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Saturday, 28 May 2011

A Poverty of Rule of Law

A recent editorial in the Post contains some important reflections which we touch in our forthcoming monthly essay on the judiciary :
Rupiah Banda and George get the judgements they want from our courts. In a word, justice in this country is a presidential prerogative, which Rupiah, with the assistance of George, carries out through his appointed officials or justices....As we have stated before, as long as judges are appointed, paid, promoted or dismissed by persons or bodies controlled directly or indirectly by the president or the executive, the judiciary’s independence in our country will continue to remain more theoretical than real.

And truly as we have seen over the last close to three years of Rupiah’s rule, independence of the judiciary is an essential pillar supporting the rule of law and without it, there will be no meaningful rule of law to talk about in this country. It is not enough to say that the courts shall follow and apply the law faithfully and equally to all. One must in addition demand that there should be no dispensing power vested in the president or the executive or other body which would relieve a person from the duties and processes of the law. We have seen that there is hardly a more powerful weapon which can be abused in the hands of a corrupt or abusive government than that of initiating and discontinuing prosecutions.

We have seen how Rupiah is abusing the prosecution process to harass political opponents through unjustifiable prosecutions and by exempting his friends from liability for criminal acts. The Chiluba story tells one side of this very well. And the prosecutions of George Mpombo tell the other side of the story equally well. And it is clear from all these experiences that the judiciary at whatever level may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do, especially if that court lacks courage and freedom to carry its professional duties regarding the rule of law as indispensable to safeguard and advance all human rights.

And in our situation, this is compounded by human failure. It is not in dispute that some of our judicial officers are corrupt. It cannot be denied that some of our magistrates and judges are corrupt. It can also not be denied that there is no honest Director of Public Prosecutions who could have done what Mchenga did, who could have abused that office in the way he has done. Abuse of office is corruption. In short, what we are saying is Mchenga is corrupt. And no one can also deny the fact that many officers in our police service are corrupt. And the sum total of all this is a compromised and corrupted judicial process. What justice can one expect from such a process?

We know that it’s very difficult to deal with the corruption of magistrates and judges in this country because they highly protect themselves from any such attack or criticism with contempt proceedings. We saw how unfairly a senior lawyer, Nsuka Sambo, was dealt with, was sent to jail. As long as this remains the situation, it will be very difficult to deal with corruption in our judicial process. The judiciary has not been spared the corruption that has permeated the executive and the legislature and all sectors of our society.

But while it is easy to talk about and expose the corruption in the executive arm of government, it is not so easy to do the same with that of the judiciary, and to some extent, that of the legislature. We need to carry out serious reforms in our country. And reform of the judiciary is one of the most powerful anti-corruption measures. We have to meaningfully ensure the independence of our judiciary. We also have to strengthen the nation’s capacity to deal with corrupt judges and magistrates and have them prosecuted. We have to increase transparency in the judiciary. Over the last few years, it cannot be denied that our judiciary’s capacity to tackle corruption cases has been seriously called into question.
You can read the rest of the article here. The difficult question of course is how do we make judges independent? What practical reforms are needed? The challenge we face in reforming our judicial system is how to ensure that judges are independent but do not become a law unto themselves. Judicial reform must therefore be seen in terms of ensuring the branches of government (executive, legislature and judiciary) perpetually convey legitimacy on one another. So its not a question of maintaining "non-overlapping magesteria" but rather enforcing "mutual dependence without contamination".  Now the trick is finding policies that fulfil that objective. Until those are found Zambia will continue to experience poverty in this area. More on this in the monthly essay

2 comments:

  1. Again, I thought this site was meant for economic discussion and not politics. Whats going on? Has it become another Post Newspaper directing itself to politics of lies instead of focusing on real economic issues? Chola you are exposing yourself!

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  2. Please Mr Anonymous the 'websphere' is free. Why dont you start your own blog or gravitate towards those that are close to you in your values or ideology? This is a free world. Feel free to read the papers, blogs, watch the TV channels etc that you agree with. You cannot force Chomba to write articles that are 'acceptable' to you; besides it is HIS blog and he owes no one any explanation if he so choses! It is very unbecoming of you trolling the internet trying to censure people. The Post you are refering to is serving it's readership, just like the Times of Zambia the Zambia Daily Mail, the Telegraph and Guardian in the UK etc. Grow up and learn to live in a plural world. It is just weired in today's world to expect everyone to be singing from the same hymn sheet!

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