•ACTING Chief Justice Lombe Chibesakunda (Left) with Dr Guy Scott during the Commonwealth Magistrates’ and Judges’ Association Conference.

By BRIAN HATYOKA –
JUDICIAL independence has continued to be one of the topical subjects at various forums locally and abroad.
In many countries, courts  are dependent on Governments for funding but the judiciary is still expected to be independent from other arms of Government namely, the executive and legislature.
Recently, the Zambian judiciary hosted a three-day 18th Commonwealth Magistrates’ and Judges’ Association (CMJA) annual conference at Zambezi Sun Hotel in Livingstone under the theme is Judicial Independence: “The Challenges of the Modern Era”.
The conference was aimed at promoting better understanding amongst judicial officers of all ranks and from all parts of the Commonwealth of judicial independence issues and to explore the approach to those issues in different parts of the Commonwealth.
It was also aimed at promoting greater awareness amongst the Magistrates and judges of the Commonwealth, of international treaties and law relating to the development and access of justice and to consider the practical application of the body of law.
Further, the gathering was aimed at enhancing networking within the Commonwealth Magistrates’ and Judges’ Association on judicial developments.
Some of the topics discussed during the conference were building public confidence through accountability, identifying and eliminating corruption in the legal system, improving the terms and conditions for magistrates as well as the need for chief justices to promote judicial independence.
Other subjects were on the process of removal of the senior judiciary, women in law, cyber crime, alternative dispute resolution, family law and international issues, criminal law and sentencing reforms, building a gender, ethnic, social and religious balance in judicial office as well as producing succinct and quality judgements in a
timely manner.
CMJA president John Vertes said judicial independence was a fundamental part of any democratic society.
Speaking in an interview at the end of the conference, Mr Justice Vertes observed that the aim and objectives of the gathering had been met and received well by all delegates across the Commonwealth.
On the appointment of judges, Mr Justice Vertes said the process should be fair and impartial to enhance public confidence.
“Here in Zambia, there is Judicial Service Commission that makes recommendations on the appointments of judges.
In many countries, the controversy is on whether the executive should appoint anyone they wish or they should wait on the decisions of the Judicial Commission. This is something we discussed,” Mr Justice Vertes said.
He said the main point was that the process of appointing judges should be open and transparent to ensure candidates had diverse background.
“We need to allow qualified men, women and minorities to have equal chances of being reviewed and considered on merit.
The methods differ from country to country but the main point is to get judges who are capable, ethical, impartial and independent whether that person is appointed by the executive or ratified by parliament,” Mr Justice Vertes said.
On the removal of judges’ topic, Mr Justice Vertes said the concern was that the standards for the removal varied from country to country.
He said the Commonwealth had international legal instruments which stated that judges should be removed due to misbehaviour or incapacity in an event that they could no longer carry out their judicial functions
Mr Justice Vertes said international instruments stated that judges should only be removed through an independence and impartial process through a fair investigation without any interference by the Government in the process.
“Judges can be removed where public confidence in them has been lost and this is a very high standard.
“Judicial Councils or Commissions can follow the matter and recommend for the removal of a judge,” he said.
Mr Justice Vertes said it was not an executive decision by the President or the attorney general to remove a judge but that there has to be a fair and independent process to guide on such removal.
“In most countries like in Canada where I come from, the Judicial Council will conduct an investigation if there is a complaint against the judge.
If the Council finds a case that warrants the removal of the judge, the Council will recommend to Parliament for the judge to be removed,” he said.
On public complaints of delayed judgements, Mr Justice Vertes urged Governments to provide adequate resources to courts to enhance the delivery of justice and instil public confidence in the judiciary.
Mr Justice Vertes said the problem of inadequate resources for courts was a big issue in many countries in the Commonwealth countries and it had potential to remove public confidence in the judiciary.
“The problem of inadequate resources for courts is big in many countries and this affects the smooth operations of the judiciary.
Many Governments usually squeeze the courts in terms of funding and it becomes much harder for judges and magistrates to do their job and prepare their judgements easily,” he said.
Mr Justice Vertes said justice delayed was justice denied and hence it was important that judgements were rendered in a timely manner.
“I know that in different places there are different systems but it is required that the parties involved in a case know the reasons for the
delays.
In Canada, there is a protocol that judgements should be delivered within six months of the case and if the judge continuously to delay the case, the chief justice will tell the judge not to attend any workshop or any other meeting until the case is concluded,” Mr Justice Vertes.
He said there should be more control given to the chief justices and court administrators over matters of budgets and court administration.
“Chief justices and court administrators should have more say in the setting of budgets and not just be at the receiving end.
They should have control on how budgets are spent and that is an important part of judicial independence,” Mr Justice Vertes said.
He noted that court budgets were usually cut down while staffs were reduced and some buildings were shutdown which was not correct.
“By all means judges and magistrates should be involved in planning
for budgets and administration,” he said.
On identifying and eliminating corruption in the legal system, Mr Justice Vertes said judges and magistrates should be well paid so that they resist the temptation of engaging in corruption.
He said corruption was big issue as it could remove public confidence in the judiciary and hence it was important that the fight against corruption was spearheaded on top by chief justices so that other officers followed the example.
We are saying zero tolerance for corruption but there are little things that can influence a judge or a magistrate.
For instance, a government official can influence a judge and promise him or her favours afterward and we are saying judges and magistrates should be given better salaries so that they avoid such temptations,” he said.
On the relationship between the media and the judiciary, Mr Justice Vertes said the judiciary had obligation to explain to the media on what happens in the court to create mutual understanding.
He noted that the media usually puts pressure on the judiciary simply because they wanted to sell newspapers.
“The media sometimes sensationalise what happens in the courts and as judges, we have an obligation to explain to the media on what happens in the court so that the public and the media understands better,” he said.
And speaking when he officially opened the conference, Vice President Guy Scott said Zambia was committed to upholding the separation of powers and the independence of the Judiciary.
Dr Scott said the country was doing well in the area of judicial independence as the Zambian Government did not interfere in the operations of the judiciary.
He said three arms of Government namely the judiciary, legislature and executive were operating independently in the country.
“In the area of judicial independence, we are doing well as a country as the three arms of Government namely legislature, executive and Parliament are working independently without any interference,” Dr Scott said
In terms of promoting gender balance in the judiciary and the country at large, Dr Scott said the country was doing well as more than 50 per cent of women were occupying key positions.
He, however, wondered why most women were sidelined by political parties to contest for parliamentary positions.
Dr Scott also asked the judiciary to come up an appropriate legal framework that would discourage early marriages.
In her 22-paged keynote speech to the conference, Zambia’s acting Chief Justice Lombe Chibesakunda said judicial Independence was a hard earned value that was cardinal to the promotion and protection of justice.
Ms Justice Chibesakunda said judicial independence was also an incentive for economic development by promoting investor confidence in the judicial system.
“Judicial independence is the oxygen of an active and inspiring judiciary and it also is a lubricant of judicial machinery.
To this end as a value, it must be jealously nurtured, protected and promoted. Otherwise abuse or misuse of Judicial Independence may have results that are too ghastly to contemplate,” Ms Justice Chibesakunda said.
She also said the judiciary needed to courageously address was corruption which had proved to be a huge challenge to the promotion and protection of Judicial Independence.
“Bribes corrupt the mind of an adjudicator and compromise judicial independence and diminish the reputation and integrity of the judiciary. Corruption by one adjudicator affects the standing of the whole Judiciary.
“When we open ourselves to corruption we disgracefully surrender our independence to the dictation of the paying master. We must have a zero tolerance approach to corruption,” she said
Ms Chibesakunda noted that the media had sometimes internationally sought to influence the outcome of some decisions in which they had some interest by running stories and making adverse comments of ongoing cases more less undermining the judiciary.
She also said there was a school of thought which stated that the choice of judges should not be subjected to ratification by Parliament because that was considered to be an intrusion in the independence of the judiciary.
Ms Justice Chibesakunda said countries could emulate India where fellow judges chose other incoming judges.
She said the independence of an individual judge meant that the judge was subject to no authority other than the well established usages and values in the law.
Ms Chibesakunda said the process of selecting and appointment of judges including magistrates should be considered in line with the candidate’s integrity, independence of judgment, professional competence, and commitment to uphold the rule of law.
“The judicial arm of Government should not be part of the executive arm and should not be subject to the administrative decisions of the Executive or Legislative organ.
One school of thought is that even the choice of judges should not be subjected to ratification by Parliament because that is considered to be an intrusion in the independence of the judiciary,”
Ms Justice Chibesakunda said.
She noted that the selection and the appointment process of judges differ from one jurisdiction to the other.
“In some States in the United States of America, judges go for elections. They campaign for votes like parliamentarians. A question may rise whether such judges can be said to be independent,” Ms Chibesakunda said
She said it was certainly true that a judge and the institution as a whole may in some instance suffer from improper influences, threats or interferences either directly or indirectly.
“It is, therefore, my submission that laws must exist that protect judges or magistrates from external and internal influence together with laws that make the judiciary accountable.
The notion of judicial independence in my assessment essentially entail that judicial decisions are based on facts and law without any undue influence, by private interests, media or other branches of government,” she said.
Ms Justice Chibesakunda also said the provision of adequate judicial conditions of service played a key role to attract and retain qualified judges and persons of integrity.
“Here I am talking about salaries sufficient enough to support our lives and our families without necessarily resorting to other sources of income that may potentially affect the independence of judgment
Security of tenure is also a key factor in ensuring Personal Judicial Independence. Promotion to higher ranks in the judiciary is another important factor,” she said.
Ms Justice Chibesakunda also said the protection and promotion of individual independence must also be considered in light of judicial security.
“The question is, do we enjoy adequate protection from personalsecurity threats? The protection provided by the police in many of our judiciaries is fraught with inadequacies and limited, and generally restricted to judges only.
“So the constitution and any other legislature must generically guarantee all these,” she said.
It is only hoped that the various views expressed and recommendations made during the conference would be implemented to enhance judicial independence and ultimately promote speedy delivery of justice.