There is no doubt the Kenyan judiciary has achieved some very high standards that deserve recognition and emulation.
And as it has been acknowledged by former Kenyan chief justice Dr Willy Mutunga, some Zambians – Prof Muna Ndulo, Prof Chaloka Beyani and justice Frederick Chomba – made gigantic contributions to these very progressive changes that took place in the Kenyan judiciary. So, we have the intellectual capacity required to change our judiciary for the better; what is seriously lacking is the political will to do it.
When Amos Chanda threatened that if some of our judges do not change their conduct, Kenyan-type judiciary reforms will be introduced, he had a point. But it was a matter of a correct conclusion from wrong premises and as such he was rightly criticised and condemned. We have no sensible alternative but to go the Kenyan way. Our judiciary is too inadequate in many respects to meet the needs and demands of our increasingly diverse and competitive social, cultural, economic and political interests.
Our judiciary, if left like this, will help to tear us apart. In a multiparty political dispensation and plural society, citizens are free to possess a variety of sometimes contradictory desires. People want safety yet relish adventure; they aspire to individual freedom yet demand social equality. And many of these tensions, even paradoxes, are present in every democratic society. This democracy we are seeking, yearning for, therefore, is in many ways nothing more than a set of rules for managing these conflicting desires, interests within certain limits and in a manner that all sides accept as legitimate. An overemphasis on one side of the equation can threaten the entire undertaking. And this is where the need for an independent, efficient, effective and orderly judiciary comes in.
But can our judiciary be said to be independent, efficient, effective and orderly to satisfactorily adjudicate these tensions, conflicts? Those in it, those running or controlling our judiciary are perched on the defensive and would say it is sufficiently independent, efficient, effective and orderly. Looking at the way our judges and other judiciary officers are appointed, promoted and remunerated, there’s no way we can generally expect them to be independent. Our judges are appointed in the most secretive or non-transparent manner. To start with, no one knows when there are vacancies in the judiciary – there are no advertisements.
Whatever the pretensions, our judges are basically appointed and promoted by the Chief Justice and State House. The Judicial Service Commission, which is their creation, simply rubber-stamps their choices. And this is how we have ended up with this disastrous Constitutional Court bench of highly questionable characters and decisions. How were those judges appointed? What was the criteria? The same questions can be asked of the Supreme Court, Court of Appeal and many High Court appointments. It’s an entrenched system of patronage, nepotism and corruption.
Even the Judicial Complaints Commission is constructed in the same patronising, nepotistic and corrupt way – removing any possibility of accountability.
It’s not possible to have an independent, efficient, effective and orderly judiciary if judges and other judiciary officers are not appointed in a transparent and accountable way. In a word, we don’t have a truly independent judiciary in Zambia. And a judiciary that lacks independence cannot recruit the best in terms of integrity, ethical and intellectual capacity. Our current system of appointing and promoting judges is non-transparent; it’s too dependent on the personal likes and dislikes and prejudices of the Chief Justice and State House; and the consultation process is wholly opaque and unknown to the public; and meritorious lawyers are overlooked for undisclosed reasons. In this way, pliant individuals are appointed judges or promoted to high judiciary offices.
It shouldn’t be forgotten that it is the independence and manner of appointment of our judges that makes us have trust and confidence in the judiciary and its decisions.
Thomas Jefferson, in a 1776 letter to George Wythe, stated, “The judges… should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends, they should hold estates for life in their offices, or, in other words, their commissions should be during good behaviour, and their salaries ascertained and established by law…The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that.”
The bedrock of our multiparty democracy and plural society must be the rule of law and that means we must have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.