Any institution that lacks the ability to introspect will eventually implode, or if not, it will transfer its weakness onto its partner institutions. If an institution, or country, cannot hold a mirror to itself and critically admit its flaws with the intention to finding honest solutions, then collapse is almost predictably inevitable. This is why institutions of government are designed in a way that they outlast the normal period of service for any individual- and their inevitable flaws- at all ranks. Nations that rank high in this introspective mastery have had the courage to review and rectify errors committed through their courts and institutions of state prior.
Therefore, part of the logic behind the tripod structure of government, Executive, Legislature and Judiciary was not just to check possible excessive power at executive level and provide balance. It was not to pronounce the independence of the judiciary from political influence either. Instead, some of the reasons were that these institutions would ultimately prioritize and protect the national order above personal, political, religious or even regional differences that are sometimes artificially driven for gain.
Of all the three arms of government, the judiciary is possibly the most different and sensitive because it has a hierarchical system of order meant to be objective and indifferent to emotion or undue influence, whether financial or otherwise. Once such a system of undefiled order begins to allow political influence to shape its decisions, it could become hostage to the same political escapism and public pandering common to politicians everywhere. There are institutional and interpretive reasons for this possibility.
The major institutional reason is caused by the constitution which states that all three arms of government derive their authority from the people (see The Constitution in Part VII dealing with the Executive; Article 61: Principles of legislative authority and Part VIII Judiciary). According to this structure, the only office directly answerable to the people, and therefore public interest, is the highest office of the Executive – the President. This is where public interest is live and consequential not just at electoral level but also in terms of legacy. It can be proposed that all strategic executive appointments and recommendations are made with full awareness of this; and thus, the need for the oath of allegiance to the executive; or in other words, to the electorate.
Per constitution, the President receives candidate recommendations from the Judicial Service Commission for the high office of Chief Justice. Whoever is ultimately selected and ratified by the National Assembly becomes an officer that serves public interest. The problem is when the judiciary mistakes public interest for political interest and justifies political emotions as noble pursuits of public interest through the courts. It must not escape the mind that public interest is not stagnant and indifferent; it can be swayed or ignited to achieve a purpose as sinister as non-electoral regime change. Examples can include the Arab spring which began as an organic grassroots call for public interest and representation, but became hijacked to achieve interests of external parties.
Infact, that also informs the interpretive reason why justice will be absent in the judiciary if public interest is misunderstood or misconstrued. Historically, every period has a theme that informs its politics at global and national levels. For example, there was a time when apartheid was legal and practiced as a norm in the same way Nazi Germany under Adolf Hitler operated with protective sovereignty. In Rwanda, the same could be said for the legalized segregation that led to the genocide in 1994. Here in Zambia, the absence of civil liberties – free press, freedom of association, of political expression and so on– were all barred from 1972 until the advent of democracy forced a change in 1991. Indeed, nations that started and benefited from slavery and colonialism, for example, made significant legal changes and became examples of human rights and civil liberties. So clearly, the law can be forced to view public interest through political lenses.
What can we say to this? That in the aftermath, where politics seeks vengeance to appease the masses, it must be role of the judiciary to instead seek restorative justice that builds the reputation of the judiciary as evidentially impartial. This comes with the courage of introspection so that there is an ingrained agreement that if office-bearers in the executive and legislature can err, then those in the judiciary are no exception. They too can be swayed from achieving justice.
Political Justice is not just an exercise of reviewing past errors of bygone regimes but the courage to have a sense of restorative justice that neither favours the accuser, nor the accused. It is also meant to establish an objective example for the future. For in this fog of public manipulation and politicking, institutions of public interest and law must not be held hostage by the momentary emotions created for political reasons.
Justice, through the arms of Government must have at the core, the long-term vision of the nation. It must grasp that accusations are easy to make. That perception is even easier to manipulate because people often believe what they are shown; even worse if that image and sound is repeated incessantly. Where the law is necessarily blind, Justice must be left to have its eyes cast wide open if we are to avoid making costly judgement calls that only serve to inspire a cycle of retribution that does not agree with justice.
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