Our judiciary is becoming increasingly associated with
Some of these may be said to be unjustified, but
since it is what people feel about our judiciary—what people think—it must be
appreciated as a deeply felt dislike about the conduct of our judiciary, rather
than a momentary irritation with one or two decisions
it has made.
We cannot dismiss these feelings and thoughts as mere false
perception about the doings of our judiciary. People strongly feel this is the
worst our judiciary has been since independence in terms of impartiality when it
comes to dealing with matters in which the president and his allies have an
We continue to reflect on the role that the judiciary is today
playing in our country.
We ask ourselves repeatedly: whose interests is
our judiciary today primarily serving? Are they serving the people or those
running the executive and their allies? Is this a judiciary of the people, by
the people, for the people?
This is an important question. Our people
need to feel that those men and women who occupy those important offices are
there to serve the interests of the state, not a transitory
If our people feel, as they now do, that the judiciary is
serving the interests of the government of the day and more specifically of the
president of the day, as seems to be the case, a crisis of historic proportions
Before we know what is happening, the judiciary is going to
become an irrelevant institution incapable of commanding the respect of any sane
citizen, including those benefiting from their decisions.
This is not
far-fetched, and should cause our dear brothers and sisters who occupy those
important positions to stop and think.
The judiciary is a pivotal
institution that has played a key moderating role on the potential for abuse of
power that successive governments have had.
What is worrying now is that
the judiciary in a multi-party dispensation seems more timid and more
compromised than what we saw in the one party state.
Indeed, if the
judiciary of 1990-1991 behaved in the way that the current judiciary seems to be
behaving, we doubt that we could have had a peaceful transition of
We say this because we should not forget that the judiciary played
a key role in tempering down the ferocity of the one party state hegemony over
power and state institutions that UNIP had and the temptation for abuse of that
The MMD ran to our courts for protection of fundamental rights and
freedoms on a number of occasions during that struggle. The courts were bold
enough to rule justly and give the people what they deserved.
tried to tamper with the people’s right to gather, appropriate orders were given
which allowed people to express their views.
When the state broadcaster,
misbehaved in their coverage of the events surrounding that momentous move for
change, again the courts were on hand to protect the people and their
We cannot ignore the rich jurisprudence that our courts
developed to regulate the then government’s use of detention as a means of
asserting its authority when threatened.
Again, the courts were not
timid, and people of all sorts of political beliefs could turn to the courts to
challenge their incarceration with the belief that justice would be
Even in the more serious scenario of treason, accused people could
expect that their courts were capable of freeing them if they were truly
innocent or indeed when there was no evidence to connect them.
happened in the 1980 coup attempt where, prominent amongst those who were
acquitted, was Heritage Party president Brig Gen Godfrey Miyanda. There is no
doubt that the government of the day wanted Brig Gen Miyanda convicted. But he
was acquitted. We wonder whether this is possible today.
judiciary seems to be in the forefront of promoting and defending
This is a judiciary that is today participating directly or
indirectly in the most ruthless of injustices.
Look at the way they have
dealt with the contempt case involving Lusaka lawyer Nsuka Sambo.
is the way our courts are going to enforce their demand for respect, then
something is very wrong.
It is amazing that the fraternity of lawyers has
kept quiet when a manifest injustice has been done.
Are people going to
be imprisoned for three years for their thoughts and private opinions? Who will
survive this unlimited use of judicial power?
Our courts are supposed to
be the bastions of justice and compassion. But what we see is injustice without
compassion from them. We are grateful that we have had the opportunity to learn
a little law which enables us to analyse, at our level, what has
Sambo never went before any court of law and pronounced any
insult or disrespect for the court. But the Supreme Court, accepting the
evidence of his client, set itself up as a court of first instance and summarily
convicted Sambo and sent him to jail for three years.
Contrast this with
what happened in the case of Sebastian Size Zulu, who today has even been
honoured with the rank and status of State Counsel. The same court laid down the
rules for handling contempt. It said that a court cannot deal summarily with
contempt, unless that contempt was committed in its face.
The court also
said the offended court must be careful not to overstep the norms of justice.
But this is exactly what has happened in the case of Sambo.
This poor man
was arraigned before the Supreme Court, tried and convicted there for a contempt
that he is alleged to have committed in his office. Where is Sambo going to
appeal to if the Supreme Court constitutes itself as a court of first instance
and tries him summarily?
Our people are seeing these things, these abuses
of power and wondering where we are headed.
Today, it is not only the
executive that is abusing its power, but also the institution that is supposed
to be the last man in the defence of our people seems to have vacated its post.
This is what the judiciary is doing.
Trying to insulate itself against
criticism will not improve its image nor prop up its prestige which is necessary
for it to carry out the function the Constitution requires it to.
Queen Elizabeth said in London on November 24, 1992, “No section of the
community has all the virtues, neither does any have all the vices. I am quite
sure that most people try to do their jobs as best as they can, even if the
result is not always entirely successful. He who has never failed to reach
perfection has a right to be the harshest critic. There can be no doubt, of
course, that criticism is good for people and institutions that are part of
public life. No institution—city, monarchy, whatever—should expect to be free
from the scrutiny of those who give it their loyalty and support, not to mention
those who don’t”.
We agree with Queen Elizabeth that no institution
should expect to be above criticism. And in our context, we don’t think that any
institution in this country should position itself above the criticism of our
Our people should have the right to criticise and express their
frustrations without being ‘sambod’ in the same way that poor Sambo has been
sent to jail.
The judiciary must not place itself above criticism and
above society. It is not populated by saints.
We have the case of Matthew
Ngulube to show that even the best legal brains, the best judges, can fall to
corruption and abuse. What will happen if our people drop their guard and let
those running our judiciary do as they please, answering only to the dictates of
those in power and not to the people?
People know what is going on.
People know when the judiciary has done the right thing and when it has done the
wrong thing. We should not forget that recently, the public, in response to a
Transparency International study, said they were not confident that our
judiciary is beyond corruption, which is something that our judiciary should be
very concerned with.
We hope that our judiciary has not reached the stage
where, like the executive, they don’t care what the people feel and think about
them. Those in the executive don’t care about what the people think or say about
them in terms of corruption and abuse of power.
Our people have the right
to express their opinion. And every day, they are forming their opinions about
each and every adjudicator in this country.
There is a growing feeling
among many of our people that justice in this country is increasingly favouring
those who have means. The poor are being sent to jail for the slightest
infractions of the law and yet the rich and politically powerful get away with
Our people have seen the amount of properties and other assets
that Frederick Chiluba and his tandem of thieves acquired using stolen public
funds when they were in power.
We have shown pictures of some of these
properties. We have covered many court cases that talked about them. Who is
going to convince our people that these thieves should be allowed to retain
their ill-gotten wealth? What is their judiciary doing about this? In the eyes
of many of our people, the judiciary, by some of its decisions, seems to be
protecting those who have stolen from our people and are supported by those in
power, by the President.
We cannot run away from this perception, and if
we do, we only cheat ourselves. In the eyes of many of our people, the judiciary
has joined Rupiah in protecting the plunderers, the thieves and their
This perception cannot be ignored. Where are our people going to
turn to when those they have elected to represent them steal from them? The
judiciary needs to do more to win back the confidence of our people.
must stop being insular and take its rightful place as a check on the excesses
of the executive.