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Editorial comment of Saturday 11/03/2017: This is worse than colonial judiciary

Simon Zukas, a hero of our independence struggle, says he is very sad that the country’s justice system is currently under strong political influence.

Simon says our current justice system falls below that of the colonial era. “I am very sad, even under the colonial system, one could rely on justice being justice. Now there is strong political influence on the justice system. As far as I am concerned, politics which I have been in for some sixty something years is separate from justice. Justice should be dispensed as a separate institution. I see that here suddenly, it is being mixed…we should allow justice to take its course without political influence,” says Simon.

The concerns being raised by Simon are real and deserve favourable considerations from all of us and more so from those who govern us and those who run the judiciary. As James Madison once observed, “The accumulation of all power, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” This is true in our situation today. The abuses Edgar Lungu and his agents are engaging in are as a result of the impunity accorded to them by the judiciary. No one can stop them using the judiciary today. Every decision or action of theirs that matters will be protected, defended and advanced by a judiciary decision in their favour. And the judiciary has stopped pretending. Our judiciary today sees itself as being part of Edgar’s regime. Some of our judges even feel so insecure that if Edgar goes, they are also in trouble and may have to go or may end up in jail.
Yes, we have a Constitution that defends our rights. But our crisis is a fundamental one. All the rights secured to us under the Constitution are every day being proved to be worth nothing, and a mere bubble because there is no independent and virtuous judiciary to guarantee and defend them.

Zambia is today going through a crisis because it lacks the rule of law, and independent judiciary, and freedom of the media.  And this problem will not be solved without waging a relentless struggle because those benefitting from lawlessness will defend this lawlessness with everything they have, including state power.

Today we have a judiciary which has become part of State House. And we are not making a wild allegation. This was revealed by State House itself through the President’s press aide. A President or his aides, agents shouldn’t tell the judiciary what to do. While the seeming independence of the judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that our judiciary is part and parcel of our government apparatus and appointed by the President with the help of other people also appointed by him. Our runaway judiciary is badly in need of restraint by the President, State House. Our politicians cannot be solely relied on to protect and advance justice in this country. As we understand it, the role of the judiciary, the role of our court system, is to provide justice. There is a great danger to judicial independence when people have no understanding of how the judiciary fits in the constitutional scheme and start to think the President, because he is head of state, then everything, including the judiciary, is under his control and command. The judiciary in Zambia is not independent. It is widely known, everybody knows that.

Edgar had destroyed the rule of law in this country. Even institutions of the state such as the judiciary have been seriously weakened, to the extent that the citizenry justifiably fear a breakdown in law and order.

Talking about rights in a country that has no independent judiciary to uphold the rule of law and enforce those rights is empty promises, an illusion.

Our judiciary, if it is to be independent and of value to the great majority of our people, must be strengthened and released from political interference. And the independence of the judiciary is not a small thing because without it, all other rights become academic, mere rhetoric, empty phrases. Without an independent judiciary, there cannot be free and fair elections, freedom of speech and of the press. Even freedom of religion will soon disappear because religion will not be allowed to be independent of the state, the President. This is why today there is no freedom of the press, no freedom of speech and no free and fair elections in Zambia.

From the very beginning, the framers of our constitution were very clear in the papers and elsewhere that they felt an independent judiciary was critical to the success of the nation. But constitutions, laws and liberties live in the hearts of men and women and if they die, nothing written on a piece of paper can save them. We have an executive that has today taken over judiciary decision-making processes. And we have judges who have surrendered their duties to corrupt and abusive politicians. Why? It is all for a benefit. There is nothing being done for nothing. We have judges and magistrates that have been hired or have hired themselves out to the powerful for money, appointments, promotions, favours, protection for their own corruption. Independence of the judiciary means very little when it is reduced to a commodity available on sale to the highest bidder.

The bedrock of any democracy is the rule of law and that cannot be achieved without an independent judiciary and judges who can make decisions without fear or favour in regard to those in power. Democracy is about institutions: it is about having an independent media, judiciary and civil society organisations – you need progressive institutions to make sure that the government functions. And the crowning feature of all this is the supremacy of the judiciary over all other branches of government in matters relating to the rights of persons and property. Look at how the rights of persons and property are being violated by those in power with the help of our judiciary! Look at what is happening in this regard to Dr Fred M’membe and The Post!
We need the separation between judge and lawyers, judge and politics, real independence of the judiciary from State House, from Parliament, from money. Maintaining checks and balances on the power of the judiciary and the other two branches is vital to keep the form of government set up by our Constitution.

 

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