Autonomy and independence of judiciary in Zambia: Realities and challenges
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Date
2011-12-06
Authors
Sakala, Ernest Linesi
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Abstract
The period prior to and after the introduction of multiparty system of politics in Zambia witnessed a flood of unprecedented litigation involving political cases in the Zambian Courts. The judiciary became the focal point and 'battlefield' of political cases. The political cases that were litigated during that period were all test cases on how independent the Zambian judiciary was. Indeed, criticism, attacks and accusations of the judiciary were at their highest ebb. Judges were given labels. Some were labelled 'gallant' judges while others were labelled 'pro-government.' This all depended on the outcome of a particular case. There was, at that time, a clear danger of the judiciary creating an impression that it would change with the change of political fortunes. The existence of constitutional and statutory provisions governing judicial independence did not protect the judges from the attacks and the criticisms. This study examines factors which have a bearing on judicial autonomy and independence but not provided for in the Zambian Constitution which enabled the judges to withstand the pressures of the time and continue to sustain judicial autonomy and independence today. The study critically analyses the judicature as the starting point of measuring factors with a bearing on judicial autonomy and independence. Thereafter the study critically looks at the judges in relation to their appointment, conditions of service and discipline. The study further analyses the two concepts, judicial autonomy and
independence. This examination is followed by a chapter on threats to autonomy and independence. The last substantive chapter evaluates realities and challenges of autonomy and independence. The sixth chapter is the conclusion. Basically the whole study is an examination of the real factors that influence judicial autonomy and independence in Zambia not found in the Constitution. The dissertation has shown that in the ultimate analysis autonomy and independence of the judiciary in Zambia are best secured, not by constitutional and statutory provisions, but by the sincerity and the good will of the people at the helm of power; by the responsible conduct on the part of the judges through understanding of their autonomy and independence; and by the public's acceptance of the court's decisions.
The study has revealed that while all the successive Zambian constitutions included provisions on independence of the judiciary, instances of attacks and intimidation directed at the courts never diminish, thereby making the whole concept of judicial autonomy and independence elusive and a mockery. The problem seems to be that many times the judiciary has in reality not been assertive enough. As a result of the lack of adequate self- assertion, the executive, the legislature and the public have not refrained from apparent, direct or indirect interference and attacks on the judges through derogatory comments, often made in bad taste with clear motive of intimidating the judiciary in 'politically sensitive' cases before or after judgment.
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Judicial powers - Zambia