The Judiciary in Zambia is in crisis. The words of lack of Judicial autonomy and independence in Zambia are on everybody’s lips during this time in the life of this nation. The solution to this crises largely now partly lies with the Judiciary itself. The purpose of this submission is to broach how the solution of the Judicial crises is partly dependent on the judiciary itself. On another occasion, I will submit how Judicial appointments could be reformed to further provide a remedy for judicial crises.
Former Chief Justice Ernest Linesi Sakala provides in my view the best articulation of how the solution to the current judicial crises lies within the judiciary itself and the Zambian Judiciary ought to sit up and listen. The analysis comes from Chief Justice Sakala’s LLM dissertation which is entitled, “Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges”(2000). I say the best because I have read and written a lot about this topic and when I did my 589-page book entitled, “The Politics of Judicial Diversity and Transformation”(2012), I had to plough through the thicket of the literature on judicial autonomy and independence from around the world.
Anybody can write a book on anything but this one shows through the literature surveyed and information deployed through interviews and access to materials from other judges around the world, that the person was in the furnace so to speak when he researched and wrote the Dissertation. I have listened to a lot of Chief Justices give speeches and have read many judicial speeches on this same topic but most of these are mere cliches, formulaic, platitudes, and rehearsed and amount to a hill of beans. Chief Justice Sakala’s stands out as different; it is an extraordinary piece of work.
Chief Justice Sakala reminds us that the concepts of autonomy and independence of the judiciary, though in the independence constitution, were hardly acknowledged until at least twenty years after independence (p.265). The reason given is that “the absence of autonomy was a colonial hang-over as well as a traditional practice. The judiciary under colonial rule was considered as part of the public service. Hence , autonomy of the judiciary was not considered necessary because a public servant performed both administrative and judicial duties”.
There was an attitude also by post independence governments to treat the judiciary as mere appendages of the state, to be silent ornaments and not to be heard loudly pronouncing any notions of autonomy and independence. But the judiciary from time to time could flex its muscles and the governments, regardless of whether they were one party or multiparty states, abhorred judicial autonomy and independence. Chief Justice Sakala presents many examples of when the executive and their cadres clashed with the judiciary because the judiciary ruled against the executive and the state. Some of the cases include the Mulundika case when the Supreme Court struck down a section of the Public Order Act which gave powers to the police to in fact superintend over democracy. Parliament largely reinstated the status quo where the police still perform an obstructionist role.
“During the colonial administration, no distinction existed between governmental and judicial practices. The culture of the time did not create controversial situations which would have warranted calling upon the judiciary to assert its independence. In short, there were no ‘hard’ cases”(p.276). The situation changed after independence. Initially it was the all-white judiciary which was quite docile during the colonial era that all of a sudden decided to react to political censure after independence trying to assert its autonomy and independence. President Kaunda for example reacted angrily when a ruling party official was sentenced to 12 months for contempt of court. The government also rose up in arms against the judiciary when convicted Portuguese trespassers or would-be “terrorists” were set free after initially being convicted and sentenced to two years imprisonment. In each of these cases, the judiciary did not back down and Kaunda had to apologize for disparaging the judiciary and therefore undermining their autonomy and independence. The Judiciary stood firm and took a stand. Since when has the Judiciary in modern times stood firm to disabuse the President or any person about any direct or indirect interference? Silence can be seen as acquiescence in times.
Judicial autonomy and independence are constitutionally and statutorily protected. However, according to Sakala, constitutional and statutory protection of these values has not protected the judiciary from political attacks and criticisms. And it will not stop. Justice Sakala in a pioneering finding never before revealed by any justice or scholar, writes that given their autonomy and independence written in the constitution and various statutes, “the problem seems to be that many times the judiciary has in reality not been assertive enough”. “As a result of the lack of adequate self-assertion, the executive , the legislature, and the public have not refrained from apparent, direct or indirect interference and attacks on the judges through derogatory comments, often made in bad taste with clear motive of intimidating the judiciary in ‘politically sensitive’ cases before and after judgment”. (P.v).
The kernel of judicial autonomy and independence lies embedded in the attitude of the individual judge. Collectively that judicial attitude can be indestructible. As early as 1740, and before (Thomas More) Lord Mansfield as quoted by Sakala expressed the clearest view of what an incorruptible, autonomous and independent judge and judiciary looks like when he stated,: “I will not do that which my conscience tells me is wrong, upon this occasion to gain the huzzas of thousands, or the daily praise of all papers which come from the press. I will not avoid doing that which I think is right, though it should draw on me the whole artillery of libels, all that falsehood and malice can invent, or the credulity of a deluded populace can swallow…….once and for all, let it be understood that no endeavours of this kind will influence any man who at present sits here”.(p. 283). Can this be said of the Zambian judiciary? Can we find men and women to appoint in Zambia that have this mettle? Are the “Beautyful Ones Not Yet Born?” as the title of a novel states!
Chief Justice Sakala advises, “in every jurisdiction where the principles of judicial autonomy and independence are valued, courage, character and learning are the attributes which equip the judge for an attitude of autonomy and independence in the dispensation of justice. Where these attributes are lacking, judges fall easy prey to the devices of those who are bent on eroding the autonomy and independence of the judiciary, whatever the institutional safeguards erected. The courage, autonomy and independence that are enduring lie in the will and ability of the judge to decide according to the facts and the law whatever the external pressure and the consequences”. (P. 283). Do we have this embodiment in the judiciary in Zambia at the moment?
“Judicial autonomy and independence is not an end in itself but is a means to promote impartial decision-making and to preserve the supreme law of the land as embodied in most constitutions against encroachments”. (P. 269). Indeed Chief Justice Sakala boldly states that judicial autonomy and independence is there in order to preserve multi-party democracy. He states, “The real challenge for the judiciary today in Zambia in relation to judicial autonomy and independence is whether it will continue with the spirit of asserting these principles which are so noble in the maintenance of the rule of law and good governance”. (P.284). “The greatest challenge now is the quality of those who sit in judgment”. “The attitude of individual judges themselves asserting their own independence, particularly in politically sensitive cases”, (p. 314) is the fulcrum upon which democracy rests.
The Judiciary cannot let others speak on its behalf. The Judiciary can no longer state that they can only speak through their judgments. This is an outmoded sign of timidity which no longer exists in any democracy. In Kenya recently, Chief Justice Maranga directly addressed and confronted President Uhuru Kenyatta when the latter tried to intimidate the Judiciary when it ruled against him. In South Africa, Chief Justice Mogoeng set a public appointment with President Zuma to personally tell him that his government’s attacks on the Judiciary were beyond the pale. In Canada, Chief Justice McLaghlin publicly feuded with Prime Minister Harper when the latter tried to bring the administration of justice into disrepute. That is the modern way to do things and not hinder under the cover of ancient traditions.
Chief Justice Sakala wrote: “This Dissertation is testimony that there is no age limit to continuing education. It is a jubilee contribution towards the ongoing debate on judicial autonomy and independence. It is intended to make judges aware that their independence largely depends on them.” Can the future Judiciary internalize this spirit of judicial autonomy and independence for the salvation of Zambia? FIAT JUSTITIA RUAT CAELUM.
Dr. Munyonzwe Hamalengwa is a Senior Lecturer in Law and teaches Graduate Research Methodologies in Law; Criminal Law and Company Law among other subjects. He has written a book entitled “The Politics of Judicial Diversity” and is now working on another entitled “The Book On Judges”.