Judges suspended, debate spreads
There has been an active debate around the recent suspension of a Supreme Court judge and two High Court judges. The trio, Judge Musonda, Mutuna and Kajimanga, all face a probe into their professional conduct after the Republican President appointed a Tribunal.
Controversy seems to have clouded this action and ensuing arguments mainly on account of the President arriving at that very decision and further the appointment of a High Court judge from Malawi to lead the Tribunal. There have been two schools of thought on the Presidential power exercised in the drama. One side argues the Constitution enpowers him to do so under Article 98 while the counterside argues the matter should have been initiated through the Judicial Complaints Authority.
We as lay-people in this matter await guidance from the legal brains in the country on what the correct position is. I sometimes wonder whether the Zambian law is so complicated that we get varying interpretations from people of the same profession.
Reading between the lines
Further, whether the President exercised powers to the dissatisfaction of others, I believe the problem here is bigger than what the country is currently debating.
The Constitution under Article 98, it seems from my naïve interpretation, does assign powers to the President to appoint a Tribunal if there is suspicion of misbehaviour on the part of the judges. He further can suspend them pending the findings. If this is the case, then the President did what the law of the land allows him to do.
Therein lies my biggest challenge with us as a people. We latch onto a topical issue and pound it based on the popular thought process that has been dangled before us. However, in most cases we come to realise that we expend energies on the symptom and not the ailment.
In this case, my thoughts are similar to the ones shared in my earlier blog “True leaders: A dying or dead breed in Zambia”(http://t.co/xtWpzGQv). We have a systemic challenge first and foremost.
The President acted within his powers or so it appears. These powers are granted and protected by the Constitution. If they are inappropriate, this is because they arise from a defective authority. This deficiency in the separation of powers has exposed the potential conflict that can arise when excessive power is reposed in an office. The Executive and Judiciary are at loggerheads.
The other notable concern is the position taken (or not taken) by both the Chief Justice and the Law Association of Zambia collectively and their members individually. If there is something that is wrong in the interpretation or application of the law, we draw comfort that these learned experts will provide leadership. This does not seem to be the case as they either are cowed into silence, compromised into agreeing with a position that serves their interests or simply not courageous enough to state things as they ought to be, regardless of popularity.
There is a silent belief that there is more to this issue than is being let on. This too is evident when one notes the clear split in opinion in the legal fraternity. LAZ to me has been a let down on several occasions when they are silent and perhaps comment much later when their view cannot be considered expert opinion. They always come to the party rather late. For instance, I’d be happy to know whether the appointment of a Malawian judge is appropriate (even if it is allowed) and whether it is an expression of a lack of confidence in our own?
An ethically challenged bunch?
Additionally, I sense an ethical dilemma. There are lawyers that have questioned the Presidential actions and application of his Constitutional powers. Yet there also are those that deem everything to be in order. I appreciate that to have a legal case, there must be two parties on either side. However, where truth is involved, ethics must prevail and a position must not be taken simply because one is needed on the other side of the argument. Either the Presidential action was inappropriate or it was not.
But what we have seen is a conflict and poor reflection of our legal colleagues. It may appear, this is more of a power play and egos at the expense of professionalism and ethical judgement. In the end, even we the bystanders remain potently confused as to what is the correct status of things publicly presented.
Judicial corruption and reforms
Away from the argument of constitutional lapses, separation of powers and lame legal experts, we also have the issue of corruption.
It has been said that the suspension of the three (3) judges has been motivated by rampant corruption and misconduct in the Judiciary. One of the issues has been in relation to the case in which one legal team walked out of a court session as an expression of displeasure at a decision arrived at by the sitting judge. Whether walking out of a courtroom is in itself correct, I am not expertly placed to deduce.
My position though here is that corruption where it exists must be fought from the root up. The energy, zeal and determination exhibited in pursuing the three judges is commendable. However, if there is corruption as it is presented, this should not start at the three suspended judges. Let this be a comprehensively planned assault on an ill that has crippled our society at all levels.
If the corruption is as it has been depicted, then it must have permeated to the marrow of the Judicial bone system. As such, all areas need to be covered and a reform plan set in motion. As it is, it becomes easy to pursue a handful of individuals who may appear to be targets of political victimisation and persecution at the hands of visible and invisible foes. Some lawyers, Judicial employees, judges and their partners ought to be checked for a holistic overhaul of the system.
Therefore, there is need for an independent Tribunal with a wider scope and even qualified auditors to determine the scale and impact of this widely publicised corruption. It should not start with three individuals. There have been public pronouncements that this is the beginning of reform in the Judiciary. I hold, in my simple capacity as a Zambian youth, that the reforms have started in the wrong place all together. Hence the conclusion by some sections that this is targeted at specific individuals.
Seeing corruption for what it is
We know the corruption is deeper than three judges. What can one say about the swift decisions, comments and demands made with regard to this suspension case? Is the lightening pace at which things are moving not a wonder?
Yet we have people in Mukobeko, Kamfinsa and all the prisons dotted around the country that have not seen the inside of a courtroom for a decade or longer.
Yet we have children born in prisons and that is the only world they have come to know. Yet we have people that are poor and cannot afford legal representation but are not provided basic legal assistance to determine their cases.
Yet we have multiple adjournments of cases that can be closed quicker, subjecting people to the agony of anxiety and legals costs as they await the next given date. How many times do we read about unnecessary and unjustified adjournment of cases? What about cases of missing case files yet someone still remains to endure the punishment of prison when their case cannot be heard because a file is lost?
What about the filth, diseases and unhealthy sexual practices we are informed about in prisons? Yet no deliberate action is taken to deal with this and the situation is consistently aggravated.
The few cases cited above expose the corruption we ought to be fighting. All this mess and breakdown occurs while our colleagues opt to amass the wealth that comes with their privileged status but there is no corresponding investment in rectifying the breakdown in the country’s justice system. We the ordinary folk do not see the political will or commitment to address this corruption.
When the systems, legal players and institutions are cleaned up, we will be on the path to Judicial reform. This is because the breakdown now goes beyond the three suspended judges and is deep rooted in the courts, administration, among individuals and perhaps in the LAZ as well.
Reforms must be holistic and the Tribunal given refined terms of reference with a wider task than dealing with a drop in the ocean in the pursuit of three individuals.
More action, less talk
The challenge is bigger than it seems in my view. It is for this reason that I become very frustrated and concerned when we go on as a nation debating and dwelling on an issue in a lopsided or partisan way. We do not take time to digest an issue beyond what is presented in the print media or whatever form the news comes in.
In the absence of a holistic approach, we will all just remain gongs that perpetuate societal noise with no improvement or solutions that posterity can benefit from.
Simply because we opt for patronage, wealth and status at the expense of ethics and the decision to do the right thing when called upon.