The independence of the Judiciary in the multi party democratic Era: 1991-2008
Date
2013-05-13
Authors
Changa, Chitabo
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Abstract
It has been argued that mankind cannot fully realize his dignity and self-worth except in an orderly society. For order and peace to subsist, certain individuals need to be clothed with power and authority to ensure compliance with regulations which are meant to maintain order. These individuals manifests as government. The problem however is that power tends to be abused by those in whom it is vested. It therefore becomes imperative that a means of checking abuse of power be available and ways of remedying it. In our modem society, governmental powers are divided into three among the Legislature which makes laws, the Executive enforces laws and initiates policy and the Judiciary which interprets the law and is the custodian of fundamental human rights. This division of labour is to ensure checks and balances and prevent abuse which is as already pointed out is inevitable. Thus each organ checks and balances the other ensuring accountability. Of the three organs however, it is well accepted that the Executive branch is the most powerful and thus most likely potential violator of fundamental rights due to the peculiar position it fills, that of enforcing the law. Due to the complexity of the law, the officers vested with power may abuse it not necessarily as a result of malice. As such, there should be a means to check this abuse and remedy it. This remedy takes the form of the courts. The officers of the courts however unlike the Legislative or Executive officers do not get their mandate direct from the people but are instead appointed by the Exective. Though they are appointed by the Executive, they are not part of it but indeed expected to be independent and check its actions. However, for the courts to effectively check the activities of the other two organs and protect fundamental human rights especially when the violations of these guaranteed rights are at the instance of the Executive branch, they must be assured of not getting dismissed easily by the Executive branch. Notwithstanding this cumbersome situation, it is accepted the world over that politicians, that is the Executive branch appoint judges. The objective of this paper is to discuss the independence of the judiciary in a multy party era. It will discuss the concept of judicial independence and what factors should exist for one to assert that it exits. The paper will then outline the judiciary's role in a democracy which is very different from its role in a one party state when they interpreted party policy and just an organ of the party since government was. A discussion of separation of power and the rule of law will also follow. The research paper will investigate the structure of the judiciary and the mode of appointment of judges and whether the mode has an effect on their independence. The paper will then delve into the weaknesses of judicial independence in our system which presents a danger to democracy and fundamental human rights. Finally, suggestions of improving judicial independence will be forwarded in the last chapter.
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Keywords
Judicial powers-Zambia , Seperation of powers-Zambia , Justice, Administration of-Zambia