Judicial independence

The standoff between the President and the legal fraternity over the Acting Chief Justice on one hand and National Assembly on the other is unhealthy for our country.

It jeopardizes and compromises the most important pillar of governance.

The whole concept of judicial independence is premised on the notion that the Judiciary as a mutual arbiter is distinct and therefore separate from the other arms of Government.

The separation of power provides the judiciary with the independence and neutrality to preside over matters that involve the other arms of governance. For example, citizens feel free to litigate against the state if a real chance exists that they will win if they present a compelling case.

 There is no doubt that Zambians want an independent and impartial judiciary that will dispense justice without regard to station in life, political affiliation or indeed any other consideration other than the law.

Such confidence will only come about if the Judiciary is seen to be truly independent from the influences of the executive.

Sadly this is not the case in Zambia at the moment. The standoff has shown that the President is playing a direct role in the functions of the Judiciary. His decision to override the legislature and in the process defy convention has dealt a very mortal blow to public perception.

The very fact that none other than the Law Association of Zambia has gone to court to challenge the President is a mark of very significant fracture that cannot be overlooked.

It shows that something is wrong and pretending otherwise is not helpful.

Unless this matter is resolved and resolved quickly the ability of our judiciary to dispense justice with impartiality, to resolve disputes and administer the law impartially and to ensure the enforcement of human rights will remain doubtful.

Already the removal of the three judges, ostensibly over a disciplinary matter, raised international uproar because ordinarily powers to discipline or remove a judge must be vested in an institution which is independent of the Executive.

Most jurisdictions actually limit such power to a judicial tribunal and not the executive which must not have any control of the Judiciary.

It is in the interest of democratic accountability that the National Assembly must play a role in the appointment of judicial officers as well as in the administrative function of the Judiciary. That is why the decision by the President to disregard the National Assembly is not acceptable.

The current controversy over judicial appointments is one reason why there is a a hue and cry over the constitution. Too much power is obviously vested in the President who can easily disregard a proper recommendation from the legislature.

This should not happen in a normal functioning democracy.