Munyonzwe Hamalengwa
The appointment of Chief Justice Ireen Mambilima by President Edgar Lungu is turning out to be a breath of fresh air. Her belief in the imperative of the autonomy and independence of the judiciary is alluring. At the Law Association of Zambia conference on April 25th, 2015, she bemoaned the lack of both operational and financial independence of the judiciary. She worried about the constraints such limitations may have on the men and women of the judiciary as individuals: “It is expected that these men and women will not succumb to pressure from any quarter, political or otherwise, and that they will not inflict self-censorship on themselves in fear of the unknown.” Pressure will be forthcoming.
Acting Chief Justice Lombe Chibesakunda had stated that there were elements of corruption within the Zambian judiciary, no doubt due to lack of operational and financial independence and the overwhelming poor conditions of service in the judiciary.
Will the lawyer-presidency of Honourable Lungu finally respond to this perennial prayer for the need for judicial independence and autonomy by granting the judiciary the operational and financial independence sine qua non to the same? This independence of the judiciary however, is consequent upon the character of the men and women who occupy the bench, chief among them is the equality gravitas of the Chief Justice.
To get the flavour of what I am saying here, compare what others in other countries have said about the appointment of their chief justices. Professor Alan Dershowitz of Harvard Law School, in his book, Contrary to Public Opinion has written the following about the then Chief Justice William Rehnquist of the Supreme Court of the United States:
“Rehnquist is widely regarded by defense lawyers as a prosecutor in robes. He nearly always sides with the government and he often helps the prosecution make its case. Many defense lawyers do not regard him as a “judge” – in the sense of a neutral arbiter of constitutional rights – in criminal cases.
Indeed, it was precisely because both Richard Nixon, who originally appointed him to the Supreme Court, and Ronald Reagan, who elevated him to chief justice, believed that he would not be a neutral judge in the criminal cases - that he would side with the prosecution – that he is where he is today. Nixon appointed him because of his reputation as an extreme-right-wing ideologue, a lawyer who had recommended declaring “qualified martial law” during antiwar demonstrations in Washington. Reagan promoted him to chief because of his consistent record of voting against the rights of criminal defendants – a record of one-sidedness unequalled by any other then-sitting justice. He was clearly not promoted or elevated because of his qualities as a neutral “judge.””
Chief Justice Mambilima cannot be accused of any of the above or the following evaluation of some judges in the United States and elsewhere, again as per Alan Dershowitz who states:
“The recent trend in Supreme Court nominations – toward younger candidates appointed not because of their distinction but because of their ideology and the brevity of their paper trail – threatens to further diminish the quality of our highest court. Ideology aside, the U.S. Supreme Court is already among the least distinguished high courts in the Western world. Most of the members of our Supreme Court do not hold a candle to their judicial brothers and sisters on the Canadian, English, Israeli, New Zealand, and Australian high courts, where merit, experience, and professional distinction are the primary considerations for appointment.”
Further Dershowitz states:
“Our judges, including our Supreme Court justices, are among the least qualified in the democratic world today. Many come from the ranks of the mediocrities, if not the dregs, of the legal profession. There are some very distinguished lawyers who ascend the bench, but they are way outnumbered by the mediocrities. Many judges are incredibly lazy, regarding their position as a kind of benign retirement from the rigors of law practice. Some are corrupt, although exchanges of cash are rare these days. The current currency of corruption is the exchange of favors and influence. Judges look more favorably on certain lawyers, law firms, and clients.”
Judges cannot and should not demand independence if they cannot exercise that independence fairly and equally to all the litigants who appear before them, without toying the status quo line. For many this issue does not factor into the discussion about the independence and autonomy of the judiciary. Fuller discussion is for another day on this.
The issue of the independence and autonomy of the judiciary has been given a sustained, deep and undivided attention and cultivation by Former Chief Justice Ernest Sakala. It is to his Masters of Laws (LL.M.) thesis (1999) at the University of Zambia, Faculty of Law, entitled Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges that I now turn to, to show and connect that what the new and current Chief justice Mambilima has stated, has been stated fully before. The thesis is 329 pages long. While many judges and scholars have written judgements and articles on the independence of the judiciary, they have only touched on the subject. Writing a whole LL.M. thesis on this subject is a whole different kettle of fish.
Judgments and articles are not given the thorough critique and makeover as an LL.M. thesis is given by a committee of zealous supervisors. An LL.M. thesis concentrates your mind. This evaluation is based partly on my own experience of writing an LL.M. thesis. For an LL.M. thesis, one has to canvass a mountain of literature before distillation and acceptance. In this particular case, because it was written by a sitting Supreme Court Justice, a high quality product was expected.
The fact that this thesis was written by a sitting judge of the highest court in the land (the Supreme Court of Zambia) who had many years of experience in judging and judicial writing of decisions under his belt, coupled with extensive experience on the job, of being a judge subject to actual or potential interference with his autonomy and independence by the executive and the legislative branches of the government, as well as the media and the legal profession (lawyers), in a poverty stricken country like Zambia, gives the thesis much unprecedented credence. In theory at least. Because it was also aimed at influencing the maintenance of autonomy and independence of the judiciary in Zambia in the future, it had the feel of completeness and poignancy. But the lamented subject has perhaps worsened.
Justice Sakala talks about the corruption and potential corruption, the judiciary in Zambia could be subjected to given the poor working conditions there are. There would be allure for accepting bribes and payouts. Justice Chibesakunda alluded to this fact.
The politicians and the media are also viciously attacking various judges in an attempt to influence them. Justice not only has to be done, it also has to be seen to be done.
Justice Sakala’s thesis (also adumbrated by Justice Mambilima) is that the kernel of judicial autonomy and independence is how the judges themselves as a group and individually, uphold, defend and fight for this autonomy and independence on and off the bench. And on a daily basis. There is no holiday. It is not sufficient to sit back and relax on account that autonomy and independence are provided for in the constitution and other statutes and that the executive and legislature claim on a daily basis that autonomy and independence of the judiciary are guaranteed in Zambia. What is on paper and what escapes people’s lips is quite different from the lived experience.
All other things being equal, “individual judges are the main actors in ensuring judicial independence … [because] independence of the judiciary is not dependent on constitutional provisions which can easily be ignored but on the attitude of individual judges themselves asserting their own independence, particularly in politically sensitive cases.” (p. 314).
Justice Sakala states that “inadequate physical facilities have continued to erode and frustrate the autonomy and independence of the courts as well as public confidence in them” (p. 312). Any talk of autonomy and independence of the judiciary is hollow if it does not address the conditions of service of the judges. As Justice Sakala says, “judges operate under very trying circumstances and under an environment of hunger, poverty and corruption, the pressures on them are high” (p. 317), thereby contextualizing the pretexts for autonomy and independence of the judicial in socio-economic conditions rather than suspending them in only political terms as is prevalent in Western countries where socio-economic conditions are positive and rarely impinge on judicial independence stricto sensu. Justice Sakala’s call has not been heeded to since 1999.
There is another side of the coin. Some people have claimed that salary awards to the judges can be an act of interference with their independence as they will be predisposed to rule in favour of the government. This however is a whole different debate. The harbingers of this debate state that the previous governments had done precisely the same and probably resulted in the scuttling of cases then pending against the President and the government.
Justice Sakala does a good historical survey of the autonomy and independence of the judiciary. There was no autonomy and independence of the judiciary under colonialism.
Zambia has generally demonstrated a measure of judicial independence over the years. There have been threats and attempts to curtail judicial independence. “If judges are truly independent,” Justice Sakala says, “they will often be required to announce unpopular judgements either in favour of the right of the individuals or in favour to the executive.” (p. 315). This has happened many times in Zambia. “What is of importance is that the judgments be well reasoned and expressed so that they are respected and acceptable not only to lawyers but also to the loosing litigants” (pp. 315/316). The germination of multiparty democracy in Zambia ensured that judicial independence and autonomy will be maintained. The ratification of judicial appointments by parliament after their selection by the Judicial Service Commission with the involvement of the legal profession is a further step attesting to a measure of the permanence of judicial autonomy and independence.
Improvement of the conditions of service would be an added cushion. I would add here that the constitutionalization of the jury system would also solidify the autonomy and independence of the judiciary. The jury system was developed to act as a bulwark against statecraft. More on this another day.
Zambia is fortunate to have Chief Justice Mambilima at the helm of the judiciary. From her remarks at the LAZ Congress, she will fight for the imperatives of judicial independence and autonomy and the rest of the jurists shall follow.
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