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DEMOCRACY AND THE JUDICIARY– PART II

It is enshrined in the laws of Zambia that both the Republican President and the Speaker of the National Assembly are impeachable subject to laid down constitutional procedure.  Paradoxically, the law makes no such clear reference towards impeachment or removal from office of the Chief Justice in similar concisely specific language as it does for the President and Speaker. The law only speaks to the removal of judges from office pending submissions and investigations to the relevant commission.  

The referenced specific points of law in question are Article 108: Impeachment of President; then Article 83: Removal of Speaker on specified grounds; and Article 143: Removal of judge from office. 

The law proposes that all three state organs, namely Executive, Legislature and Judiciary are either equal or, at least independent of each other. The most obvious reason is that two of the three state organs are direct functions of the electorate and therefore prone to populism and the inconsistency of basic politics. The Executive, as a manifest of the State itself, is comprised of elected officials at its highest functions – President, Vice President and the majority of Cabinet members, for instance. Their mandate can only be extended by electoral or public consent. 

Even if parliament is somehow manipulated to legislate the extension of their term of office, it becomes difficult to sustain that extension if that mandate does not have the blessing of the electorate. This scenario typically results in an ungovernable country locked in civil unrest. Parliament itself is a function of the electoral system and cannot impose a candidate on the electorate; it is the electorate that send their preferred candidates to parliament. So, for both the executive and the legislature, the masses actually have some influence on who should represent them.  Given this position, we can propose that the impeachability of the President and Speaker is a function of practical democracy so that positional power does not override electoral (or voting) power.  

As such, the real question is not why the Chief Justice is not directly impeachable, but rather why the Judiciary is isolated from electoral-led influence, or popular politics. The easiest answer is this: that if democracy is about people power and the electoral contestation of that power, then conflict and consensus are hard to achieve and achieved only through majoritarian means. In this chaotic environment, an objective decision-making mechanism that is isolated and protected from populism is necessary, thus the judiciary. This is the easy answer. 

However, the law approaches this question by stating clear its intentions of having an independent judiciary at functional and financial levels in Articles 122 and 123 of the constitution. Functional independence protects the judiciary from any external influence in making its decisions. Financial independence allows the judiciary to have reverence for justice than money so that law has value and not a price at which it can be bought.

Incidentally, this is why the Benefits of Former Presidents Act Cap 15 of the Laws of Zambia was conceived in the 1990s: for the financial and operational integrity of the Presidency. It was never about building retirement homes for presidents even while in office, but rather to secure the integrity of the highest office and ensure that decisions are made in supreme national interest. It is not a ruse to take advantage of taxpayer funds by the state to secure those already in privileged positions as it has been misunderstood. 

This notion, as logic and law, overrides the weakness of human nature to serve and protect those who provide them financial favours. For the judiciary, therefore, if they are funded (sufficiently) by taxpayers, then no taxpayer will have more claim to justice over others. This is the principle of public interest in leadership.   

If we are agreed that Judicial authority functions as the impartial organ in a system inherent of public and popular influence; then perhaps, the true custodian of democracy could be the Judiciary since they must be objective in serving national interest. If this is true, then the parliamentary ratification of the Chief Justice must not be a simple and foregone conclusion once the President expresses their preferred candidate. Secondly, there must be a clear separation of populist influence on the judiciary so that their action, or inaction, is not pushed by electoral cycles.  

This means that judges must be protected from populism that may injure their right to make independent decisions in the future. Conversely, judges, too, must not hold themselves ‘in a class apart’ from common society. Their work is far too important to be lean minded.  To close this discussion, a necessary reminder of the role the Judiciary played in the rebirth of Zambian democracy is essential. That even after the constitution was amended after massive public pressure to allow plural politics and free society, there were 23 injunctions between January 1991 and October 1991 by the political players at the time. Most of these actions advocated free gathering (rallies) and free speech (radio and television coverage for all) when it was possibly suicidal to do so and unheard of to have more than one political party. At that time, the judiciary took subsequent bold decisions, not on the side of the political protagonists, but for the integrity of law, for the people, and out of this extended courage, democracy was reborn in 1991 November.  

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