By Peter Sinkamba
GREGORY CIFIRE IMPRISONMENT: FROM THE LENS OF THE GREEN PARTY
Following the sentencing of Anti-Corruption and human rights activist Gregory Cifire to six years simple imprisonment by the Supreme Court last week on Friday last week, I have received calls from various media houses seeking my comment on the judgment and sentence, which many consider is too harsh.
Before I comment on the Cifire judgment per se, let me start with a general commentary on the issue of civil liability of judges of superior courts?? that is to say the High Court; Court of Appeal; Supreme Court; and Constitutional Court.
A judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but also to malicious, corrupt, or oppressive exercise of his judicial powers. For it is generally considered that it is better that occasional injustice should be done, and remain unaddressed under the cover of this immunity than compromise or weaken the independence of the judicature. It is argued that administration of justice could be weakened by liability of judges to unfounded and vexatious charges of error, malice, corruption or incompetence brought against them by disappointed litigants.
Notwithstanding the said immunity, there is remedy for judicial errors which is some form of appeal a higher court. The remedy for corruption is a criminal prosecution. The remedy for judicial oppression or incompetence is removal of the offending judge through the Judicial Complaints Commission (JCC). The Constitution of Zambia Amendment 2016 has outlined in Articles 143, 144 and 236 the procedure for removal of an offending judge.
As the Green Party, we encourage aggrieved members of the public to rely on the two avenues?? appeals to higher courts, and JCC?? to express their grievances rather than use any other avenues to disparage courts and the justice system. This is justifiable merely on grounds of public policy but also as a deduction from the principle that a superior court always has power to determine the limits of its jurisdiction: it follows that an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction and not an act out of its jurisdiction.
Coming to the case of Cifire, let me start with the six year imprisonment term. First of all, as stated above, it goes without saying that the Supreme Court possesses inherent power to imprison a person for a period of six years. In fact, the Court has power to sentence a person to even more years, including death sentence. So, with respect to sentence handed down to Cifire, we do not think that the Court is out of its jurisdiction.
The next question is whether the Court’s decision is an abuse of the Court’s jurisdiction. From inherent power point of view, we do not think that the sentencing is an abuse of the Court jurisdiction considering that a superior court has power to determine limits of its jurisdiction and independently hand down decisions. The only available remedy for seemingly abuse of court’s jurisdiction is a Presidential Pardon.That is the only available remedy which Cifire could seek, and nothing more.
Coming to public policy point of view, we believe that the Court’s six year sentence is contentious. Zambian prisons, with the official prison capacity of 6,100 bed spaces, are among the most congested and unhygienic in the world. Latest statistics show that Zambia has a total population of about 20, 000 prisoners representing more than 300 per cent (300%) overcrowding in all the country’s prisons. In some instances ten inmates share bed-space meant for one. This congestion not only results in overcrowding, but also creates problems of hygiene, sanitation, and general poor living conditions. The current prison system does not meet the basic needs of victims. In fact, it is a struggle to remain physically and mentally healthy in Zambian prisons where over 4,000 or 22% of the prison population live with HIV.
Further, the rate of recidivism is very high in Zambian prisons, showing a strong correlation between imprisonment and re-offending rates. Put simply, recidivism rates show that prison sentencing is not a deterrent as more often than not, offenders end up re-offending and sent back to prison.
Furthermore, from public policy view-point, we believe that Cifire’s sentencing makes a good case for urgent review of the sentencing system in Zambia. As the Green Party, we believe that greater focus of the justice system should be on mediation, restorative justice, solutions based-approaches, and community- based justice. We believe that there is need to create an improved approach to delivery of justice which enhances wider social justice in the country and is respected internationally.
In particular, the Green Party believes that there is need to reduce dependence on prisons and instead make greater use of alternatives as research shows that community-based sentences have a significant effect on lowering re-imprisonment and re-conviction rates compared to prison sentences.
In this regard, the Green Party advocates for a justice system which:
- has an increased range of options available to magistrates and judges in criminal court cases beside prison;
- invests in the provision for rehabilitation of offenders, focusing on selfrecognition and acceptance of responsibility, guilt and remorse, counseling, education, conflict resolution, and anger management therapy so as to prevent repeat offending;
- supports teaching of non-violent means of expression;
- integrates international measures in its system to prevent abuses of human rights and standards, of which virtues are central to efforts of creating of a more peaceful and just world;
- strengthens enforcement mechanisms of National Values and Principles as espoused in Article 8, particularly as relates to constitutionalism vis-à-vis Articles 1, 2, and 5, as read with Articles 118 and 122; and
- has a harmonized civil and criminal procedure for the two apex courts? Supreme and Constitutional Courts. The procedural incongruence noted in recent contempt proceedings independently before the two apex courts whereby the Supreme Court has contempt procedure whilst the Constitutional Court lacks one, is a serious worrisome public policy matter. Either both apex courts should have a unified contempt procedure, or both be deprived of it.
The Author is the President of Green Party of Zambia