It is my submission that televising, video taping, audio taping and or controlled public ZOOM participation of or in Constitutional Court proceedings would enhance rather than diminish public confidence in the judiciary (and administration of justice) that is tasked to adjudicate on important constitutional matters affecting the affairs of the nation in matters of democracy and good governance.
The absence of and resistance to televising, video taping, audio taping and controlled public ZOOM access to judicial proceedings, especially of the Constitutional Court, in the modern age is tantamount to promoting closed and secret justice that is anathema to transparency and accountability, judicial proceedings that are not amenable to monitoring and evaluation. The Constitution is very clear. The judiciary derives its power from we the people of Zambia. But this is hollow in modern times if we the people of Zambia cannot participate in constitutional court proceedings in real time or delayed times through television, video tapes, audio tapes and controlled ZOOM access so that we the people can see inside in real time the performance of our judges and lawyers. The background to this submission is the unprecedented documented, observed and researched perception that a cross-section of the articulate Zambian population exhibit lack of confidence in the outcome of judicial proceedings issuing from the Constitutional Court of Zambia. Mr. Paul Moonga of the Patriotic Front (PF) recently raised a storm when he suggested that the ConCourt judges could fall prey to corruption in the current dispensation thus doubting the integrity of this branch of the judiciary. Was he speaking as a loose canon or as a representative of a thread of thought within the PF? Academics from the University of Zambia have queried the legal groundedness of the jurisprudence coming out of the ConCourt. That critique comes from the finest of academic tradition and ought to be taken seriously. It is my submission that the only way to inspire and resuscitate any confidence in that court is to televise, video tape, audio tape or allow controlled public ZOOM access to ConCourt proceedings. Since the judiciary cannot answer directly Paul Moonga’s observation or the Academics’ critique, let the public see for themselves through the means I have identified herein. A long time ago, a jurist stated that justice must not only be done, it must also be seen to be done. He or she was talking about the substance and process/procedure of the dispensation of justice. In that oft-quoted mantra natural justice, that is the right to be heard was also embodied. It is my submission that in the modern parlance, “justice must also be seen to be done” would include public participation in judicial proceedings through television and other means that I have given above as the only effective means of monitoring and evaluating the judiciary in the dispensation of justice in real time. I will be using some words repeatedly like “real time” to emphasise the point or points.
Currently it is laid out in jurisprudence that the public already has access to judicial proceedings through the concept of open access to the court by anyone and through media reporting. Indeed anyone can walk into court, find a seat and observe.
Indeed the media can and do report judicial proceedings. This however, was sufficient for the bygone era anchored in morals of the bygone era when court proceedings were shrouded in mystery and it was behaviour unbecoming the judiciary to allow public broadcasting of its proceedings and debase the image of the judges, justice and judicial proceedings. The few that attended qualified as access to the courts by the public. In those days and even now, how many people could simply walk into court from the street and observe judicial proceedings to stand for open concept public access. Then and now most people would be at work or in remote areas far from the epicentre of judicial proceedings. This was a myth. It still is. But people can watch television or videotapes etc in real or delayed time wherever they are and evaluate for themselves. They can even watch on their cellphones anywhere they are. Imagine now if anyone claimed that ZNBC and radio stations located in Lusaka as in olden days were sufficient public access to the media for the whole Zambia. He would be laughed out of court. Now we have TV and radio stations throughout Zambia. We have TVs and radio stations from around the world in our cellphones and TVs. Extend that to public access to judicial proceedings. We can’t televise them etc in spite of the communications revolutions all around us! Press coverage of judicial proceedings is not the same as personal monitoring and evaluation of judicial proceedings through televised, video taped etc proceedings. Media coverage could be biased and doesn’t cover everything including judicial reactions and witness behaviour and lawyers presentations. Televised, videotaped etc proceedings cover the whole spectrum. Media coverage through reporters as representative of public access has always been a myth and has outlived its time and usefulness.
The last two presidential election petitions in Kenya were televised and Kenyans and the whole world were able to monitor and evaluate for themselves in real time the incredible performance of the judiciary, lawyers and witnesses in those petitions. Were judicial proceedings brought into disrepute by televising? No. Anyone can go back and watch on Youtube and will find only the enhancement of the reputation of the judiciary and the lawyers by that process. All the arguments opposed to televising judicial proceedings fall by the wayside when you watch the televised judicial proceedings of the Kenyan presidential election petitions. They were massive educational projects about the judiciary and the legal profession in real and everlasting time. The Kenyan judiciary would have been the laughing stock of the entire world if it did not overturn the presidential election declaration of 2017. The evidence of rigging and impropriety were exposed in public. There was public accountability. There was public monitoring and evaluation. Now imagine the cleansing effect it would have had if the proceedings of the Zambian Presidential election petition of 2016 were televised. The educational value alone would have been worth the experiment. Let alone the possibility of a different outcome because of the transparency of the process. Judges rightly protect their reputation and would not want to butcher justice openly ventilated through televising etc of judicial proceedings. Aside from constitutional matters, is there any evidence that the televising of the Derek Chauvin trial in the US, the televising of the O.J Simpson trial in the US or one closer home, the Oscar Pistorius trial in South Africa brought disrepute to the judiciary and the administration of justice? Not at all. The reputation of the judiciary and justice on the contrary were enhanced through this public monitoring and evaluation process. The reputation of the Constitutional Court of Zambia could be enhanced through the process of televising, videotaping etc of its proceedings involving the already accumulating petitions concerning the 2021 elections. There are three new judges there. They should be exposed to televising etc of their performance from the very beginning. Judges make just and transparent decisions when their proceedings are televised for the whole world to monitor and evaluate. Lawyers perform better. Just watch the Kenyan process. Witnesses perform better. Judicial proceedings in the Supreme Courts of the US and Canada are broadcast through CPAC and are a marvel to watch. Zambia won’t be alone in moving towards televising its judicial proceedings in the ConCourt. The world has changed. Advertising by lawyers in the common law world was prohibited. That is no longer the case including in Zambia. Contingent fees were not allowed in Canada until in the recent past as part of the move to promote access to justice. Contingent fees are a vehicle to promote access to justice as Canada and the US found out. Subjudice rule is no longer enforced in Canada and the US because judges and juries are treated as mature and independent enough to make decisions on evidence heard in court and not through the rumblings of lawyers and the public out of court. In short, the world has changed and is changing. In Zambia, my submission is that justice in the ConCourt will be enhanced if the constitutional matters adjudicated therein are subjected to public scrutiny, transparency and accountability through being televised, video taped and so on. No judge wants to be seen as injustice personified when the whole world has seen the evidence that the judge has seen. Justice must not only be done, it must also be seen to be done.
Dr. Munyonzwe Hamalengwa specializes in writing on justice and the judiciary.