“Equal justice under the law is not merely a caption on the façade of the Supreme Court building; it is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system existed. It is fundamental that justice should be the same, in substance and availability, without regard to economic status. ” INTRODUCTION For the past few years corruption has been the headline topic in Zambia. There has been a major cry from the general public that the country is full of corruption especially those in power.
Among the three major bodies of the government is the judiciary which has been targeted as very corrupt. Serious issues have been raised by the media and general public and that reform in the judiciary are necessary if at all the country is to be revived to previous times. JUDICIAL REFORMS Judicial reforms are the complete or partial political reform of a country or a country’s judiciary. These reforms are often done as a part of wider reforms of the country’s political system. Judicial reform usually aims to improve such things as law courts, advocacy (bar), executor process, inquest and record keeping.
Valery Dmitrievich Zorkin (2004) in his article “Twelve Theses and legal reforms in Russia” said “there was collaboration between judicial reforms and legal reforms. Legal reforms not only include judicial reforms but also aspects of the structural system and content of legislation, legal education, legal awareness by the public population and the cooperate consciousness of the whole legal system. Legal reforms can be the pioneer of all other reforms including reforms of the economy. Legal reforms should be an integral part of any ongoing reform process.
Legal reform is a tool for implementing necessary reforms to balance competing interests, create a dynamic and sustainable economy and build a sustainable civil society. For example in modern Russia aspects and direction of development of judicial reforms were formulated in their constitution enacted by the Russian parliament on 24th October 1991 (Russian judicial reform concept, 1991). This document still remains legally valid and applicable to date. If one carefully studies the specifics of historical evelopment in Russia he or she may assert that without undertaking a large scale of legal reforms it would be extremely difficult to succeed concurrently with judicial reforms. Another example of judicial reforms bringing development to a country is those of Alexander II. His judicial reforms are generally considered one of the most successful and the most consistent. During the reforms, new court systems and a completely new order of legal proceedings were established. The main results were introduction of a unified court system instead of the normal Estate-of-the-realm courts and fundamental changes in criminal trial.
The judicial reforms started on 20th November 1864 when the Tsar signed the decree which enforced four regulations; the establishment of judicial settlements, the regulation of civil proceedings, the regulation of criminal proceedings and the regulation of punishment implored by justices of the peace. Areas of the judicial reforms often include; codification of law instead of common law, moving from an inquisitorial system to an adversarial system establishing stronger judicial independence with judicial councils or change to appointment procedure establishing mandatory retirement age for judges or enhancing independence of prosecution.
Professor Kenneth Mwenda says in his article in the Zambia daily mail newspaper (July 13 2012) that “judicial reforms must start with reforming lawyers because judges in the first place are actually lawyers. It is from the domain of legal practitioners that we often get judges. The misconduct of an individual judge cannot necessarily or always be attributed to other judges or to the entire legal profession. It is also a truism that this misconduct starts from the way that some lawyers are natured in the legal profession as well as from their own personal character, including their value systems and the attendant process of socialization”.
Transparency International Zambia (TIZ) Executive director Goodwell Lungu says judicial reforms in Zambia should be undertaken in three forms to ensure access to justice by all citizens. “The forms should be undertaken in three forms; firstly, there is urgent need to cleanse the judiciary in order to remove the bad ones in the system. Secondly, involvement of raising the capacity of the judiciary is vital so that it is able to deliver justice. Thirdly the judiciary should be reformed to ensure speedy disposal of cases” (Times Newspaper, 11 June 2012) The judiciary needs to have enough human resource, equipment and infrastructure if at all he system has to be reformed. Reforming of the judiciary will also bring about equal and fair justice in the country. Professor Muna Ndulo in his speech at the Law Association of Zambia (LAZ) annual meeting said “the first step to judicial reform is to define the goals of reform and the methodology to be used to achieve it. It is important to put in mind that reform does not mean the same to all people; there are always people with their own agendas that often attempt to hijack genuine reform process”.
In the same speech, Professor Ndulo also said Judicial accountability as regards to judicial reform is understood as a fundamental democratic requirement. This means judges must be accountable to the public for their constitutional role of applying the law fairly and impartially. Sandra Day O’Connor (2008) says “Judicial accountability is a concept that is frequently misunderstood at best and abused at worst. Reginald Herbert Smith observed that “without access to the law, the system not only robs the poor of their only protection but it also places them in the hands of their oppressors, the most powerful and ruthless weapon ever created. (Justice and the Poor, 1919)
JUDICIAL INDEPENDENCE In order for judicial reforms to be a success in Zambia, judicial independence is very necessary. It is also necessary if at all a democracy is to be sustained in this modern world. Therefore the constitution, laws and policies of this country must ensure the justice system is fully independent from other branches of the state i. e. Legislature and Executive. Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance. Everyone is entitled to fair and public hearing by an independent tribunal. ”(Universal Declaration of Human rights) This principle entails that judicial power must exist as a separate power from executive and legislature power and it must repose in the judiciary as a separate organ of government, composed of persons different from and independent of those who compose the executive and legislature. Muna Ndulo (2012) “The United states supreme court observed in O’Donoghue v.
United States (1933) that if it be important to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows as a logical corollary, equally important that each department should be kept completely independent of the others-independent not in the sense that they shall not cooperate to the common end of carrying into effect the purpose of the constitution, but in the sense that the acts of each shall never be controlled by or subjected, directly or indirectly to the coercive influence of either of the departments. (289, US 516) An independent judiciary requires that both the individual judges are independent in the exercise of their powers and that the judiciary as a whole is independent from wrongful interference by the other branches of government. To secure the independence of judges, first they must be protected from the threat of reprisals so that fear does not direct the making of their decisions. Secondly, the method by which judges are selected and the ethical principles imposed on them must be constructed so as to minimize the risk of corruption and outside influence.
Thus the first endeavor is to protect judicial independence from outside threats and the second is to ensure that judicial authority is not abused and it is the main concern of judicial accountability. Judges should be selected from different backgrounds if at all they are to perform fully their judicial functions and have confidence from the people. This will ensure a better understanding of the experience of the people they will be dealing with. For judicial reforms process to take place judges need to be left alone by other judges including the Chief justice, they have to be independent enough to make their own decisions.
Professor Muna Ndulo (2012) observed that “In Zambia independence of the judiciary comes at a price. There are a great number of lawyers that have been by passed in appointments to the bench solely because they are perceived by ‘greater powers’ as unfriendly to the government. ” Judges and magistrates must recognize that they are supposed to provide society with highest possible standard of service and commitment and that a failure to maintain this is rightly a matter of public concern.
In order to guarantee judicial independence and impartiality, best constitutional practices and international law requires states to appoint judges through strict selection criteria and in a transparent manner. Judges should be appointed and promoted on basis of their legal skills. Failure to adhere to this, the risk of not complying with their core function which is imparting justice independently and impartially becomes high. Another reason that would promote corruption in the judiciary is the appointment of the Chief Justice by the President.
There tends to be the issue of possible excessive presidential influence in the appointment of the judges. This matter can be best dealt with by providing a suitably independent and transparent system for the chief justice. The maintenance of an independent and accountable judiciary is fundamental to constitutionalism and the protection of human rights. The worldwide emergence of constitutions with wide ranging and justifiable Bills of Right has rekindled public awareness and interests in the role of courts as a forum through which to seek individual and collective justice and the sustenance of a democratic culture.
In some countries, courts are asked to review government’s acts for compliance with the bill of rights. In the case of Marbury v. Madison (1803), U. S Chief justice Marshall observed “It is emphatically the province and the duty of the judicial department to say what the law is. Those who apply the rule of particular cases must of necessity expound And interpret the law. A law repugnant to the constitution is void. Courts as well as other Departments are bound by that instrument. Steps to judicial reform should include the establishment functional oversight bodies whose responsibility is to promote the rule of law and to compliment works of the court. The rule of law has been recognized as a central focus of domestic and international efforts to promote good governance and sustainable peace and development. It connotes the use of state power, through legislation to establish the economic and social system agreed upon by the people.
The rule of law implies the assurance of some sort of predictability in the conduct of state officials by the prior existence of a basic law covering the subject matter that falls within their fields of operation. ” (M. Ndulo) CONSTITUTIONALISM AND THE RULE OF LAW The rule of law is a legal maxim (established principle or proposition) whereby governmental decisions are made by applying known legal principles. Such a government can be called a monocracy. This word is derived from the Greek words nomos (law) and kratos (power of rule). This phrase can be traced back to the 17th century by British jurist A.
V. Dicey. This concept was similar to ancient philosophers such as Aristotle who wrote “law should govern”. The rule of law implies that every citizen is subject to the law. Constitutionalism is the adherence to a system of constitution of a government. Generally it is a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. (Constitution and constitutionalism, 1989) Constitutionalism is a necessary foundation for the rule of law.
To clearly understand what constitutionalism is, one needs to understand what the term constitution means. A constitution is a body of fundamental principles or precedents according to which a state is governed. The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government. Constitutionalism as an element of the rule of law largely depends on how constitutional limitations imposed on government are interpreted and enforced.
Liberty implies the limitation of power by law and the one institution above all others essential to the preservation of the rule of law has always been and still is an honest, able, learned, and independent judiciary (B. O. Nwabueze, 1993). From the said above, we can see that there is a relationship between constitutionalism and the rule of law. 1. The rule of law places certain limits on what the government can do and prescribes how the government conducts its business. These limitations are placed through a constitutional structure which includes separation of powers and judicial independence.
Constitutionalism, as a system of institutional arrangements designed to empower and limit the government at the same time, forms an institutional foundation for the rule of law. In particular, the constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently, for laws to place meaningful constraints on government behavior, and for established procedures to be followed.
According to Stephen Holmes (1995), there are two kinds of constitutionalism: positive constitutionalism and negative constitutionalism. “We find positive constitutionalism in the American Constitution, which not only aims at limiting the coercive power of the government, but also tries to empower and enable the government. In other words, the American Constitution is an attempt to prevent both tyranny and anarchy. In fact, the desire to strengthen the federal government, not the desire to limit it, was the motive for calling the Philadelphia Constitutional Convention in 1787. Holmes argues further that “we find negative constitutionalism in a French Constitution that was instituted at about the same time as the American Constitution. The French were so concerned about the coercive power of the government that they wrote their 1790 Constitution to solve only the problem of tyranny, not the problem of anarchy. When crisis came, the French Constitution did not effectively enable the government, and the French people overthrew the government. It was not long before Napoleon ruled France as a dictator. ” 2.
Constitutionalism strikes a proper balance between rule of law and rule of person. Satori (1987) says “either the rule of law or the rule of person, left alone by it, can be problematic. In a representative democracy, the rule of person means the rule of legislators. Under the rule of person in a representative democracy, law is the product of the “sheer will” of the legislators. The rule of person, left unchecked, presents the danger of tyranny. In contrast, under the rule of law, law is the product of judges’ “legal reasoning. ” The rule of law, by itself, can be inadequate for three reasons.
First, the rule of law can be too static; secondly, the rule of law can result in the tyranny of (unelected) judges; and finally, the rule of law, by itself, may not address the problem of political freedom. As such, the ideal representative democracy needs to strike a proper balance between the rule of legislators and the rule of law. This is done through liberal constitutionalism. ” 3. Constitutionalism is safeguarded by the rule of law. Without the rule of law, there is no constitutionalism. In short, if laws are exclusively the results of the “sheer will” of the legislators, there can be no constitutionalism.
For a constitutional structure of separation of powers, checks and balances and rights protection to exist, there must be some limits on what the legislators can do. This limit is imposed by the rule of law and implemented through an independent judiciary, the process of judicial review, and the notion that law is, at least in part, the product of independent legal reasoning by judges. “Even though our constitutions are becoming more and more unbalanced on the side of statutory lawmaking, as long as [constitutions] are considered a higher law, as long as we have judicial eview, independent judges dedicated to legal reasoning, and, possibly, the due process of law, and as long as a binding procedure establishing the method of lawmaking remains an effective brake on the bare-will conception of law — as long as these conditions prevail, we are still depending on the constitutional solution of the problem of political power” (Satori, 1987) Though a liberal constitutional government is limited, it is a strong government. Liberalism and liberal constitutionalism are not only about limiting the government’s power, but also about empowering the government.
Failure to observe constitutionalism can ruin a country’s governance setup. The touchstone of constitutionalism is the concept of limited government under a higher law. SEPARATION OF POWERS The term separation of powers originated with the Baron de Montesquieu, a French enlightenment writer. However, the actual separation of powers amongst different branches of government can be traced to ancient Greece. The framers of the Constitution decided to base the American governmental system on this idea of three separate branches: executive, judicial, and legislative.
The three branches are distinct and have checks and balances on each other. In this way, no one branch can gain absolute power or abuse the power they are given. The separate branches of government are: The EXECUTIVE is headed by the President and includes the bureaucracy. The LEGISLATIVE which includes both houses of Congress: the Senate and the House of Representatives. The JUDICIARY consists of the Supreme Court and the lower federal courts. CONCLUSION Although the Zambian public is not always clear as to how to achieve judicial reform, the cries for quality, accessible and affordable justice is loud and clear.
Judicial reforms can only be effective if there is clear commitment by leaders to operate within the law in both public and private interests. As Justice Lewis Powell said “equal justice is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system existed. It is really necessary that justice should be the same, in substance and availability or without regard to economic or social status. ” BIBLIOGRAPHY 1. Valery Zorkin (twelve theses on legal reforms in Russian Legislation and Economics, 2004) 2. www. Times. co. m/Judicialreforms/reformingprocess [20 Oct, 2012] 3. Professor Kenneth Mwenda (Judicial reforms must start with lawyers) Zambia Daily Mail article [28 Oct, 2012] 4. Professor Muna Ndulo (Law Association of Zambia Annual Meeting, 2012, p3, p10 ) 5. Reginald Herbert Smith (Justice and the poor, 1919) 6. Sandra Day O’Connor ( Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An Introduction, 2008)
Denver University Law Review 7. Don E. Fehrenbacher (Constitutions and Constitutionalism in the slave holding south, 1989, p1) University of Georgia Press. 8. Russia Judicial Reform Concept, 1991) 9. B. O Nwabueze (ideas and facts in constitution making, 1993, p189) 10. Universal Declaration of Human Rights, article 10 11. Muna Ndulo (The democratization process & structural adjustment in Africa, 2003, p339) 12. 289 US 516 (1993) 13. Stephen Holmes (Passions and Constraint: On the Theory of Liberal Democracy, 1995) Chicago: University of Chicago Press. 14. Giovanni Satori (The Theory of Democracy Revisited, 1987, p308, p309) Chatham, New Jersey: Chatham House. 15. www. americanhistory. about. com/od/usconstitution/g/sep_of_powers. htm [23 Nov 2012]
