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Saturday, 9 October 2010

Barriers to Justice (Crowded Courts), 2nd Edition

A recent Times of Zambia article on the struggle of prisoners to have their cases appealed in higher courts, which they attribute largely to congestion :
"Mike Muleba is a prisoner who was convicted on June 4, 2004 in the Kitwe High Court and appealed to the Supreme Court against his the verdict. Up until now, he has not appeared in the Supreme Court for his appeal....."

"In a related development of delayed cases in the Supreme Court sitting in Ndola, a man who seven years ago was convicted of aggravated robbery only appeared recently for his appeal. Moses Mulenga, 41, was jointly charged with Amon Banda for the murder of Major Kaunda and stealing his motor vehicle worth K80 million on November 3, 1999.....since then not much was heard of them until when the case suddenly resurfaced in Ndola this month. Mulenga together with Bandawere convicted of having robbedand killed Wezi Kaunda while armed with an AK-47 rifle and that during the act they used violence. The duo was sentenced to hang in 2003 after they were found guilty of the offence. It is clear from these proceedings that the duo had appealed to the Supreme Court asking it to review the earlier sentence imposed on them by the Lusaka High Court. It is common practice under the laws of Zambia that when one is sentenced, if not satisfied with the verdict, has every right to appeal to the High Court within a period of 21 days. But looking at the case of Banda and Mulenga, they were both convicted in 2003 and seven years has since elapsed after the judgment was passed only to have the appeal heard this year, September..."
Our courts are certainly crowded and the recent increase in judges was intended  (if you ignore the political impetus) to help with appeals. But the article oversimplifies the problem and overlooks three complications. 

First, the congestion in the higher courts is largely driven by the congestion in the lower courts. One may argue that recent initiatives to increase court capacity at the magistrate level may actually lead to more congestion in higher courts as the volume of cases increase. It is not immediately obvious  that we are likely to see a quicker resolution of appeals just because we have more high court or supreme court judges - if in effect the result is more volume of people in prison and generally seeking appeals from lower court decisions. There may be more higher court judges, but we can expect them to handle more cases, all things being equal because more people may join the court system as lower court capacity increase.

Secondly, the source of the appeals are not inherently grounded in the volume of cases going through lower courts per se, but on how the congestion in lower courts affects the quality of justice administered in those lower courts which in turn may lead to more / fewer subsequent appeals in higher courts. At present it appears that there's always ground for appeal and nearly those who can afford to appeal find themselves always being able to overturn cases (I need to check though some statistics on this e.g. proportion of successful appeals). The reason is that at the lower courts judges are not only incompetent but tend to rush through cases. If the quality of cases in lower courts is largely affected by volume, then perhaps the recent increase in volume may well reduce the appeals. Alternatively if incompetence is the big problem then more court capacity simply means more incompetent lower court judges leading to even more appeals (and associated temporary injustice). 

Finally, it is too simplistic to simply say cases are delayed because we have fewer judges. This becomes obvious when we accept that justice in Zambia is rationed. There's a two tier system. The rich usually have their cases appealed quickly and are able to exhaust the system. The reason Mulenga and Muleba have struggled to get their cases repealed is probably the same reason they are incarcerated - they are poor people suffering from failed government policies. They have no access to the levers of power and the money that ensures they get proper legal representation. 

These are complicated but very fascinating issues. I am conscious of the need to return to them next year as part of our on-going series on "Rethinking Justice". 

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