A methodical and thorough vetting process of the judiciary is an absolute necessity to remove impostors and criminals who have besmirched and undermined public confidence in the institution.
Our colleagues in Kenya have taken the same path to create a judiciary that now enjoys public confidence because an independent mechanism exists to remove those that are incompetent, Compromised or indeed corrupt.
There is a very common perception that the cartel, notorious for judicial foul play, played a major hand in the recruitment of the new crop of serving judicial officers.
Predictably, most submissions to the ongoing commission on Legal reforms have centered on the integrity of the judiciary.
The most pervasive impression is that our judiciary has been seriously compromised because the bench has been packed with “user friendly” judicial officers who will do the bidding of the party in power.
Examples have been given of junior officers leapfrogging senior officers to critical and sensitive areas of the institution, thereby creating serious frustration, division and loss of morale. At the same time independent judges that have presided over politically sensitive cases, with courage and conviction; have been transferred out of Lusaka.
It is common knowledge that most contentious issues involving the Government are filed before the Lusaka High Court
This has the effect of undermining any sense of confidence and security in the rule of law. There is a fear that and its maintenance by a professional cadre that is accountable to the law. Instead of equity, those without the means must suffer the indignity of being looked down upon by a system that has little or no regard for the lowly.
There is a very distinct impression that not all is well in the hallowed corridors of our judiciary. One petitioner actually suggested the existence of a syndicate in which lawyers collude with Judges and litigants.
The notion that the Judiciary has been compromised by the executive and other interest groups
As Justice Brandeis explained in Olmstead v. United States “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulous sly. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law- breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”
Sadly in our context, even the barest minimums standards of judicial process are often not met.
Firstly the presumption of innocence of an accused is only guaranteed in breach than in execution. Suspects, who suffer the misfortune of being incarcerated in remand prison, suffer the horrendous and inhuman conditions endured by convicts.
To compound the inhumanity there is no guarantee of a hearing within a reasonable time. Remandees who are unable to mobilize the support of legal counsel are more often than not forced into long trials that are punctuated by adjournments and other administrative problems.
Without legal representation the maze of “legalese” will confound even the most educated Zambian resulting in technical conviction that should not have taken place.
Overall; access to justice has become more and more predicated on financial capacity of litigants or the accused, to pay their way into justice.
Time has come when justice will be delivered without regard to financial ability, association to power of indeed patronage.