An important IPS article on how the crowded court system has led to more people languishing in crowded remand prisons as they await sentences. The limited capacity in the court system has led to "rationing of justice" with richer folks getting heard quickly at the expense of the poor. The wheels of justice turn slowly if you are poor and find yourself in a Lusaka jail holding 1800 prisoners but with a design capacity of 300.
Justice Delayed Becoming Justice Denied, Lewis Mwanangombe, IPS (Dec 2009), Commentary :
Harry Mubita was tired of his wretched condition in prison. He had been in Lusaka Central Prison for more than a year, and still there was no sign that his theft case would be heard.
Mubita, a tailor, accepted money from a woman who wanted him to make her a traditional dress known as the Chitenge Outfit – a long skirt and an intricately cut and sewn top, with a matching wrap-around and head-scarf. All made from a single length of material.
But he failed to deliver.
Mubita also did not refund the ZMK70,000 (about 14.40 dollars) payment, or return the six metres of cotton print. The aggrieved woman told the police, and two constables armed with AK-47 rifles arrested Mubita at his Kaunda Square Market shop. Mubita's case is not unusual. What is unusual is that the day the magistrate recorded Mubita’s second plea, July 15, was the day on which former President Frederick Chiluba's lawyers, Robert Simeza and John Sangwa, announced their intention to sue chief justice Ernest Sakala for being 'over-aged'.
From the time the lawyers sued the chief justice in the High Court, it took only a week before the case was on the roll and allocated to judge Munalula Lisimba.
Among ordinary Zambians it can take more than a month from the time of arrest to when the accused appears before a judicial officer. Sometimes cases in the High Court, including appeals against the outcome of parliamentary election results, take as long as a year to be heard.
The speed with which the case against chief justice Sakala was handled amazed not only Mubita but many Zambians as well.
Judge Sakala and judge Peter Chitengi, had presided over an appeal by a person whose identity the lawyers did not want to reveal, but other sources indicated she was Regina Mwanza Chiluba, wife of ex-president Frederick Chiluba. At the time they were already over the retirement age of 65 for judges.
The lawyers submitted that by presiding over a case when they should already have retired, the judges compromised the fairness due to their client, since they had no authority to do so.
They argued that if President Rupiah Banda had wanted to retain them he should have submitted their appointments to parliament, which would have ratified or rejected them. The lawyers sued on the validity of the judges staying in office, claiming the chief justice had violated the law by remaining in office without the mandate of the people.
"This is what is often referred to as 'shaking the tree', because though the lawyers did take the judges (Sakala and Chitengi) to court, nothing really came of it, except the airing of legal arguments," observed Greg Phiri, a third-year law student at the University of Zambia.
Indeed chief justice Sakala and judge Chitengi did go to court for being 'over-aged', and appeared before High Court judge Munalula Lisimba, but predictably the case was dismissed with costs against Simeza and Sangwa Associates.
This case incidentally highlighted the existence of two types of judicial process in Zambia: one for the privileged few and the other for the lower echelons of society
The hearing against chief justice Sakala took merely a month, while those of others will drag on for years.
Sakala admits there are too few courtrooms and even fewer magistrates.
"I have files full of complaints on delayed judgments and adjournments," chief justice Sakala said earlier this year. He accused the local court justices, magistrates and judges of frustrating justice by ordering what he described as 'strangely long adjournments of cases, regardless of whether the matters are urgent or not’.
Zambia's prisons are consequently bursting at the seams with humanity. Penitentiaries built by imperial Britain to hold a few hundred are now overcrowded with thousands.
Lusaka Central Prison, for example, built by colonial Britain in the late 1950s for about 300 inmates, is crammed with about 1,800 prisoners – those convicted or awaiting trial.
"We are so overcrowded that when we sleep we cannot turn over freely. We all have to agree that we are turning to the right, and that is when we can do it simultaneously," Mubita lamented.
Another former prisoner says in some cells prisoners have to sleep in turns: while others sleep another group will be standing over their inert bodies. After a while they exchange positions.
The ministry of home affairs estimates there are about 33,000 offenders in the hell-hole prisons country-wide, but the prison upkeep is something the government does not want to talk about.
Six years ago former commissioner of prisons, Jethro Mumbuwa, was so embarrassed by the nakedness of his prisoners that he pleaded for a donation of prison uniforms from the South African department of corrections. The Zambia Prison Service was given thousands of cast-away green prison uniforms for its inmates, who in some cases walked with their buttocks showing. In the 2009 budget finance and national planning minister, Situmbeko Musokotwane, gave the Public Order and Safety sector; under which the Zambia Prison Service falls, together with Zambia Police, a sum of ZMK610.7 billion.
In the 2010 budget unveiled in October, and still under debate in parliament, the minister has allocated to the sector a slightly increased sum of ZMK771.5 billion (or 4.6 percent of the total budget).
But it is not the budget or the wrangling of lawyers which are of interest to the poor languishing in prisons. It is not even the decision of the National Constitutional Conference to adopt a clause on the retirement age of the chief justice, and set it at 70.
"They can talk about the retirement age of the chief justice, but will that speed up the wheels of justice in this country?" Howard Banda of the Prison Fellowship of Zambia asks.
Like most Zambians with relatives in prison, this civil society organisation is concerned about delayed justice for many and hastened justice for a few.
"When are these people likely to receive their justice?" he asks, adding that some suspects have been held in prison for as long as four years without seeing the end of their case.
Admittedly, as with all aspects of Zambian life, the dispensing of justice has been compromised by HIV/AIDS, whose prevalence rate is at 16 percent, while life expectancy has dropped from 57 to 37.
Some court cases are often deferred repeatedly, either because presiding officers die of AIDS-related illnesses, or they are ill because of HIV, or their spouses and children are affected by the virus.
As for Mubita, he eventually walked out to freedom after the court sentenced him to six months, but since he had languished in prison for an entire year, it was ruled that he had served his sentence. And finally he was released.