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Thursday, 16 July 2009

In search of independent judges..

Patrick Jabani continues a strange emerging trend of similar articles appearing in The Post and the Government owned papers, but with different headlines! The latest piece offers some interesting thoughts on the current weaknesses within the judicial system, largely related to the multiplicity of judicial roles and ineffective funding.

The independence of the judiciary is absolutely essential to democracy and the rule of law in any given country including Zambia. Of late there has been so much focus on the weaknesses of the judiciary and the inadequate separation of powers. Earlier, more criticism has been directed to the other two arms of Government, the executive and legislature. The independence of the judiciary has not been thoroughly analysed and applied in Zambia where judges can be appointed to carry out executive tasks such as heading investigative or electoral commissions.

The absence of any vigorous commitment to separation of powers has the potential to make Zambia’s Constitution weak. The Constitution must strengthen the principles of separation of powers of the three branches of Government namely legislature, executive and the judiciary.

The independence of the judiciary should guarantee that individual judges are free of the control of the executive and legislature. This would accord judges a high rating on the independence scale.

While extolling the virtues of judicial impartiality and independence, Zambia has done nothing to develop a policy on the use of judges. The right of the executive to use a judge outside his regular duties such as chairing commissions of investigations has not only depleted the number of judges but also compromised their contribution to the independence of the judiciary. Some of the enquiries in which judges have been appointed to head are of political nature.

The task of judges is to decide what the law is regarding justice and fair-play and not what social or political conditions are. It has always been thought that by the use of High Court judges, this would add greatly to the exposition of the executive’s cases while agreeing the work would not be wholly judicial in the ordinary sense.

The judiciary, in the exercise of its judicial and administrative functions must strictly be subject to the Constitution and law and should not be subject to the control or direction of any person or authority. No other person including any member of the executive or legislature should interfere with the judges or judiciary officers in the exercise of their judiciary powers. Instead, the executive, legislature and other State institutions should accord to the judiciary any assistance required to protect the independence, dignity and effectiveness of the judiciary. A person exercising judicial power should not be liable for any act or omission done or omitted to be done in the exercise of any judicial power. The independence of the judiciary should guarantee access to justice and rule of law for all citizens despite their social status and political affiliation.

The Constitution vests the judicial power of Zambia in the courts and sets out the jurisdiction of the courts. This principal law must place emphasis on the independence of the judiciary, including the immunity for judges and judicial officers in the exercise of their functions.

Elaborate measures must be put in the Constitution to establish and protect the independence of the judiciary. Such measures should include the financial independence of the judiciary making it a self-accounting institution which will prepare its own budget and deal directly with the responsible Finance minister. The judiciary should prepare and submit its annual budget estimates to the minister of Finance who, taking into consideration equitable sharing of the national resources shall determine the budget for the judiciary.

The judiciary should be adequately funded in any financial year to enable it to effectively carry out its mandate. This means that the judiciary shall become a self-accounting institution and shall deal directly with the ministry of Finance in matters relating to its finances. The expenses of the judiciary, including its emoluments payable to or in respect of a judge or judicial officer shall be a charge on the Consolidated Fund.

The Mungómba draft constitution has recommended the establishment of the Judicial Service Commission to review and submit recommendations for the emoluments and other conditions of service of judges to the Emoluments Commission. The Emoluments Commission shall, in turn, review recommendations from the Judicial Service Commission and make appropriate recommendations for the emoluments of judges for ratification by the National Assembly. The National Assembly shall enact legislation providing for the emoluments and other terms of condition of service for judges. The emoluments of a judge shall not be reduced to the disadvantage of the judge during his or her tenure of office.

The Constitution should also set out measures and procedures for appointment of judicial officers, including acting appointments. Such measures should ensure that judges are not answerable to any person or authority in the performance of their functions. This will also guarantee that judges or judicial officers shall not be removed at an individual’s will or pleasure.

It is proposed in the Mungómba draft constitution that the president of the Republic of Zambia shall in consultation with the new Judicial Service Commission and with ratification of the National Assembly appoint the Chief Justice and the Deputy Chief Justice as well as other judges of the High and Supreme courts. The Judicial Service Commission shall appoint such number of judicial officers as the Judicial Service Commission considers necessary for the proper functioning of the judiciary.

The independence of the judiciary is also closely linked to the security of tenure of office of judges and judicial officers. The causes of the removal of a judge from office must be investigated thoroughly and made known while the ultimate determination of the case should be made constitutionally.

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