Is the Judiciary Still on Trial ?

By Isaac Mwanza

“It is not the duty of the Judiciary to fight corruption. Theirs is to met out justice but if they step into the fight against corruption, then trouble is in the neighbourhood.” ~ Jonas Zimba, Zambian lawyer

INTRODUCTION

In a must-read periodical article published by the Zambia Law Journal in 2011 titled “The Zambian Judiciary on Trial: the Politicisation of the Judiciary or the Judicialisation of Politics?” Dr. Mumba Malila, S.C., now his Lordship the Chief Justice of the Republic of Zambia, introduces his first chapter by acknowledging that there existed a widespread public perception that the Zambian Judiciary had lost its independence, or was otherwise compromised. This public perception was based on a belief that the Judiciary had conspired with the executive arm of government to entrench a culture of impunity for government officials involved in corruption and abuse of taxpayer’s money.

Over a decade later, the tide has turned in the opposite direction, with a growth in perception that the Judiciary has now been weaponised against government officials, opposing politicians and citizens in general. This is the theme for our discussion.

WEAPONISING THE JUDICIARY?

According to the 2011 publication by Dr. Mumba Malila, the judicialisation of politics, and with it the politicisation of the Judiciary which occurred since the advent of multi-party democracy in 1991, had seriously affected the independence of the Judiciary in the negative. This author wonders whether a similar conclusion about our country’s Judiciary, now presided over by the self-same Dr. Malila as Chief Justice of the Republic of Zambia, would be reached at this point.

I think the perception has changed and shifted to what some claim – whether true or not – that the status has moved from the judicialisation of politics to weaponisation of the Judiciary or judicialisation of the weaponry. After two decades of the State losing court battles in the fight against corruption, including an era in which the country was said to have been turned into a courtroom, the Rupiah Banda government enacted the Forfeiture of Proceeds of Crime Act on 13th April, 2010.

The Act now provides an easy route for the State to secure convictions of former and serving government officials and persons accused of financial crimes. Such convictions are based on nothing more than suspicion – a state of conjecture or surmise where proof is lacking – that an accused person could possibly have committed a crime and gained some pecuniary advantage in form of money or real property, namely land, a farm, mine or housing or other items of value.

Under the Act, the State doesn’t need to prove that a crime was actually committed and proved beyond reasonable doubt, as required by a long-standing principle of criminal law. The accused is easily sent to jail on the balance of probabilities that what they possess may have been acquired from some unknown and unproven crime, which violates the constitutional right to be presumed innocent until proved guilty before a court of law.

The Constitution itself was, I don’t know why, crafted to provide for “certain instances” when the prosecution can require an accused person to prove that they did not commit a crime in order to acquire the property which is being alleged to be the proceeds of crime.

In this instant case of the Act, the burden of proof swiftly moves to the accused, from the accuser, to prove him/herself innocent. Once the courts finds the accused person with the case to answer, the accused person should never exercise the option of remaining silent. It can be fatal. They ought to give some sort of explanation to prove their innocence.

The promulgation of the Act was the beginning of what some members of the public allege to have been the executive weaponizing the Judiciary against former and serving government officials and persons alleged to have committed financial or economic crimes.

Since 2010, the growing culture by the executive has been to use the weapon in its hands to deal with government officials and, especially, those who have served in government but are now opposing politicians and even private citizens who have nothing to do with government or politics, but are perceived as encroaching on the territory of those who wield power – more recently, the case of James Ndambo is illustrative of this trend.

Successive leaders have, to a large extent, moderately used this weapon but there have been cases, of course, in which politicians smelt the stink of this law when they crossed paths with those who had political power. Investigations and prosecution would be ordered against fellow power brokers perceived as being a threat to their position of power.

More recently, sentiments from a certain section of society are that the judicialization of political power, i.e. the abuse of political power to harass perceived or real competitors through weaponised legislation, has been actualised through the formation of the Economic and Financial Crimes Courts, whose expectation is that they shall speedily convict those brought before it through the very convenient Forfeiture of Proceeds of Crimes law.

Shortly after the formation of the Economic and Financial Crimes Court, the self-same Dr. Mumba Malila, now in his capacity as Zambia’s Chief Justice, designated specific subordinate courts to handle alleged economic and financial crimes on a fast-track basis. It is now being alleged that some magistrates, many of whom have considerable experience serving on the bench, were transferred from Lusaka to apparently pave way for what His Lordship the Chief Justice has termed as “carefully identified magistrates” to preside over these courts.

Of course, the public was not told what criteria constituted this “careful selection” in view of the fact that all judicial officers and judges are presumed to serve only the Constitution and the law regardless of demeanour. From the knowledge available in public domain, none of these carefully selected magistrates were known to be experts or to have had more specialised training in financial and economic crimes than their colleagues who were transferred to make way.

It is a sound assumption that all adjudicators (Judges or magistrates) of the same class are equal, and none may therefore be considered to be more suitable than any other at any level. Our Chief Justice now seems to contend that good adjudicators can be identified by “careful selection” and duly declared to be better adjudicators than others.

In other words, if one seeks a fair trial, then by default, the magistrates who serve on the Economic and Financial Crimes court are the best, having been “carefully identified and selected” for their qualities by the powers that be. All other magistrates are to be treated with caution, having failed to pass the careful scrutiny which would have qualified them to serve on the Economic and Financial Crimes court?

It is entirely logical to make the argument that, from that moment, His Lordship the Chief Justice Dr. Malila, has publicly declared the clear intention of the Judiciary to implement the program of the Executive branch on fighting corruption and ill-gotten wealth under the banner of these financial crimes’ courts. In his own words, “it is not business as usual.” Indeed. The political establishment wanted the fast-track financial crimes courts for their own purposes; Chief Justice Dr. Malila obliged and delivered.

The unusual judicial business can be discerned from reading a couple of His Lordship’s the Chief Justice’s speeches, delivered this far: the Judiciary has stepped into the corruption fight as a special case, and this determination by the Judiciary, is demonstrated by the Judiciary moving very rapidly in establishing some subordinate courts which are presided over by “carefully identified” magistrates to secure convictions and win the corruption fight.

In future, some statistics ought to be done on how many cases were taken before these courts using the very convenient but questionable legislation which the Supreme Court had found to be constitutional in the Liato case. As we now know politicians, this same law will in future be utilised against those that may be serving in government today. Its a never-ending cycle.

(To he continued on Monday)

First Published by the Zambia Daily Nation