“NOT only must Justice be done; it must also be seen to be done,” goes a common saying which was brought into common parlance in a leading English case on the impartiality of the judges.
In the R v Sussex Justices, Ex parte McCarthy, reported in 1924 and heard by the King’s Bench, the statement, now famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision, was formulated.
The outcome of this appeal case underscores the importance of judges, mediators, arbitrators and other officers in ‘refereeing positions’ to guard against any negative perception.
This is because any negative perception by a party to a case or members of the public against the conduct or connections of the handling judge or other triers of facts erodes public confidence in the system.
We agree with President Edgar Lungu that the Judiciary, particularly individual judges, should be wary of this and guard against creating negative public perception against themselves.
As President Lungu rightly put it, it is for this reason that the Judiciary should guard itself against bad elements to ensure that the independence it enjoys continues and people remain confident in the judicial system.
Like Mr Lungu said, the issue is not about whether the judges are biased or not, but about the conduct and connections which bring their verdicts into question.
According to the President, the Presidency and the Judiciary are currently under siege by people that want to systematically control them and influence their decision-making.
Indeed, some people have clever ways of penetrating the Judiciary and are currently making moves to do so, hence the need for the judges remain above reproach.
All judges should, therefore, protect themselves from exposure of clever elements by avoiding certain people and avoiding certain places or certain activities.
Their jobs entail avoiding interacting with certain people because such innocent interactions could truly sometimes be misunderstood by the public, including people who appear, or may one day appear before them.
Like the President noted, some reasonable judgments are frowned upon by the public, not because the judges that delivered those judgments are corrupt, but because they were perceived as being so or being close to some individuals.
This is regardless of whether these judges are indeed corrupt or not, or close to individuals, or not, but the mere creation of negative perception is fatal to the public confidence in the individual judges concerned and the Judiciary.
For instance, in the case cited above, in 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a magistrates’ court for dangerous driving.
The clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution.
The clerk retired with the justices, who returned to convict the defendant.
On learning of that, the defendant applied to have the conviction quashed on grounds of perceived biasness, given the clerk’s prior connection to the case.
The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.
The important issue, therefore, was not whether the clerk made any observation or offered any criticism which he might not properly have made or offered, but that he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. Hence, the conviction was quashed.
Wary of that, the Zambian Judiciary should guard itself against capture by the clever people, and President Lungu’s observation that the systematic takeover of the sector by ‘clever people’ is slowly creeping in, should be heeded.
That is the only way this wing of the State would maintain its public confidence and trust, while avoiding State capture.
This is important because most citizens resort to court actions as their last hope, meaning that without the courts they would be helpless.