By Chola Mukanga
One of the most ignored aspects in Zambia’s search for meaningful development for her people is the role the judiciary continues to play in preventing economic liberation of the poor. The behaviour and conduct of Zambian judges[i] is central in eliminating widespread poverty because it is the same judges that have been at the heart of maintaining the status quo. They have achieved this through direct exploitation of poor citizens through injustice and corruption; and, indirectly shaping the political and economic landscape of the country, always acting in their self interest and always at the expense of our poorest citizens. This monthly essay is a brief exploration of this travesty; and, what must be done to build a justice system that is more pro-poor and stands with the vulnerable.
A necessary institution
The starting point in understanding the role of judges in national development is the immediate recognition that the judiciary is inherently an “economic institution”. That is to say it provides the basic foundation for economic activities in the country. Judges are to all intents and purposes as “economic” as any government agency, although the scope and depth of their reach is naturally restricted by historic, political and social factors.
A key foundation of any economy is the existence of social order which allows ordinary citizens and other economic actors to conduct their economic affairs unhindered. This social order is maintained through government structures. The existence of an efficient legal system is vital in resolving disputes and protection of societal rights. By dispensing justice through dispute resolution mechanisms, the judicial system can help reduce the prevalence of crime and insecurity which keeps vulnerable groups under dependency and perpetual poverty. Efficient legal rules can also boost entrepreneurial activity among the poor. For, example there’s strong evidence[ii] that the effective protection of property rights plays a pivotal role in enabling an institutional environment conducive to entrepreneurial activity, especially at lower levels of development.
A key aspect of justice is fairness. Judges are necessary for the emergence of a society based on equity and fair play. This is achieved through administration of the law in a manner which answers the fundamental requirements of justice, namely, fair outcomes arrived at by fair procedures. Those in society who are powerful, especially the rich, have other means of getting their way. On the contrary, the poor need the protection from the abuse of power that others are able to exercise over their lives. Their lives can only be safeguarded by a strong judicial system that deters the transgression of individual and corporate rights.
This is particularly important when one considers that a key feature of rule of law is its concept of boundedness. The law is never all-encompassing, rather it allows for significant freedom of action. Citizens can only be constrained or punished for violation of the law and in accordance with the law. Judges are “boundary riders” maintaining the integrity of the fences that divide legal restraint from freedom of action. A minimum requirement of rule of law is that rights and duties of Zambians, and the consequences of breach of any such rights and duties, must be determined objectively. Only when this is the case can Zambians interact with each other freely.
A more direct way in which judges affect the poor is through perpetuation of national plunder. Corruption is top of the national agenda and is rightly regarded as the number one vice that hurts the poor. Corruption leads to financial leakage from the economic system at great cost to the poor who form more than two thirds of the population. It disproportionately affects the poor compared to the rich, leading to larger income inequalities over time. Eliminating corruption is therefore essential to tackling poverty.
A clean judicial system can help deter corrupt practices and at its worst a corrupt judiciary can encourage even greater corruption. At their best judges can act as a check against a corrupt and predatory executive branch by asserting their independence and prosecuting cases without fear or favour. Judges can also reduce or increase the “system effect” of corruption. Corruption in institutions which are tasked with combating corruption is likely to encourage corruption in other areas, since the possibility of detection and punishment is reduced. Any fight against corruption must therefore begin with eradicating corruption in the judiciary.
Criminal activity in the judiciary sends the wrong signal to the rest of society. In line with the “broken windows theory”, dishonest judges can induce honest Zambians to try to become even more corrupt. This may start a downward spiral of ever-increasing lawlessness. This is the case even when in actuality only about 5 percent of judges may actually be corrupt. If, on the other hand, the judiciary projected an image that most of them are honest, Zambians may become more confident that they live in a law abiding society. This environment provides them with the motivation to follow others and to play according to the legal rules. A positive vicious cycle could develop leading to less and less corruption.
These issues become ever more important, when it recognised that judges develop and implement policy independent of other branches, and do so in a non-democratic way. Under Zambia’s common law legal system, judges have the ability to set precedent thereby defining more strongly how Zambians should behave and conduct their affairs in the future. Judges can even overturn existing laws passed by legislature by declaring them unconstitutional or offering wide-ranging or restricted applications. The power of precedent makes this a much stronger threat as it becomes costly for other judges in the future to overturn previous judgements, even when such previous judgements were passed by corrupt colleagues.
It also goes without saying, that judges cost money. As a national institution the judiciary is publicly funded and therefore a direct drain on national resources against other competing priorities. The poor therefore find themselves not only at the mercy of undemocratic and often corrupt judges, but also competing against these judges for the national cake. It is the serious financial implications of the situation that we must always keep under serious review the performance of the judiciary.
The treason of judges
The performance of the judiciary in Zambia over the last two decades has been systematically and deliberately anti-poor. Zambian judges preside over an unequal system of justice that panders to the whims of the ruling party of the day at the expense of the poor and silent majority.
A key manifestation of this inequality is the continuous judicial defence of poor laws and unjust practices. A recent court case involving a man who allegedly insulted the sitting president is case in point. Though the law clearly demanded some form of judicial process, it was clear that the man had no adequate legal representation and therefore could not possibly be tried fairly. The failure of the state to provide what is due to the man (legal aid) in effect undermined the administration of justice. Rather than the presiding judge noting the travesty of the judicial process and abandoning the case, he went on to sentence the man to prison. This is jungle justice. Zambian judges are maintaining an adversarial system of justice that is heavily in favour of those in government and their rich friends.
This is worrying because as employees, many Zambians confront the largest single employer in the country – the government. Similarly, a significant proportion of injured persons seek compensation from government agencies such as hospitals, police and road authorities. Government manifests its full range of commercial interests as supplier or purchaser of goods and services from ordinary people, which are as much prone to disputes over property rights or contractual terms as any other commercial relationship. If judges are captured by the government, as the evidence suggests, it makes the quest of justice meaningless. Where will the poor run to for justice?
The treason of judges is exemplified in the perpetuation of a delayed form of justice against the poor. There many cases involving poor citizens which takes eons to get heard. It is typical for a person to stay in prison over two years without having a day in the court. Judges have allowed the state to ration justice and keep people in limbo. It is too simplistic to simply say cases are delayed because there’s insufficient supply of judges. This becomes obvious when we consider that the rich usually have their cases appealed quickly and are able to exhaust the system. The reason many poor people struggle to get their cases heard or appealed 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. Judges are their only hope. Unfortunately, many of our corrupt judges are not willing or nor able to listen.
Stories of people languishing in prison awaiting trials abound. A certain tailor was incarcerated at Lusaka Central Prison for accepting money from a woman who wanted him to make her a chitenge outfit, but failed to return K70,000. The aggrieved woman told the police and suspect was arrested with no prospect of trial. Just another common story. Equally common is that cases involving the rich are decidedly speedily. Sometime cases such as challenging the authority of the Chief Justice can be decided within days. Among our poor however it can take months from the time of arrest to when the accused appears before any judicial officer. Reverend Matele (CCZ) echoed this point when she said, "it has been noticed that the rich, the powerful and famous appear to be above the law and go scot-free while the poor languish in prison”.
The delay in the execution of justice has led to prisons bursting at the seams with humanity. Penitentiaries built by imperial Britain to hold a few hundred are now overcrowded with thousands. Lusaka Central Prison, built in the late 1950s for about 300 inmates, is crammed with about 1,800 inmates, many of them untried in a court of law. One remandee recently noted, “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”. The reason for this shameful state of affairs is that the wheels of justice turn slowly. 35% of the national prison population is made up of inmates who judges have stalled their cases due to inefficiency and poor case management. Nearly all those on remand are the poorest of the poorest in our society. Is this what we call justice?
These problems can be averted if the judiciary was able to assert its independence and demand better justice. In practice, the opposite has happened with judges encouraging the erosion of independence. Recently judges supported legislation which has given the President arbitrary powers to alter the number of judges in the Supreme Court and High Court benches, even when such proposals were opposed by all well meaning Zambians. These changes seriously undermine the independence of our judiciary and turned it into a personal toy of the sitting president.
It is no surprise therefore that judges continue ever willing to perform job functions outside their expertise as they seek greater political influence. The absence of specific policies on the use of judges has given some judges the necessary cover to accept political jobs outside regular duties, which has not only depleted the number of judges but also compromised the independence of the judiciary. It is now customary to see a judge sitting as head of the Electoral Commission of Zambia (ECZ) and also presiding as a Supreme Court Judge. When one considers that the Chief Justice is the returning officer, it becomes clear that the entire electoral process is tainted from the beginning.
A major reason the judiciary suffers from inertia is corruption, especially in form of nepotism[iii]. Under the current administration there have been deliberate attempts to fill the judiciary with well-placed relatives and friends. In one of the most celebrated exchanges at the Supreme Court in 2010, Mr Chilekwa was sentenced to prison for contempt of court. His “crime” was claiming that the Supreme Court was run from a single village, a point he was keen to share with the bench. Speaking before Justice Mambilima and Justice Mwanawambwa, Mr Chilekwa observed, “I am reliably informed that......there was a clique from one village that was hard to permeate. The people who come from one village are Chief Justice Ernest Sakala, Prof Mvunga, the President Rupiah Banda and the Deputy Chief Justice Ireen Mambilima. All those outside that circle cannot be heard.” The forum was unfortunate but his statement is not too far from reality. Perhaps if he had stopped there, they would have let him go, but Mr Chilekwa, clearly upset at how the court had dealt with him went on to report that his lawyer had advised that it was pointless to have confidence in the courts because it was full of “stupid judgements, by stupid judges”. Ironically, the court sentence he was given neatly proved his point because he was sent to prison when clearly what he needed was proper legal representation and lessons in how courts operate.
Few would dispute the judiciary is nepotistic, even fewer would dismiss that it is characterised by rampant theft and mismanagement of state resources. Not too long ago, it was reported that significant sums of money was missing at Chipata High Court. A separate report by Auditor General catalogued gross financial mismanagement and abuse at the Judicial Service Commission (JSC). There were cases of failure to prepare financial statements; procurement misdeeds; and blatant abuse of public funds. The cumulative financial misapplication was a staggering K6.1bn in 2008 alone. No public cries in the media because wronging the judiciary in a country where the government can arrest you for bouncing cheques or insulting the president is not wise. So people have learnt to quietly mind their own business. In the meantime judges continue oppressing the poor and stealing from national coffers.
In rural areas, wide financial abuse is only rivalled by open bribery. Chief Chisunka[iv] has previously bemoaned how bribery of local courts is damaging the quest for justice in Luapula: “they [court clerks] are in the habit of ‘eating’ clients’ money. When one brings money to court after being charged, the officers get it. When an inquiry is made, they run away. The provincial local courts office was recovering money through a salary from one of the clerks... They have run away from the centres due to debts from the clients. Others have run away with millions of kwacha. It’s like they were born from one parent....Its too much...”
The situation in our judicial system can only be described as perilous. It has never been more urgent to undertake major surgery. But, where do we begin?
A challenging but necessary journey
The pursuit of reform must start with the inevitable conclusion that all is not well with our judicial system. It is in much need of reform. The key is to change the incentives for good performance from the judiciary. This would require that we put in place reforms that achieve two things: reward good decision making within the judiciary; and, ensure that reforms allow citizens to kick out poor performing judges. There five simple and inexpensive ideas we can start with.
First, review of pay and tenure structures. There would need to be a serious review of the pay structures of judges, accompanied by clear service agreements between judiciary and the Zambian people. How such structures are designed would be critical, but what is clear is that judicial independence is heavily shaped by tenure security of judges and other officers. For example, 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.
Secondly, undertake significant constitutional reform. Judges must be strictly subject to the constitution and law and should not be subject to the control or direction of any person or authority. Associated measures must be put in the constitution to establish and protect judicial independence. Such measures should include the financial independence of the judiciary by making it a self-accounting institution which will prepare its own budget and deal directly with the responsible Finance minister. Similarly, the JSC should be revamped to ensure that it reviews and submit recommendations for the pay and other conditions of service of judges to a separate independent commission overseen by Parliament.
Thirdly, reform the vetting process. There’s need to for new measures and procedures for appointment of judicial officers, including acting appointments. Particularly crucial is the reform of the ratification process for the appointment of the Chief Justice and the Deputy Chief Justice as well as other judges of the High and Supreme courts.
Fourthly, improvement in competition. A key problem with the judiciary is that top judges are not recruited based on open competition. They are presidential appointees and therefore only too eager to plead for their master at every turn in case they lose their jobs. This needs to change to allow fresh blood to be injected in an old and corrupt clique.
Finally, development of new measures aimed at tackling corruption. It is vital that ways are found to check corrupt activities, especially given the fiscal constraints of the republic. Regularly subjecting the institution for external and independent audits and firing corrupt judges is vital in projecting a lawful society and cutting waste.
Chola Mukanga is the founder of Zambian Economist which provides independent and non-partisan perspectives on Zambia's progress towards meaningful development for her people.
Copyright: Zambian Economist, 2011
[i] We use the term “judges” to broadly include magistrates and other judicial officers at the lower level
[iii]For a full discussion of the forms of corruption, see “Understanding Corruption in Zambia” http://www.zambian-economist.com/2011/04/understanding-corruption-in-zambia.html