Executive interference undermines judiciary in Zambia
AfriMAP study calls for key changes to justice system
An in-depth new study of the Zambian justice system has called for the urgent amendment of Section 5 of Services Commissions Act, which gives the presidency unbridled latitude to interfere in the judiciary.
The Act says that the president can give ‘general directions as considered necessary’, which the Judicial Services Commission (JSC) is obliged to comply with. According to the report - Zambia: Justice Sector and the Rule of Law - this flies in the face of separation of powers and is susceptible to abuse and incessant political interference by executive power.
The study, which was produced by the African Governance Monitoring and Advocacy Project (AfriMAP) and OSISA, says that such provisions makes the Commission subservient to the presidency and compromises judicial independence in Zambia.
The report also questions the composition of the JSC since the Attorney General, who is an ex-officio member of the cabinet and serves as the government’s chief legal advisor, sits on the Commission - posing a major conflict because the executive member's views are likely to mirror the views the president, instead of being objective and independent.
And even though the Judicature Administration Act gives the Commission broad regulatory authority, it is still compromised by certain sections of the Act that require presidential approval, including powers to dismiss and take disciplinary action against judges, magistrates and administrative staff.
“The government of Zambia needs to show political will and embrace reforms that will ensure that its judiciary is not only independent and credible, but is also seen to be so; this is fundamental to consolidating democracy and rule of law,” said Ozias Tungwarara, director of AfriMAP.
The study states that the negative public perception of the judicial sector has been reinforced by repeated violations of the law by executive power, dating as far back as the First Republic under former president Kenneth Kaunda. It also cites the refusal by the Zambian courts to register judgment passed by a London court on former president Chiluba for corruption.
The protection of executive power by the judiciary only lessens the public confidence in the sector.
The report also raises alarm over the way in which laws are generated, opining that the process needs to be overhauled, because it does not begin with parliament, and although the Zambia Law Development Commission plays an integral role in the process, it is restricted in soliciting contributions from MPs.
The report states that: ‘there is need to rethink this approach so that there is a clear and efficient division of labour between parliament and the ZLDC with respect to the legislative processes’.
The report also urges the government to amend the constitution to include a provision that makes it possible to domesticate international human rights treaties. The current situation has created confusion and uncertainty on the state of domestication of international instruments to which Zambia is a party, a situation it states needs to be urgently addressed.
The report recognizes Zambia’s efforts in establishing a Human Rights Commission, which is a commendable step in ensuring that citizens can seek redress when rights have been violated. It cites the functions of the institution, created in 1996, as a positive step that has enhanced the justice sector and rule of law in Zambia.
The study by Joyce Shezongo-Macmillan focuses - and makes key recommendations - on the following six thematic areas:
- Zambia’s obligations to human rights treaties;
- Government’s respect for the law;
- Management of the justice sector;
- Independence of the courts;
- Crime and punishment; and
- Access to justice and donor relations.