by Mwana Bwalya, Lusaka, Zambia, August 1997
THEME = JUSTICE
A recent survey at the Judicial Department in Lusaka, found that magistrates have had to be sent around the country's 61 districts, to help clear the backlog of cases. Confirming this, Philip Musonda, Acting Chief Administrator in the Judicial Department, said the situation is so "pathetic" that unless something is done soon, the due course of law will come to a complete standstill!
Musonda says: "The situation in the Judiciary is very bad. We have very few professional magistrates and judges, certainly not enough to go around for dispensing justice quickly. The situation is becoming urgent".
Zambia has 30 High Court judges spread across the country. Of these, only 14 are actually sitting. Of the ten principal magistrates, three are available to hear cases. There are six serving senior resident magistrates, but 15 are actually required. And nine resident magistrates are hearing cases instead of the necessary 48.
The situation is so bad that in some cases, local court magistrates have been used to hear complex cases, which then have to be referred to higher courts. And another example - in one week in August 1997, most of the cases which were to have been heard by Lusaka magistrates and the High Court, were adjourned (yet again!) and the prisoners had to be sent back to remand prisons. This was because the magistrates in question, were hearing cases in outlying districts in an attempt to clear the backlog there!
This could be the long-term result of what happened in the 1980s, when Kenneth Kaunda's government directed the University of Zambia to reduce the number of law students.
A word about the use of the word "Magistrates". In Zambia, these officials are only supposed to try court cases in districts or towns where they are appointed. For this reason, they are called Resident Magistrates". However, due to the already mentioned shortage of magistrates, this ruling is mostly ignored, and they are requested to help dispense justice wherever there is a backlog of cases. When they leave their own district, they are known simply as Magistrates.
There are three types of magistrates holding Bachelor of Law Degrees. The lowest rank is a Resident Magistrate who has no experience, but is recruited by the Judicial Services Commission straight from university. Once the Resident Magistrate has gained some experience, or proves to be competent in his/her work, the next step up is to become a Senior Resident Magistrate. The highest grade is that of Principal Resident Magistrate, and it is from among these, that the President appoints High Court and Supreme Court Judges.
Magistrates without Degrees are called Junior Judicial Officers. They hold a diploma or certificate, obtained from the National Institute of Public Administration. The lowest rank in this category is Magistrate Class III. Then comes Magistrate Class II and finally the senior rank of Magistrate Class I. They can then go on to university to study for a Bachelor of Law Degree, otherwise they remain at Magistrate Class I level.
Zambia has relatively well-established infrastructures for training legal personnel. The University of Zambia has a First Degree Programme offered to young men and women who want to study law. After four years' training, they sit for their Bachelor of Law Degree, and if successful, spend another nine months at the National Institute of Public Administration, where they are attached to various courts. Thereafter, they are admitted to the Bar and are ready to be recruited. (The National Institute of Public Administration also offers Diploma and Certificate Law Courses for magistrates and local court justices, and courses in Military Law).
The Judicial Services Commission recruits young graduates on behalf of the government. Most of the young lawyers prefer not to work in the courts because of the low salaries and poor service conditions. They prefer to look elsewhere for employment. Some join private law firms or set up their own private practices. Others go overseas where they are better paid.
Regarding senior appointments to the Bench, it is the President who appoints (or promotes) judges to the High Court and the Supreme Court. This includes the appointment of Chief Justice. In July, President Chiluba, for the first time in Zambia's 34 years of independence, promoted two women judges, Lombe Chibesakunda and Florence Mumba, to the Supreme Court.
In Zambia, salaries within the legal profession have never kept up with the increase in the cost of living. And because the training for a Law Degree offered by the University of Zambia is of a high standard, "scouts" from The Gambia and Namibia are after our graduates, offering them a better job elsewhere. Some of these are experienced men like former Chief Justice Annel Silungwe, who is now working in Namibia; Frederick Chomba, who is working in The Gambia; and Raphael Mungole who is in Liberia.
In July 1997, President Frederick Chiluba increased judges' annual salaries by 207%. The amount they are now earning is kept a guarded secret but it is known that the Chief Justice's salary came to Kwacha 20 million after the increase. Following on these increases, there were criticisms and mixed feelings: Junior court officials did not benefit from this increase and so demanded their own "fair deal". Other sectors of the public service called the increases "unconstitutional".
Only the Law Association of Zambia (LAZ) came out in full support of the salary increases, asserting that they were "long overdue" and they were "necessary, because they instilled confidence and prevented corruption". LAZ's president, George Kunda, said the current salaries for judges and magistrates were "poor and scandalous".
To complete the picture: In Zambia, the Attorney-General, the Investigator-General, the Solicitor General, the Director of Public Prosecutions, the Secretary to the Cabinet and the Auditor-General, all have their salaries fixed by Act of Parliament. (N.B. The Investigator-General is a political appointment, made by the President from among practising High Court or Supreme Court judges. The Investigator-General deals with cases of nepotism, tribalism and favouritism at places of work, and can initiate prosecution of employers should evidence be established).
The same used to apply to judges, before President Chiluba's Movement for Multiparty Democracy (MMD) government came into office in 1991. Since 1993, when the Constitutional Offices (Emoluments Act) Number 43 was repealed, judges' salaries are now decided on by the President and ratified by Parliament.
The salary increases have made the public suspicious. The Opposition in particular, say that this will influence the Supreme Court's judgement in a particular on-going case, whereby the issue of President Chiluba's parentage has been challenged by the Opposition.
Opposition leaders say that Chiluba's father, Luka Chabala Kafupi, came from Congo (RDC). This is against the Constitution which bars Zambians of foreign parentage, from holding the office of President. It's the same law which disqualified Kenneth Kaunda from standing for office - his parents were born in Malawi.
Opposition leaders want both President Chiluba and his father to undergo a Deoxyribonucleic Acid (DNA) test to establish the truth, but the Supreme Court has rejected this petition. Earlier, they had demanded that Chiluba's election as President be annulled, because he used one of his names, "Titus", which does not appear on his national registration card, but the Supreme Court ruled against this as well.
Last year, after candidates for the presidency filed their nomination papers, the Opposition challenged Chiluba's nomination before the Supreme Court, but this too was rejected, when Chief Justice Matthew Ngulube said: "The challenge is premature and incompetent".
The Supreme Court has ruled against the State on several cases, especially one involving members of the Opposition charged with bombing government offices. However, from what has already been stated above, cases involving Chiluba and lost by the Opposition, have led many Zambians to declare that: "In Zambia, judges run the risk of being dismissed by the President, who is the appointing authority". Hence, the people say that the Judiciary is, in practice, not independent of the Executive.
It is discouraging to note that Zambia's judges have no Code of Conduct to guide them in their work - in sharp contrast to the Law Association of Zambia which has laid down a Code of Conduct for all lawyers in the country and penalises those who go against its ethics. This means that all judges (who are appointed by the President) are in fact, political appointees and hence, cannot be dismissed by their peers.
A Lusaka lawyer said that since there are no established rules guiding the "do's" and "don'ts" for judges, and because of the system of senior appointments to the Bench (whereby the President himself makes the appointments), if possible, the Executive has to be "persuaded" that a judge does not deserve to hold that office. In practice, this leaves a judge, either erring or not, completely in the President's hands, and this is clearly stated in the new Constitution.
Article 98 (3) states: "Any judge of the High Court or Supreme Court may be removed from office by the President, subject to ratification by Parliament".
But, some lawyers have already sounded warnings, describing this article as "a recipe for anarchy and an erosion of the independence of the Judiciary".
Article 98 (2) states: "Any judge of the High Court or Supreme Court may be removed from office for poor health, madness or drunkenness and disorderly behaviour".
But, the Constitution does not provide for the removal of any judge for failure to exercise impartiality, and for contravention of the Constitution and the Law.
Yet, regarding the Executive and the Legislature: Under Article 37 (1), the President may be removed from office for violation of the Constitution and for any gross misconduct. And Article 72 (2) says that a Member of Parliament may lose his seat for contravention of the Code of Conduct prescribed by Act of Parliament. Also, other Articles, in addition to Articles 37 and 72, provide checks and balances regarding the Executive and the Legislature.
The same checks and balances are absent from Articles in the Constitution concerning the Judiciary. So the question must be asked: Is it truly independent?
In the final analysis: Judges are appointed and dismissed by the Executive, and the all-important question of their impartiality seems to be completely ignored in the Constitution.
Where, then, lies the judiciary's independence?
END