By Mordecai Mweene, Noel Chulu and Zindaba Lwara
Introduction
President Hakainde Hichilema on 17th November 2021 appointed Supreme Court Judge Mumba Malila as Chief Justice. Justice Malila took over from late Chief Justice Ireen Mambilima. President Hichilema stated that he had made the decision after considering the recommendation of the Judicial Service Commission and that the decision was subject to parliamentary approval.[1]
Commenting on the appointment of the Chief Justice, Former Law Association of Zambia (LAZ) President Eddie Mwitwa applauded the appointment of Hon. Justice Dr Mumba Malila State Counsel as Chief Justice stating that it was a solid appointment. Mr Mwitwa expressed delight over the appointment of Dr Malila and congratulated him noting that he is ably qualified, has the necessary independence credentials for the position and is more than deserving of the appointment. He noted that it is a constitutional mandate that every Chief Justice upholds the independence of the judiciary and it is the obligation of the Chief Justice to ensure that is achieved, therefore, there is no doubt that Malila will ensure that is attained given his vast experience and various capabilities.[2]
Following the national discussion on the appointment of the chief justice, the need for transparency in the appointment process, and the need to have an independent judicial system, the Zambia Law Development Commission was prompted to publish this Article entitled “The independence of the judiciary and its important role of dispensing justice fairly and protecting human rights.”
The article attempts to define judicial Independence and give a legal position on its role in dispensing justice fairly and the protection of human rights. Further, it also seeks to compare the implementation of judicial independence in other African countries and consider whether or not there is a need for law reform in our legislation on the same.
A snap survey was carried out on a cross-cutting mix of respondents on their understanding of what judicial independence is, who it protects, if it promotes fairness and what they expect of the judiciary under the new government.
Defining Judicial Independence
Judicial Independence is the ability of judges and judicial officers of all ranks to carry out their judicial functions in respect of all people, regardless of status and in respect of all causes, in accordance with the law and the facts applicable thereto, without any additives, pressure or inducement from any other source, person or authority.[3]
Independence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.
Judicial independence rests on the pillars of institutional and financial autonomy. These pillars encompass the need for an appropriate appointment procedure, security of tenure, satisfactory conditions of service that the executive cannot adversely affect, the provision of adequate financial resources, and appropriate terms and conditions for all those involved in the administration of justice.[4]
In Zambia judicial independence is provided for in the Constitution under article 122 which states that:
- in the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority.
(2) A person and a person holding a public office shall not interfere with the performance of a judicial function by a judge or judicial officer.
(3) The Judiciary shall not, in the performance of its administrative functions and management of its financial affairs, be subject to the control or direction of a person or an authority.
(4) A person and a person holding a public office shall protect the independence, dignity and effectiveness of the Judiciary.
(5) The office of a judge or judicial officer shall not be abolished while there is a substantive holder of the office.
The Role of the Judiciary in Dispensing Fair Justice and Protecting Human Rights
Article 118 of the Constitution in highlighting the principles of judicial authority stipulates among other principles that:
(2) In exercising judicial authority, the courts shall be guided by the following principles:
(f) the values and principles of this Constitution shall be protected and promoted.
It follows that in dispensing justice fairly the Judicature’s constitutional role integrates public interest on the one arm and safeguarding fundamental rights and freedoms on the other. In order to achieve this, the Judicature must perform its functions free of interference from any person or body, without fear, discrimination or bias.
The enjoyment of rights and freedoms is the preserve of every person in society. At its core, the Judiciary fundamentally operates to justly and fairly uphold human rights and guard against injustices to law-abiding and legally upright persons. In its independent capacity, it provides a haven for the legally aggrieved.
The Constitution[5] provides in its preamble, in part, that:
WE, THE PEOPLE OF ZAMBIA: …UPHOLD the human rights and fundamental freedoms of every person.
Article 11 states that; It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status”[6].
The delicate nature and life-altering consequences of judicial action, however, often are the cause of judicial interference. At a national level, previous governments in Zambia have been criticised by public, private and political persons alike for meddling in the judiciary and judicial affairs. This in turn has brought distrust and a lack of confidence in the judiciary and its ability to dispense justice fairly. The disrepute of the judiciary brings into question the character and credibility of the very people appointed and entrusted with this responsibility.
The judiciary is charged with the protection of human rights through enforcing legislation that boarders on issues of human rights. Courts play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection and that perpetrators of human rights violations are brought to justice. The judiciary also ensures that anyone suspected of a criminal offence receives a fair trial.
John Sangwa SC, a key proponent of the need for judicial independence and transparency, proposed, in his letter to the President that there should be a change in Zambia’s judicial appointments process in order to restore credibility in the judiciary.
The current judicial appointments process as provided for in the Constitution read with the Service Commissions Act[7] requires that the chief justice and judges of the Republic of Zambia are appointed by the President following a recommendation of the Judicial Service Commission (JSC) subject to ratification by the National Assembly in accordance with Article 140.
Article 216 goes further to stipulate that:
A commission shall—
- be subject only to this Constitution and the law;
- be independent and not be subject to the control of a person or an authority in the performance of its functions;
- act with dignity, professionalism, propriety and integrity;
- be non-partisan; and
- be impartial in the exercise of its authority
Read with section 23 (1) of the Service Commissions Act, the JSC in its constitutional function of appointing the Chief Justice and judges is also mandated to regulate its own procedure without external influence or interference.
In his letter, Sangwa more specifically focused on the manner in which the Chief Justice is to be appointed. Criticising the previous government, he wrote:
“Accordingly, I write to ask you not to embrace the practice followed by your predecessors in the appointment of the Chief Justice and other judges of the Superior Courts. Previously, the process of appointing judges was a sham: it did not have any semblance of transparency or fairness. It eroded the independence and integrity of the Judiciary and institutionalised political nepotism in the judicature.”[8]
Inference can be drawn from Sangwa’s statements that gross impropriety has in the past been rife in the selection and appointment process of the Chief Justice and judges.
One may ask what the correlation is between the appointment of justices and the role of the judiciary in dispensing justice fairly. The two can be said to be intertwined in that the characteristics, values, expertise, experience and track record of the candidates speak to their capacity to perform their constitutional judicial duties upholding the values and principles espoused in the Constitution.
To this effect, international organisations and media have heralded the President recognising his appointment of Honourable Justice Dr Mumba Malila as a commitment to human rights, the rule of law and the independence of the judiciary[9].
Comparative study
The Constitution of South Africa
The Constitution recognises judicial independence as it provides the judicial authority of the courts. The courts are subject to the Constitution and the law which they must apply objectively and without fear or favour. It is vital to state that judicial independence is implicit in the rule of law, which is one of the founding values of the Constitution[10].
The Constitution of South Africa under Section 165 states that:
Judicial authority vests in the courts and that the courts are independent and are only subject to the law which must be applied impartially and without fear or prejudice. Under the above stated section, the Constitution prohibits any person or organ of state from interfering with the functions of the courts. It therefore, enjoins the state through legislative and other measures to assist and ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts[11].
In accordance with section 174(3) of the Constitution, the president is authorised to appoint a chief justice after consulting the Judicial Service Commission and the leaders of all political parties in the National Assembly for the sake of transparency. It should be noted that the president is not bound by the advice given as stated above. Further, section 174(6) of the Constitution empowers the president to appoint judges of all courts except the Constitutional Court on the advice of the Judicial Service Commission.
It is vital to reiterate that, in South Africa, a judge can be removed from office by the president only after a two-thirds majority resolution is adopted by the National Assembly. It must be recognised that until such a resolution is adopted by the National Assembly, a judge may not be removed from office despite adverse findings by the tribunal[12].
The Constitution of Kenya (2010)
Article 161 of the Constitution vests judicial authority in the courts, thus, in exercising the authority, courts are subject to the Constitution and the law without any control or direction of any person or authority.
Article 166(1) of the Constitution prescribes that the power to appoint the chief justice and the deputy chief justice is vested in the president following the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly. Further, all other judges are appointed on the basis of the recommendation of the Judicial Service Commission[13].
There is a range of best practice measures in the form of guidelines and principles that have been adopted at both international and regional level in order to secure judicial independence, security of tenure, appointment and removal procedures of judicial officers[14]. In Kenya, for example, unlike Zambia, the judicial appointment process is public. The Judicial Service Commission publishes the names of the judicial candidates in the Kenya Gazette following which it invites members of the public to submit information on any of the applicants. The Commission uses this information during interviews with shortlisted applicants[15] in accordance with Rule 9(1)(c) and (d) of the Judicial Service Act No.1 of 2011.
This process can be said to increase transparency in the way the judges are appointed and go a long way to ensuring judicial independence.
The Snap Survey Findings
The Commission conducted a snap survey using a semi-structured questionnaire which had both close-ended and open-ended questions. The analysis of the findings was done using the Statistical Package for Social Sciences, Version 20 as well as Thematic analysis. This snap survey had a total of 25 respondents consisting of 17 males and 9 females to ensure gender parity. It must be underscored from the onset that this exercise was a snap purposive survey whose central aim was to get an overview of how people understand the concepts of judicial independence, protection of human rights, as well as their expectations of the New Dawn government. This follows, therefore, that the snap survey had limitations in terms of the sample size that was used meaning that it cannot be generalized to the larger population of Lusaka Province.
READ THE SNAP SURVEY FINDINGS HERE: http://www.zambialawdevelopment.org/download/the-independence-of-the-judiciary-and-its-important-role-of-dispensing-justice-fairly-and-protecting-human-rights/
References
[1] https://www.lusakatimes.com/2021/11/17/president-hichilema-appoints-supreme-court-judge-mumba-malila-as-chief-justice/
[2] https://l.facebook.com/l.php?u=https%3A%2F%2Fzambianbusinesstimes.com%2Fmwitwa-nods-cj-mumba-malilaappointment%2F%3Ffbclid%3DIwAR2gdHKK_OiwXIWgPe5ozetRXuNlbVcz54HWA1IcVSp18bo5wMzkDgdu8-o&h=AT0m5YQ2p-pqQ5A3OpSDq52BLKhj2eK7Wo9cyk4g8wq4iqdxt0zkHQJgclV35cUJy5DyGt5R9ikqDXq3Dj1wT1a_Jc88wQhLjm22PpX54fw_0nBiNZJBT7pwnsdXT26xj0k&__tn__=-UK-R&c[0]=AT0duq5r_98j0jBBzHXVWUyvMNJD9mVVTX86F_RfnWT0nl-FZEdqD2HgWgjrOdoKiGKLsC1S6wIaeDHm13FgIalNXTXzCu0hc0s-FtD6ywHIolNiHkmgphmEdhmNC_LdTLkL03lz9jMqH7fGzRfCOUaHHz3YRmasZmzVpGken4DUsh4
[3] https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-Book-Masuku.pdf
[4] Muna Ndulo, Law Association Annual General Meeting 2012
[5] Act No. 2 of 2016 of the Laws of Zambia
[6] 1996 Constitution of the Laws of Zambia
[7] Act No. 10 of 2016
[8] The Mast Online. https://www.themastonline.com/2021/10/04/an-unfit-chief-justice-will-undermine-judiciary-sangwa/
[9] The Centre for Human Rights, Faculty of Law, University of Pretoria. https://www.chr.up.ac.za/latest-news/2742-press-statement-centre-for-human-rights-welcomes-appointment-of-dr-mumba-malila-to-the-position-of-chief-justice-of-zambia
[10] http://www.judiciary.org.zm>ocj on 22/11/21
[11] The Constitution of South Africa (1996)
[12] http://www.scielo.org.za>scielo on 24/11/21
[13] The Constitution of Kenya (2010)
[14] LVD Vijver (ed) The judicial institutions in Southern Africa: A comparative study of common law jurisdictions (2006) 1; see also the International Commission of Jurists (ICJ) International principles on the independence and accountability of judges, lawyers and prosecutors: A practitioners’ guide (2004). The international standards are discussed in detail in chapter two.
[15] https://www.nomos-elibrary.de/10.5771/2363-6262-2016-3-312.pdf?download_full_pdf=1