to serve on the Economic and Financial Crimes court?
It is entirely logical to make the argument that, from that moment, His Lordship the Chief Justice Dr. Malila, has publicly declared the clear intention of the Judiciary to implement the program of the Executive branch on fighting corruption and ill-gotten wealth under the banner of these financial crimes’ courts. In his own words, “it is not business as usual.” Indeed. The political establishment wanted the fast-track financial crimes courts for their own purposes; Chief Justice Dr. Malila obliged and delivered.
The unusual judicial business can be discerned from reading a couple of His Lordship’s the Chief Justice’s speeches, delivered this far: the Judiciary has stepped into the corruption fight as a special case, and this determination by the Judiciary, is demonstrated by the Judiciary moving very rapidly in establishing some subordinate courts which are presided over by “carefully identified” magistrates to secure convictions and win the corruption fight.
In future, some statistics ought to be done on how many cases were taken before these courts using the very convenient but questionable legislation which the Supreme Court had found to be constitutional in the Liato case. As we now know politicians, this same law will in future be utilised against those that may be serving in government today. Its a never-ending cycle.
(To be continued)
IS THE JUDICIARY STILL ON TRIAL?
“The bedrock of our democracy is the rule of law and that means we have to have an independent Judiciary, Judges who can make decisions independent of the political winds that are blowing.”
~ Caroline Kennedy, American Attorney and Diplomat
(Continued from last week)
During the 2023 Ceremonial Opening of the Lusaka High Court Criminal Session, His Lordship the Chief Justice Dr. Mumba Malila, S.C. expressed his concerns to Judges and, by extension, to Judicial Officers about delays in the judicial process. In his own words, he said:
“The pace of disposal of many of these matters has admittedly been slow, which has provoked the impatience of the people whose resources were allegedly stolen. They are agitated by the tardy prosecution process. They want results quickly…”
The Chief Justice is concerned with meeting timelines, rather than the requirements of court processes which may delay the work of his financial crimes court. On the other hand, the State, who is the complainant on behalf of the people, wants to see verdicts in the financial crimes’ courts delivered speedily and prays for convictions.
Fair enough, but here is the worrying aspect. Is His Lordship the Chief Justice saying to the courts that they must now act as demanded by the public who are agitated by the tardy prosecution process? The Chief Justice says the people want results quickly. So the public and the courts should never mind what the legal process requires, and the Judiciary shall do as the people demand, not as the processes require?
It has always been my believe that the Judiciary serve justice under law, and not the people as such. Do we, as a public, assume that when a criminal matter is presented before the Judiciary as “The People v. Citizen Z,” then the people must always win because the Judiciary declared itself as having been employed by the people? Do we forget that we the people are also being claimed by the political classes as being their employer?
Are we to assume, then, that there is some collusion between the Judiciary and the politicians in their joint claim of being employed by the people? In those circumstances, can Citizen Z expect justice from a Judiciary which is expected by the public to owe its loyalty not to the constitution and the law, but to a fickle public?
The old maxim that “the wheels of justice grind slowly” is being seen as an impediment to swift convictions regardless of the facts or the law and should therefore be cast out of the path to swift convictions as demanded by the people, who according to the Chief Justice, are the victims whose money has been stolen.
But justice comes about by establishing the facts as required by the law, and this is established through the judicial process with its many rules which ensure that justice is not only done, but is seen to be done.
With the clock ticking so fast, it is expected and will become inevitable that our Chief Justice Malila may come under intense pressure to show and deliver results to the executive, which represents the people whose resources were allegedly stolen. The expectations are that the Judiciary ought to assist the executive by securing convictions and commensurate sentences. His Lordship, the Chief Justice Dr. Malila himself thus states:
“… no matter how long it takes, the courts are expected at the appropriate moment to deliver their verdicts. I expect that if these individuals are found guilty on the evidence, the courts will apply the full rigours of the law.”
But Chief Justice Malila does not end there. Speaking more like a member of the executive arm whose duty it is investigate corruption and bring suspects to book, he goes on to warn current leaders serving in government today as well as the civil servants, of what awaits them:
“I am also expectant that the criminal conduct, if any, of those currently mismanaging in any way the financial affairs of the State, stealing in various forms from the public purse or flouting procedures and causing financial loss or property – in short those engaged in criminal conduct, must know that they may be continuously undergoing surveillance and scrutiny by our law enforcement agencies and will be brought to justice as soon as prima facie evidence of criminality is established.”
As I loudly read out these remarks to my colleagues while we were taking a warm beer at Kawama, one colleague lamented, “these are hardly the words of a neutral judge who expects the State, in its prosecution of alleged offenders, to present convincing evidence on the basis of which, during trial by an unbiased court, the court will reach its verdict.”
Another one added, “this is fighting talk by an apparently neutral referee who, by his words, has already come to the conclusion that those brought before the courts, are guilty as charged unless they, the accused, can convince the court that they are innocent.”
Going by the words and tone of the Chief Justice’s speech quoted above, the author believes the courts may be disinclined to treat the accused as being innocent unless they prove themselves innocent. Whether the accused can expect a fair trial, is a moot point.
More as a reminder to the carefully identified magistrates and judges, and in a tone usually known among those who instigate and prosecute corruption cases, Chief Justice Malila told the gathering at the High Court:
“I must state from the outset that this corruption war will not be won overnight but with what the French call volonté politique (political will) and the support and participation of all persons of goodwill, who are in this case the victims of the vice in one way or another, it will be won someday.”
Volonté politique from the lips of the Chief Justice! Mon Dieu! Surely not! The Judiciary does not, should not need political will to perform its noble role of delivering justice to all – prosecution or defence or public.
This hymn of political will, should best be sung exclusively by the Executive and not the Judiciary, let alone the Chief Justice himself, one of the judges in the people’s last line of defence of our rights, the chief officer of our country’s justice system, to whom aggrieved appellants, especially accused persons, will one day stand before him.
With his own words, our esteemed Chief Justice may be revealing his prejudices ahead of his adjudication, and through his speeches to his fellow adjudicators, he foists his opinions and his prejudices upon the entire Judiciary.
(To be continued next week)
IS THE JUDICIARY STILL ON TRIAL?
“Justice though due to the accused, is also due to the accuser. The concept of fairness cannot be strained till it is narrowed to a filament. We are to keep our balance true.” ~ Benjamin Cardozo, late American lawyer & Associate Justice of the Supreme Court
(Continued from last week)
THE CASE OF DR. KATELE KALUMBA & OTHERS
In the relatively distant past, Dr. Mumba Malila (as he then was) had been part of the government of President the late Levy Mwanawasa who had appointed him as Attorney-General. In that capacity he rendered opinions to the government and, as admitted by himself, had joined the rather populist anti-corruption crusade which, the course of its execution, suffered some substantial setbacks.
Dr. Malila had continued the prosecution of former President the late Dr. Frederick Chiluba, Mr. Faustin Kabwe, Mr. Aaron Chungu, the UK law firm of Messrs. Meer Care and Malik as well as two other UK law firms, in the London High Court. However, the decision of the London High Court could not be enforced in Zambia – the Zambian Courts refused to register it in the absence of a law establishing a mutual obligation on the high Court of Zambia and it’s counterpart the high court for England and Wales, to enforce the decisions of the two high courts in each other’s country or legal jurisdiction.
In 2022, it is Dr. Mumba Malila sitting as Chief Justice and one of the three judges who, almost a decade later, who confirmed the jailing of Mr. Faustin Kabwe, Mr. Aaron Chungu, former Finance Minister Dr. Katele Kalumba and his Permanent Secretary Mrs. Stella Chibanda by then Magistrate Mr. Edward Musona. This conviction of Dr. Kalumba and his fellow accused persons by the Subordinate Court was well before Dr. Malila was appointed to the bench.
As it turns out, two of the Supreme Court Judges who heard and passed the verdict to imprison Dr. Katele Kalumba, that is, Chief Justice Mumba Malila himself and Honourable Mr. Justice Jones Chinyama, were both actively involved in the earlier prosecution or sentencing of the four appellants during their trials at the subordinate court of these four appellants; Dr. Malila was the Attorney General and Mr. Justice Chinyama was a Magistrate, at the time, between 2006 and 2010.
As Senior Resident Magistrate, Hon. Jones Chinyama handled the cases where the former President Frederick Chiluba, Faustin Kabwe and Aaron Chungu were the co-accused on charges they were facing, involving the theft of US $500,000 from the government. The two business executives were found guilty of theft and possession of public funds and were each imprisoned for three years each.
On the other hand, Dr. Chiluba was acquitted on the basis that the State had failed to prove the cases against him, and also noting that Dr. Chiluba, as President of the Republic was not subject the rules which governed the conduct of public officers. He was not a public officer. The then Magistrate Chinyama had, however, found Dr. Chiluba’s co-accused, that is, Access Financial Services Limited former directors Aaron Chungu and Faustin Kabwe, guilty.
Clearly the two judges should not have sat to hear and determine the appeal, in this case as they were largely prejudiced and biased because of their previous roles in these matters. It is reasonable to extend the requirement of a neutral arbiter to a dispute, that is, that no one shall be judge is his own case, to those who had previously prosecuted or heard and pronounced themselves on the matter.
BLIND OR AGITATED JUDICIARY TO PUBLIC COMMENTS?
In Chapter IV of his 2011 article, Dr. Malila discussed the question of why the Zambian Judiciary cannot afford to ignore comments about its independence and integrity. Among all arms of Government, it is the Judiciary which must actually adopt the Voltairean principle, “I wholly disapprove of what you say but will defend to the death your right to say it.”
And when opening the 2023 Criminal Session, Chief Justice Malila urged judges to determine cases based on evidence and the law, and not to allow themselves to be influenced by external pressures and factors such as political statements or indeed their own prejudices.
While the Chief Justice is not far from the truth when he stated that there is indeed a risk of push back against the anti-corruption efforts by powerful persons and sometimes by the very individuals being called upon to account or by their proxies, the greater risk though is that of “push forward” of corruption cases even when the evidence is insufficient, is not cogent, is scanty or even non-existent, as appeared to be in one case I closely followed in the new Financial Crimes Courts.
The internal ‘push forward’ in these cases could be motivated by the need for courts to be seen to be doing something in the so-called fight against corruption. It is not inconceivable that some in the Judiciary may want to be seen singing the same hymn with the executive under the guise of fighting corruption, by convicting persons through the use of an easy Forfeiture of Proceeds of Crime law, under which possession of property reasonably suspected to be proceeds of crime is sufficient to secure a conviction. After all, it may be reasoned that these cases do not require proof beyond reasonable doubt but just suspicion.
The role of the courts is to dispense justice in a fair, impartial manner and without prejudice. This is what we mean when we say Justice is blind. Judges and Magistrates must fairly make decisions based only on the information presented to them, rather than based on personal experiences, or who they like most. The courts are supposed to protect the rights of the people without being influenced by outside forces or the singing, grievances, and recitations by the complainants.
The moment the executive or even the top Judge himself begin to lecture Judges and Judicial Officers, asking them to open their eyes towards what is happening outside the courtroom, in the public sector, or to the public purse and telling them that they have a duty and must restore what was allegedly stolen, is the time when we asking Judges to remove their blindfold. In simple terms, it is asking judges and judicial officers to use our prejudices, likes and dislikes when hearing cases or in passing their verdicts.
It is a fair opinion to state that Chief Justice Dr Mumba Malila is clearly attempting to align the attitude of the Judiciary to the wishes of the Executive branch whose motivation in its pursuit of those accused of corruption can no longer be the conduct of fairer trials and impartial assessment of evidence but merely getting convictions for political expediency and wining international accolades.
Will we see, under the leadership of Mr. Chief Justice Malila, the Judiciary becoming the guardian of the executive branch or the Judiciary becoming the security guard of the Treasury, and not the guardian of citizens’ rights and liberties, including the right of accused persons?
But His Lordship did not forget to also sternly warn the public against what he termed irresponsible criticism, when he said:
“We will not condone baseless attacks aimed at ruining the judiciary with regard to current reforms taking place.”
Dr. Malila said the judiciary was not flattered by criticism which was vicious and irresponsible and would not condone such behaviour. He said the judiciary welcomed constructive criticism and would always adopt well balanced views regarding the performance of the institution.
It is becoming apparently clear that the three powerful arms of government are positioning to insulate themselves from vicious public criticism. The Legislature is in the habit of summoning members of the public who criticise it and subject them to reading apologies they don’t not write themselves.
When a person refuses to read such apology written on their behalf, whose wording they don’t agree with as did Hon Raphael Nakacinda, then they are told to wait for other stern action to be taken. Hon Cornellius Mweetwa suffered some suspension for refusing to apologise but Nakacinda may be unluck because the Judiciary, which itself is warning the public against vicious criticism, may be asked to send him to prison.
I agree with Dr. Malila that the public must offer constructive criticism to the Judiciary. Afterall, the Judiciary is accountable to the citizenry whose judicial power they exercise. But vicious criticism is also not to flatter the Judiciary. Those who use vicious criticism are people that believe options have run out for communicating its messages or the Judiciary is ignoring public comments regarding its performance.
Among the three arms of government, the Judiciary is supposed to be a leader in protecting the right to expression as it did in the case of Roy Clarke whose sharp criticism of the executive, through satire, had earned him deportation which the court reversed. Even though freedom of expression is not absolute, the Judiciary must protect this freedom of expression to the biggest extent possible.
CONCLUSION
It is the conclusion of this author that Dr. Malila has joined the executive in grieving on how corruption cases are taking long, and is now reciting the same verse in warning public officials. Is this the subtle way of asking his carefully selected magistrates at the financial crimes courts and Judges to take note of these external factors even as they hear cases and deliver their verdicts? Is our celebrated Dr. Malila telling Judicial Officers and Judges that they must remove the blindfold?
There can be no due process, no rule of law, no justice without neutrality from our adjudicators or when adjudicators are enjoined to be part of the executive’s anti-corruption drive, largely expecting them to convict or to order that people’s properties be taken away based on the weapons we have put in the law and gifting it to the State, who have now found an easy weapon in the law which doesn’t require them to prove the real crime that could have been committed before convictions can be made and peoples properties taken away in a country with an informal economy.
