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Friday, 15 July 2011

PF Manifesto : Judicial Reforms

What are the main specific policy proposals?

The following are the specific PF proposals on judicial reforms :
  • Establish a constitutional court;
  • Introduce legislation to confer the power of establishing a tribunal for purposes of investigating any case of misconduct against any sitting judge by the National Assembly in order to ensure transparency;
  • Enhance the security of tenure of judges and magistrates;
  • Establish additional principal High Court registries in order to make the delivery of justice accessible and less costly to the ordinary person;
  • Establish Resident Magistrate Courts at all District Headquarters;
  • Establish and recognize traditional courts under traditional rulers as the first level court below the local court in the judicial hierarchy;
  • Construct additional infrastructure, especially court rooms at all levels;
  • Upgrade lay Magistrates to professional magistrates through in-service training;
  • Introduce the clerking system for all Supreme and High court judges.
In addition to the above there are generic proposals related to the introduction of meritorious progression system; strengthening the judicial appointment process; and ensuring greater independence of the judges. However, no concrete proposals are outline to put meat to these aspirations.

What is the rationale?

The PF rationale for the above proposals rests on eliminating two things:
Poor access to justice: current access to justice is unequal and costly to the poor. This is especially so in rural areas. The court system is not only congested but it is mired in corruption and bureaucracy.
Poor public confidence: the public has lost trust in judicial system, partly fuelled by daily experience but also the politicisation of the judiciary in recent years, especially as seen in high profile cases involving corruption. Justice is not seen being done.

What is our main assessment?

There some important proposals being put forward by the PF. The most interesting is the proposal to “recognize traditional courts under traditional rulers as the first level court below the local court in the judicial hierarchy”. This is most welcome and would fix an unresolved area since independence.

Before colonialism Zambia was essentially operating with traditional laws as the source of practices and customs for our people. During the colonial era, the British employed a dual system of law which saw English applied in areas affected directly by their rule but traditional law was used in areas under “indirect law. Native Order-in-Council had already established native courts presided over by chiefs. Throughout the colonial period, traditional law was retained, although during that period gradual transformation took place which saw certain aspects of traditional law effectively constrained by new legislation (e.g. execution of witches).

This all changed after independence with abolition of native courts, which were now reconstituted as local courts under the Local Court Acts (1966). They were originally intended to be the lowest in the judicial system, administering traditional law with a Zambian character in terms of jurisdiction, as opposed to the previously more limited tribal / terroritorial jurisdiction of the native courts. Unfortunately, the traditional courts were not integrated into this new dispensation and up to this day they still operate parallel to the centrally administered judicial system. Traditional courts continue to have a common jurisdiction with the local courts in traditional matters. In many of villages, a traditional court sits in various forms, including councils of village elders, clans, family tribunals and village associations. It is imperative that this is resolved and the PF proposals are the first step in that direction though careful thought would be needed on implementation.

Another issue which will need careful handling is the proposal to “construct additional infrastructure, especially court rooms at all levels”. We have touched on many times how the courts are crowded which has led to many to many people languishing on demand. The current government has committed to undertaking some court improvement programme but this is not having any tangible results on the ground. The PF commitment is therefore welcome, but it will need much deeper thought than currently proposed. The main problem is that the issue of court congestion is multi-dimensional. Simply increasing court capacity without increase in number of magistrates would not solve the problem. Equally increase court capacity at the lower level, as currently proposed, may lead to increase in cases at the appeal level leading to more congestion in the High Courts.

This brings us to the main problem – the glaring consideration of “prison policy”. There’s no single mention in the manifesto on prison reform. This is surprising considering that greater court capacity will only lead to more overcrowding. Unfortunately, PF lack of consideration of wider justice issues does not stop there. In the manifesto there’s also no mention of police reforms. Prisons and police are vital areas that require any incoming government to make clear what its position is!

To sum up, the PF reforms with respect to the judiciary are sound, especially if combined with governance and legal reforms that emphasis a renewed fight against corruption. However, there’s need for PF to think broader than the judiciary. What Zambia needs a White Paper on Justice Reform that will set out clearly how government sees justice reform taking place. In particular, there’s a strong need to tackle the prisons crisis and restore public confidence in policing authorities. We have touched on these issues in our monthly essays.

Related Posts :

MMD Manifesto : Judicial Reforms

Zambian Economist is currently reviewing manifestos of leading political parties in Zambia. All posts in this ongoing review can be found at Manifesto Analysis.

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