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Monday, 20 February 2012

Is the jury system the answer?

Legal expert and author Mulenga Besa recently called for the judicial system to be restructured by introducing a jury system in order "curb corruption and restore confidence in Zambia’s legal system".
Mr Besa said while the recent calls to reform the judiciary were legitimate, the solution did not end at removing Chief Justice Ernest Sakala. "What has been the problem? Is it individuals or is it the system? There have been these calls to retire the Chief Justice but does it end there? He proposed that Zambia needed a jury system so that an independent panel would sit to assess the facts of any given matter. Mr Besa said a system where the judges did not sit as assessors of both the law and facts of matter before the courts should be introduced. Mr Besa, author of Constitution, Governance and Democracy, said the judiciary was an important arm of any functional democracy. He said as one of the three arms of Government, the judiciary was critical in resolving conflict in society.
The fundamental problem with this idea is that it does not solve the two problems it is designed to address. Curbing corruption would not be eliminated by a jury system because much of the problem with corruption is detection and speed of conviction. A jury may actually lead to longer trials. Increasing confidence in the justice system would not come with piecemeal reforms, it comes with holistic reforms - we have previously put forward a paper - see A Poverty of Zambian Justice.

The other problem is that Mr Besa has not considered the practical challenges of a jury system in Zambia as well as the costs of setting one up. There there's the obvious point that the jury would not be beyond corruption. Posner has rightly noted that in the quest to reform the judiciary, it is more efficient to consider "rules (laws) first" before structural reforms. The advice is germane to Zambia because we have no money, and the little money we have should go to helping the poorest directly not feeding rich jurors as they deliberate.  

But Mr Besa's comments are not totally irrelevant. It reveals what we already know about lawyers - they do not have a sufficient grasp of the efficiency of law. Ensuring not only laws that are fair but are economic efficient. Which is a worry because the current constitution committee is full of legal experts without a grasp of the concept. Don't expect laws that are efficient and delivered at least expense to the tax payer.

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