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Friday, 4 October 2013

Why The Law Matters For Zambia's Development

Michael Hobbes in his recent piece "Why Is #Zambia So Poor? And Will Things Ever Get Better?" powerfully observes :
"There are so few judges in the courts that people have reportedly waited in pre-trial detention for up to 10 years...Take lawyers. Zambia only has 1,000 of them, and they’re concentrated where the money is: Lusaka (government), Copperbelt (mining) and Livingstone (safari tourists). Some provinces don’t have any lawyers at all. The government operates a kind of legal bookmobile, a team of lawyers that travels around the country offering basic services, but it only comes to each province once every two months. If you miss it this time, you’re out of luck until it returns. Last year, only six lawyers were admitted to the bar out of 164 who took the exam. The year before that, it was 16 out of 145" (Source : Pacific Standard Magazine)
Yet despite such observations the poverty of our legal landscape remains one of the most overlooked aspect of the development story. The reason is that people don't really understand why lawyers and judges are important to economic development. They see it largely as a political issue rather than an economic one. As a result underinvestment and mismanagement continues to exist in this area.

There two reasons why as a Zambian economist, I am very passionate about reforming the legal landscape. First, lawyers and judges are vital to economic growth. Or to put it differently, the legal system is inherently an “economic institution”. It provides the basic foundation for economic activities in the country. Lawyers and judges are to all intents and purposes as “economic” as any other part of the nation, 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 and accessible legal systems can also boost entrepreneurial activity among the poor. For, example there’s strong evidence 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.

Secondly, the lawyers and judges are vital in fostering development because they promote promote equality and fairness - key components of development. Lawyers and 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 and improved 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 that it is never all-encompassing. The law 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” who maintain the integrity of the fences that divide legal restraint from freedom of action. Where judges do not perform their duties objectively the rights of the poor are trampled on and development is negated.

Sadly our nation is characterised by inefficient supply of lawyers coupled with  corruption and mismanagement of the judiciary which as led to a system that is anti-growth and decidedly anti-poor. This is particularly exemplified in the perpetuation of a delayed form of justice against the poor. As Michael Hobbes notes in his piece, there many cases involving poor citizens which takes years to get heard. It is typical for a person to stay in prison over two years without having a day in the court - and sometimes even up to 7 years!

Judges have colluded with the State to ration justice and keep poor 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, our judges are politicised, incompetent and corrupt. They are not willing nor able to listen to the cries of the poor.

Chola Mukanga | Economist
Copyright © Zambian Economist 2013

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