Incertitude circumambienting judicial independence: to whom should the judiciary be independent from?


The judicial authority of the Republic comes from from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability. This authority vests in the courts and must be exercised by these courts in accordance with the Constitution of Zambia and other laws of the country. From the above, discerned from Articles 118 (1) and 119 (1) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by Act No. 2 of 2016, the judiciary as an agent of the people of Zambia from whom it derives its authority is only answerable to the people of Zambia through the Constitution as the supreme law of the land and any other laws promulgated by the peoples’ representatives in Parliament. In this article, the term judge also refers to magistrates.

Facets of judicial independence

The Constitution of Zambia envisages two facets of judicial independence namely: functional and financial independence. Functional independence requires that the judiciary’s operations in the pursuit of attainment of its constitutional mandate are not interfered with by any person or body. This requires the absence of both internal and external interference. Internal interference entails that judges, both individually and collectively, exercise independence from themselves and external interference. A judge must thus assert his or her own independence from his or her peers as well as from external forces. Once a judge exercises individual independence then that may culminate into independence of the judiciary as a whole.

By Article 122 of the Constitution, in the exercise of the judicial authority, the Judiciary is expected to be subject only to the Constitution of Zambia and the law and not be subject to the control or direction of any person or authority, both internally and externally. To attain functional independence, the following must be adhered to:
i. No person, be it private or one holding a public office, must interfere with the performance of a judicial function by a judge or judicial officer.

ii. The Judiciary must not, in the performance of its administrative functions and management of its financial affairs, be subject to the control or direction of any person or authority.
iii. All persons, be it private or one holding a public office, must protect the independence, dignity and effectiveness of the Judiciary.

iv. The office of a judge or judicial officer must not be abolished while there is a substantive holder of the office.

The second limb of judicial independence is financial independence as stated above and as found under Article 123 of the Constitution. Under this, it is instructive that the judiciary must be a self-accounting institution and shall deal directly with the Ministry responsible for finance in matters relating to its finances. It is also a requirement that the Judiciary must be adequately funded in a financial year to enable it effectively carry out its functions. If the judiciary is starved financially, its independence seems to be a far-fetched dream as it is said that “he who pays the piper plays the tune”.

Other paramount aspects of judicial independence

There are other aspects of judicial independence that encompass the two facets propounded above. It must be noted that for the independence of the judiciary to be a reality rather than a myth, a holistic approach must be taken to address the following cardinal issues that directly impinge independence of judges as espoused by the Joint Colloquium on “Parliamentary Supremacy and Judicial Independence…towards a Commonwealth Model:

i. Remuneration of judges which must be done by an impartial and non-political remuneration commission.
ii. Improved, competitive and sustainable conditions of service for judges.
iii. Competence of judges through specialised training and continuous professional development programs.
iv. A well-articulated and properly defined mode of the removal of judges which if possible, must make judges serve as long as they are of good behaviour.
v. A well-articulated code of conduct to govern behaviour of judges.
vi. Merit-based appointment of judges and judicial officers.
vii. Performance benchmarks to rate judges performance internally and promote according output, experience and qualifications.

Tenure quamdiu se bene gesserint

The drama that followed the election of Michael Chilufya Sata as Republican President in 2011 and the “purge” that followed in the judiciary reignited the debate on the tenure of judges. The tribunal led by Judge Lovemore Chikopa of the Malawi High Court was set up by President Sata in April 2012 to investigate alleged misconduct of three Zambian judges over the handling, among others, of the defunct Zambian Airways case before them. The discredited tribunal which was dissolved by Sata’s successor resulted in the lifting of the suspensions of the affected judges while one judge was forced into retirement prior to the death of President Sata. Many believed and still believe that the tribunal was nothing but a charade aimed at interfering with the independence of the judiciary and purging of judges seen not to be “friendly” to the Patriotic Front and its allies.

Tenure quamdiu se bene gesserint emanated from the Act of Settlement of 1700 and entails that judges must hold their offices as long as they are of good behaviour. This is what Sir Edward Coke SL referred to as “an estate for life determinable upon misbehaviour.” The good behaviour standard ensures that there is a life tenure for judges who have immunity from being removed on flimsy grounds or politically motivated schemes. The judge also enjoys security of tenure for life as they do not panic as to what awaits them after retirement.

Judicial independence over a corrupt judiciary

It is trite law that judicial independence is paramount and overrides any form of misconduct or corruption among judges. In the wisdom of the law, it is better to have a judiciary warped with corruption and incompetence than have one, which is not independent. Crompton, J. in the celebrated case of Fray v Blackburn 3B and S.576 opined that:

It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though, it be alleged to have been done maliciously and corruptly… The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions.
Winfield and Jolowicz on Tort 10th Edition at page 596 comments as follows:

If it were otherwise, the administration of justice would lack one of its essential -the independence of the judges. It is better to take the chance of judicial incompetence, irritability, or irrelevance, than to run the risk of getting a Bench warped by apprehension of the consequences of judgments which ought to be given without fear or favour.

This position was affirmed and followed in Zambia in the case of Godfrey Miyanda v Matthew Chaila (Judge Of The High Court) (1985) ZR 193 (HC) and most recently in the case of John Sangwa v Sunday Bwalya Nkonde SC 2018/HP/1029.

To whom must judges be independent from?

Judges must be independent from themselves first. They must avoid the urge to be influenced by internal and external forces as individuals in the discharge of judicial functions. They must not be influenced by colleagues at the bench to act in a particular way. They also must not be influenced by either political or pecuniary motivations in the discharge of those functions. And when judges are independent as individuals then they will be independent collectively as a whole – the judiciary. As Andrew Jackson warned “”the constitution is worth nothing and a mere bubble except guaranteed to them by an independent and virtuous judiciary.” Caroline Kennedy also weighed in on this when she opined that “the bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”

Joseph Chirwa is a law lecturer and legal scholar and researcher at the University of Lusaka where he currently teaches Administrative Law. He is the author of the book Commentary on Public Law in Zambia: Law, Politics and Governance published by Juta in 2020.

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