Part III: Appointment Of Judges: Implications On Financing Of The Judiciary

By Isaac Mwanza

(Continued from yesterday)

In our first discussion of this series, we assessed the effect of continued appointment of Judges on the existing Judicial infrastructure and operations. Our conclusion was that the recruitment of new Judges will exacerbate the problem of limited courtrooms, office space, Judges’ chambers and other judicial resources.

In the second article, we examined the emerging pattern in the system of appointing and promoting Judges, and concluded the current ‘tap-on-the-shoulder’ system of promoting Judges is flawed as it is based on institutionalised political patronage and favouritism rather than seniority of Judges, experience, merit, and hard work. This final article of the three series addresses the vexing question of adequate financing of our Judiciary.

PAYING FOR AN EFFECTIVE JUDICIARY

There should be no doubt that the recent appointments of Judges of the superior courts by the Republican President, His Excellency Mr. Hakainde Hichilema have a far-reaching effect on the existing Judicial infrastructure and adds substantially to the financial burden.

Apart from the basic salaries and related allowances which will drastically increase expenditure and put additional pressure on Judicial resources, our Judges are entitled to a qualified secretary, research assistant, Marshall, security personnel, and domestic staff.

These staff will have to be employed if they are not available and also must enjoy conditions of service as stipulated in our Employment Act and Code.

Judges are also entitled to a personal-to-holder vehicle, fuel allowance, a non-private practising allowance of twenty per centum of the basic salary.

In addition, Judges, their spouse and four children are also entitled to vocational leave with travel benefits as well as medical insurance, all paid by the State.

This may appear to be somewhat excessive, but this is the price that we must pay as a country in order to insulate our Judges and those who work with them from worldly temptations.

FINANCIAL IMPLICATIONS

Before President Hichilema appointed his first 18 Judges in 2021, the emoluments budget for the Judiciary stood at K325.4m which later increased in 2022 to K359.6m.

In 2023, Government has allocated a total of K496.2 million for emoluments for the Judiciary, an increase of K84.5m from the previous year. However, only K340.4 million of this amount will be spent on salaries and wages while K68.2 million has been allocated for other emoluments.

It is this author’s humble opinion that this is woefully inadequate, considering the vital role that our Judiciary plays in upholding the very existence of our free Republic.

More resources should be allocated to ensuring that our Judicial system functions at the optimal level, which means that our Judges at all levels, must have the environment required to discharge their noble duties without undue pressure resulting from inadequate offices, inadequate staff, lack of courtrooms, lack of transport etc.

This country needs to invest far more in our Judicial system and in our Judiciary, from the Local Court, which serves our people at a level which they readily understand, up to the Constitutional and Supreme Courts, the guardians of our modern democratic freedoms and rights.

To understand the financial implications of recent appointment on the budget for the Judiciary, one has to also look at the annual salary for our Judges. As an example, a High Court Judge earns a basic salary and housing allowance totalling K521,085.60 per year.

This K521,085.60 figure has to be multiplied by 12 new High Court Judges President Hichilema appointed, giving a whooping total of K6.3 million as basic salary and housing allowance only.

The new Deputy President of the Constitutional Court will earn a total of K 705,048.80 per year while the other new Judge will receive K633,384.86 in basic salary and housing allowance.

The two Judges who have been elevated from the High Court to Constitutional Court bench each add K112,299.26 to each of their old basic salary and housing allowance totalling K521,085.60 each.

The elevated Judge President of the Constitutional Court and elevated President of the Appeals Court each receive a new basic salary and allowances amounting to K698,307.88 and K603,236.34 from K665,048.8 and K547,139.88, respectively.

The two new Judges of the Court of Appeal also increase their salaries and housing allowance from K521,085.60 each to K 547,139.88 each.

These may sound like fantastic figures but, in reality, do not reflect the enormous responsibilities placed on the shoulders of each of our Judges who spend time considering arguments from two sides and then deciding on whose side the law stands.

This is an awesome responsibility placed on each one of our judges, when we consider the level of salaries, we pay them for their enormous sacrifice for the good of all of us.

This calls for drastic measures by the government to address the question of financing the Judiciary, even though we know that it will mean higher expenditure on our Judiciary.

We should do more for our Judges and Judicial officers, as a nation. The question is, what price are we prepared to pay, as a nation, in order to realise the goal of “Justice for all?”

It is the humble opinion of this author that a so-called “bloated budget” for the Judiciary, would be fully justified in the short term, in order to address the needs and challenges which have been discussed in the first and second articles, and above.

There is of course a genuine concern of the wheels of justice turning too slowly, which President Hichilema may be attempting to address in the immediate term. The President has personally spoken for the many who remain incarcerated in detention facilities due to various reasons.

But there is another problem which some of us have argued is bigger or overshadow the question of numbers of Judges in our courts. It is the question of attitude to work or the work culture among our Judges and Judicial officers themselves.

There is urgent need for change of attitudes and work culture in the Judiciary if the available time is to be maximised to clear the backlog of cases and to attend to new ones.

With regard to the Constitutional Court, with which this author is familiar, the current numbers of Judges have been exceptionally diligent in attending to cases in a timely fashion and have therefore avoided creating a backlog of cases.

I shall readily admit that, at the Constitutional Court, it is almost always the litigants who have delayed proceedings before this court, rather than the Court itself.

Of course, very highly politicised constitutional cases come with them challenges of seeking to balance between the interest of the State and straightening the law.

There are also reports of some adjudicators who have to consult politicians whenever political cases are filed.

In recent times one would hardly fail to notice certain movements at Subordinate courts level which point to pressure being brought to bear on the courts.

Over different ruling regimes, we keep witnessing the not-so-helpful transfers of our magistrates who are perceived as not being helpful to the government of the day. It is thus not unusual that cases are stalled for months or years or have to start afresh.

The question therefore arises, as to whether the recruitment of more Judges should have been the priority of this administration, rather than the provision of adequate infrastructure for our Judiciary.

At the moment, the country is going through a difficult phase with government pleading for debt relief and restructuring of our national debt by Zambia’s creditors.

In the face of these negotiations, the administration should not be seen to be increasing the public wage bill through recruitment of civil servants and now Judges, whose wage bill may be perceived as higher.

Somehow, those who want to help Zambia will be making assumptions that Zambia has no real cash problem and does not therefore need debt relief. Our real problem may be seen as priorities and how to mobilise resources locally.

This also raises a further question as to what should have been priority expenditure for the Judiciary. Government should be working towards increasing funding so as to meet infrastructure needs and less emphasis on appointment of more Judges who add to the financial and infrastructure burden.

There is need to construct new court infrastructure and to rehabilitate existing structures in order to enhance access to justice.

There is also considerable concern about the personal emoluments of both junior and senior staff at the Judiciary; their present or current emoluments are far from being motivating at all, leading these Judiciary staff into temptation.

There is need to invest resources in completing capital projects and avoid further dilapidation of the court and other buildings which are placed at the disposal of our Judiciary, especially in rural parts of the country.

CONCLUSION

The current number of Judges is not too far from the numbers deemed sufficient to deal with the cases before them, especially if a little more motivation is provided to them. The current Judges are working under very stressful condition. If the government is serious about improving and speeding the delivery of justice, the priorities should be focused on infrastructure.

The Judiciary needs a well-motivated workforce, workers who are well-remunerated at all levels. The Judiciary has been grappling with a huge amount of unpaid personal emoluments or low salaries to employees and former employees. The failure to meet these emoluments and improve low salaries for employees is contributing to diminished morale among the affected members of staff and exposing unpaid former employees to destitution.

[Isaac Mwanza is a holder of a Bachelor of Laws degree. He is Mandela Washington Fellow, governance and legal activist. In the last 20 years, he dedicated his life to work on governance and legal-related issues with civil society organisations and coordinated the World Bank’s Youth for Good Governance Program in Zambia. He was one of the two lead consultants in the publication of the report dubbed, “Electoral Justice in Zambia: Resolving Disputes from the 2016 Elections and Emerging Jurisprudence.” He authors a column in the Zambia Daily Nation titled: Court of Public Opinion. For any comments and feedback, write to [email protected]]

(Published by the Zambia Daily Nation, February, 2023)