the Supreme Court bench highlights the necessity to put justice at the
forefront of our development agenda.
A country without a functioning and responsive Judiciary will have
great difficulty in achieving social and economic development as
anarchy, arbitrariness and chaos take root.
A fundamental prerequisite for any positive form of development is a
reliable and predictable system of justice for all. To this end, it
cannot be over emphasized that more attention and resources must be
invested in ensuring that the judicial system works well at all
levels.
The High Courts of Zambia are challenged to offer a continually
improved service to the country through an increased population of
Judges sitting on the bench, and improved service delivery and
monitoring systems. This age of information technology offers cost
effective options for the judiciary to operate much more efficiently
than it currently does. Missing or incomplete case files are not an
unusual phenomenon, therein robbing individuals or institutions of a
chance to access fair justice. Monitoring and evaluation of cases in
the judicial system is cumbersome and at times almost impossible as a
consequence of the overwhelming workload and manual mechanisms
currently in place. Opportunities for peer review mechanisms within
the judiciary to set benchmarks and best practices are yet to be
explored as part of an internal self regulating system.
All these justice promotion initiatives have been employed in various
countries across the globe and have contributed to creating confidence
in the judicial systems, and there from, attracted investment and
support from both domestic and foreign resources.
Zambia has embraced some new programs to enhance the delivery of fair
justice in the business sector. Court Annexed Mediation and
Arbitration has become an integral part of the justice delivery
system. Many commercial contracts today include arbitration clauses in
an effort to avoid protracted litigation, and to help decongest the
courts around the country.
The Magistrate Courts adjudicate the majority of nontraditional cases
across the country. Although there has been a significant investment
in upgrading the infrastructure that delivers justice through the
Magistrate courts, there are many challenges that impact on the
quality of service delivered which need to be addressed. Similar to
the challenges in the High Courts, the Magistrate Courts can benefit
from information technology inputs that can support both more
efficient delivery of justice, and a better quality of service
delivery to the public. The majority of small business litigation
currently goes through the Magistrate Courts and any improvement in
this sector will be a welcome development.
Local Courts have continued to be the most prolific mechanism for the
delivery of justice in Zambia. Culture and tradition form the
foundation for adjudication within the frame work of principles that
govern the operations of the Magistrate Courts, the High Courts, and
the Supreme Court.
The complexity of culture and tradition demands that Local Court
adjudicators are conversant with particular traditional and cultural
values in addition to fundamental universally accepted judicial
benchmarks and processes. A Local Court is characterized by the
culture and traditions of the litigants, and the cause to be
adjudicated. The permutations are complex and issues can provide new
challenges as the country and people’s lives evolve. There is
therefore, a compelling reason for public investment in the Local
Court delivery mechanism to consistently improve the quality of
justice through improved remuneration, better infrastructure, and the
use of information technologies where possible.
The Small Claims Courts have added to the justice system with the goal
of offering inexpensive justice to the Small and Medium Business
Enterprises (SME’s) country wide. This initiative is welcome to the
business community and there are models in Africa and South America
where it has worked successfully. There are some concerns however, in
respect to the service delivery mechanism that relies on seasoned
lawyers to adjudicate cases. Lawyer fees tend to be beyond the
capacity of SME’s and therefore Government may have to meet the short
fall in the Small Claims Courts justice delivery system. Time will
tell whether this initiative will be sustainable or if a case can be
made for the need of further development along the models of Brazil or
Guinea Bissau, which are both developing economies much like Zambia.
The judiciary also plays a vital role in checking the performance of
the state in governing the country. Some key indicators include how
the judiciary interprets the national constitution to create a common
understanding amongst the people of Zambia and their Government. The
judiciary is essential in performing the duty of safe guarding the
provisions of the national constitution on behalf of the citizens. The
judiciary should be in the forefront of dispensing justice that
impacts on the performance of the state alongside the rules,
regulations, and various legislations that are enacted.
The Bill Clinton White House saga brought about questions of the
President being ‘responsible but not guilty’ or, ‘guilty but not
responsible’. These are new developments in human behavior that our
judiciary will no doubt be confronted with sooner or later.
The Electoral System is the basis for a peaceful and sustainable
change of Government in any country. In Zambia, the electoral system
has worked reasonably well and there is good opportunity to build on
this success and continue to improve the legitimacy of the electoral
system with possibly a spill over to influence the wider judicial
system.
Elections will more often than not end in controversy due to the fact
that there has to be a winner and at least one loser. A period of
wound licking and healing has to be accepted, but if the public are
largely satisfied with the electoral system then the Government of the
day can legitimately carry on the business of managing the country
until the next General Elections. That is one of the foundations of
democracy as we know it.
Justice for all takes a bird’s eye view of a country. Women and the
feminist focus is an important component of the justice system that
must not be sidelined. Businesses and wealth creation institutions are
essential to the nation building process. Children and the physically
challenged represent the future of a nation, and the largely
disqualified human resources of a country respectively. Foreign
nationals and foreign companies make a contribution to social and
economic development in any country and are therefore entitled to the
same justice as everybody else.
The judiciary is considered as the third leg of Governance alongside
the Parliamentary Legislators and the Government Executive. A
compromised or ineffective judiciary allows the country to degenerate
into a Legislator-Executive cartel driven state that seldom supports
the development of freedoms, and quite obviously, is ill equipped to
promote social and economic development that will uplift the lives of
all its citizens.
Published 28 July 2009
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