Introduction
Zambia have accepted norms for the protection and implementation of human rights and this is constitutionary provides for in section iii of its constitution called the bill of rights. In order, for the people of Zambia and other person residing in Zambia to fully realize and enjoy the said rights, various legal scholars, political scientists, international organization and human rights activities all have positioned the potentially important role an independent judiciary can play in securing constitutionally promised human rights. Indeed some asserts that it is the indispensable link machinery for securing individual protection against human rights abuses. It has been argued for long that as a necessary check on the potential excesses of both the executive and legislative branches, only an independent and impartial judiciary may effectively guarantee the protection of human rights[1] This paper therefore, discusses the above statement, in light of the judicial independence and human right protection in Zambia. The ordinary meaning of the word judiciary is simply ‘the judges of the country collectively[2]. It also refers to a collective name for all the courts in a country[3]. The term judiciary is used to mean the courts, the judges and all the judgements made on the alleged violation of human rights.
Structure of the paper
This paper in organized as follows. The second section following the introduction provides the theoretical framework on the judiciary. Section three provides the division of power in the Zambian context. The judicial independence and human protection in Zambia is discussed in section four while section five provides the discussion on the promontion and protection of human rights while section six provides the conclusion.
Theory of the separation of powers
Bodin one of the earliest thinkers of the modern period saw the importance of separating executive and judicial powers[4]. He further insisted that the prince should not administer justice himself, but should delegate his powers to an independent tribunal[5]. The rationale behind this, is based on the belief that the lack of separation of the two powers would mean indiscriminate mixture of justice and mercy, of strict adherence to law and arbitrary departure from it. It is expedient that the legislative and executive must needs be separated and certainly it is un wise to invest the makers of the law with the duty of enforcing them for either they may exempt themselves from operations of such laws or may suit the laws to serve their own ends[6]. This would also creates room for arbitrary rules unless clear limitations are laid down. Protection against arbitrary rules is a condition which every citizen expects government to provide for them[7]. The separation of the powers of the government is inevitable in this case so that different powers are exercises by different organs of the government to provide a system of checks and balances so that non of the organs becomes over powerful. The World Bank (1991) further contends that the legal orders established on this foundation serves to regulate relations between individuals and groups within society as well as between citizens and the state[8]. A properly constituted judiciary is one of the best means by which this condition can be secured because of the duties bestowed upon it. Among the various function performed by the judiciary is the protection of individuals against encroachment of the state on their liberties[9]. The functioning and independent judiciary is very vital[10]. An independent judiciary is a judicial system where judges exercise unfettered discretion in the interpretation of the laws and administration of justices and they should remain uninfluenced in the discharge of duties[11]. Another important dimension of the an independent judiciary is that the courts must be separate, independent agencies bound by their own rules of procedures and determining cases according to publicly known laws and not as an instrument of the regime in carrying out its political and general purposes[12]. Some attributes of the independent judiciary are that the judges of the country should be free from restrictions, influences, inducements, pressures or threats, direct, or indirect from the executive, the legislature or any other quarter, when they hear cases. Such condition would enable them to consider matters with complete impartiality and freedom based of the law and the facts presented before them. The second attribute is that the judges should enjoy security of tenure, that is to say, no judge should be removed from his/her office hounded on the ground that he or she made a decision that did not please the executive. But that the judge should be removed from the office for inability to discharge the functions of his/her office due to infirmity of body or mind and in accordance to the procedure provided for in the constitution. Thirdly, that the renumeration of the judges should not be subject to annual approval by parliament, but should be paid direct from the country’s consolidated funds of the treasury[13]. Independent judiciary goes together with impartiality[14]. Impartiality refers to not supporting one person or group more than the other[15]. The deciding of cases fairly and impartially establishes public confidence in the court system and judge UNDP (2006). The maintenance of the independent and impartial judicial both in letter and in spirit is the basic condition of the rule of law and as such that of liberty of the people and human progress[16].
Judicial independence in Zambia
The powers of the Zambian government are divided into three, and these are the executive, legislative, and the judiciary[17]. The judiciary is a collective name for all courts in a country. In the Zambian case, the court system is made up of five streams. These are local, magistrate, the high court, the supreme courts and the industrial relations court. The judges who serve in these courts are appointed to these positions by different appointing authorities. In the case of the Supreme Court the judges, they are appointed by the president in consultation with the judicial service commission while the chief justices is appointed by the president and approved by national assembly. The judiciary (the courts and judges), one of the three arms of the government should be involved in the securing of persons in Zambia social, economic, and political justices, liberty of thought, expression, belief, faith, and worship, equality of status and opportunities, the dignity of the individual, and unity, and integrity of the nation[18]. In order for the said rights and freedoms to be fully realized and enjoyed, there is need for an independent and impartial judiciary that should reinforce them. In Zambia, the constitution, judicature administration act, the judicial code of conduct act, judges (condition of services) act, the service commission act, all guarantee the independence of the court[19].
Article 91 (2) of the constitution of Zambia states that judges, members, magistrates, and justices as the case may be of the courts mentioned in clause (1) shall be independent, impartial and subject only to this constitution and the law and shall conduct themselves in accordance with the code of conduct promulgated by parliament[20]. Clause (3) of the same articles further contends that the judicature shall be autonomous which should be administered in accordance with the judicature administration act (Cap 24 of the laws of Zambia)[21]. The judicial (code of conduct) act No 13 of 1999 section 3 on the other side requires every judicial officer to uphold the integrity, independence and impartiality of the judicature in accordance with the constitution, this act or any other law[22]
No discussion about the judiciary can be complete without reference to its independence from politicians and executive since the judiciary is there to offer independent arbiter check on the fulfillment promises by the government. It appears that in Zambia there is adequate provisions in the constitution as well as in other acts of parliament which should ensure the independence of the judiciary and an efficient court system manned by contented judges, magistrates, justices, and judicial staff[23].
Out of the five streams of the Zambian judicial system, it is the high court that hears and determines cases of alleged violation of human rights. Article 28 of the constitution for example empowers the High court to hear and determine applications from persons alleging violations of their rights ensured in part iii of the constitution of Zambia5. The high court can in respect make such writs and gives such directions, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of Article 11-26 of the Bill of Rights. Though the constitutions and other acts of parliament provides for an independent and impartial judiciary, the reality of the operations of the judiciary in Zambia reveals a high incidences of attempts to influence the decisions or actions taken or to be taken on cases of alleged violation of rights particularly on cases involving the government or the politicians. The case studies provided below demonstrates the extent to which such attempts have been made to try and influence judicial proceedings as well as judgement. The cases used for illustrations are the 1999 university bill v presidential asset, Roy Clerk v Attorney General, the presidential directive to the office of the DPP to arrest and prosecute Vitalis Mooya, Moomba MP, Directive from Minister of Works and Supply to the Police to arrest Mr Sata (PF-leader) for theft of government vehicle
The clerk of the national assembly, Mwelwa Chibesakunda on 9th November 1999, wrote to the chief justices Mathews Ngulube advising him to hear as quickly as possible the case in which the state had appealed against a high court order which stayed further proceedings on the 1999 university bill pending presidential asset. Among the point raised by the clerk in his advisory letter were that the appeal was utmost urgency and that the case be heard and determined before the prorogation parliament session expected around 3rd December. He further stated that the president had indicated willingness to assent to the bill save he was advised not to do so before the matter is determined by the supreme court[24]. The case of Roy Clarke V Attorney General High Court of Zambia No. 2004/HP003. In this case Roy-clerk wrote a satirical article entitled ‘mfuwe’ which appeared in the Post Newspaper on 1st January 2004. The minister of Home Affairs took the view that the article was offensive and that the applicant had acted in a manner inimical to Zambia. Acting under section 26(2) of the immigration and deportation act, he issued a warrant ordering the deportation of the applicant from Zambia to the UK within 24 hours[25]. The action taken by the minister is contrary to article 18 section (1), (2)(a), (b), (c), and 20(1) of the constitution of Zambia, article 7 section (1)(a), (b), (c), and (d) of the African charter on Human and Peoples’ rights, and article 13 of the international Covenant on Civil and Political right, both treaties to which Zambia is a state party[26].
In 2002 the president Mwanawasa instructed the Director of public to prosecute (DPP) certain people. The DPP announced that it would institute an investigation and culprits would be arrested and prosecuted[27]. The other case is were President Mwanawasa instructed the police to arrest and charge Moomba (Monze) member of parliament Vitalis Mooya for alarming the nation by announcing that three women died of hunger from his constituency from hunger[28]. The interference of the president in the operations of DPP is contrarily to the provisions of article 56(7) of the constitution of Zambia which states that the DPP shall not be subject to direction or control of any person or authority[29]. This is to ensure that the DPP is left free to make professional judgements depending on the merits of the case. The recent case of former ZANACO director Samuel Musonda who was convicted to two years imprisonment with hard labour after being found of guilt of abuse of office at the time he served as director of ZANACO. He applied for bail through his lawyer Mumba Kapumpa. A day before the court could make a decision on the case the state private prosecutor Mutembo Nchito objected to the application stating that Musonda did not advance any exceptional circumstance to warrant him bail. Nchito equally informed the court that he had received specific instructions to object to the bail application on the basis that if Musonda was admitted to bail, he may interfere with the witnesses in the cases which are on-going[30]. Judge Banda disagreed with the state argument citing among other reasons failure by the state to provide evidence and that Musonda had before been granted bail and he never interfered with the witnesses. Judge Banda granted Musonda K40, 000,000 bail[31].
In Aprial 2001 the Minister of works and supply directed the police to arrest and prosecute Sata, leader of Patrontic Front (PF) leader over the alleged stolen government vehicle- a non bailable offense. Sata was dully arrested and prosecuted for car theft. This is contrary to article 18 (2)(a) of the constitution of Zambia, and article 7(1)(b) of the African Charter on the Human and Peoples’ right[32]. The magistrate acquitted him citing lack of credible evidence to support the charge as evidence reviewed that the car in question had already been surrendered back to the government[33] . Cases of corruption among judges are other areas of concern.
In 2002 for example the judiciary experienced a major upheaval when the chief justices Mathews Ngulube was forced to resign after revelation that he had since 1997 been receiving payment amounting to US dollars 168,000 from former president Chiluba through the ZAMTROP intelligence account. The payment spanning for a period of three years were made to the chief justices, his wife and children contrary to the judicial code of conduct act. Section 15 of the judicial code of conduct stipulates that a judicial officer or member’s family residing in the judicial officers’ household shall not accept a gift, bequest, favour or loan from any person for purposes of bribe, corrupt practices so as to influence the officer in execution of the officers[34].
The Protection and promotion of Human rights by the judiciary in Zambia
The fundamental rights and freedoms of the individuals as enshrined in the bill of rights are better protected and enforced in a society where the judicially is free from any form of interference or pressure and the courts themselves are independent , impartial, and competent[35]. Sakala argues that an entrenched bill of rights in any constitutional framework is useless, unless the rights and freedoms therein entrenched can be judiciary implemented and protected[36]. The review of some human rights case abuses that have been decided in the Zambian courts so far shows mixed results of both fair and unfair judgements. The actual judgement passed on the various cases of alleged human rights abuses demonstrates the independence of the judiciary[37]. In the case of Roy Clarke v. Attorney-General, Vitalis Mooya (MP), Samuel Musonda, and Patriotic Front leader, Michael Sata, the judiciary or the office of the DPP acted independently and impartially by deciding cases on their own merits. The Roy Clark case for example, the court made the following findings facts. The deportation order against the applicant was a result of satirical article published in The Post newspaper of 01-01-04. Nothing was done to Mr Mmembe, editor-in-Chief and publisher of The Post. Satirical articles have appeared in Zambia newspapers for decades and even the applicant has written several of such articles. The article in question was an overstretched satire, irritating and offending. However, the decision to deport the applicant was reversed though there was the involvement of the legislative. The same happened with the case of Sata where Minister of Work and supply was involved, the court found Mr Sata without a case. In the case of Mooya, the DPP dropped his case after the public outcry. In the case of Samuel Musonda though the state private prosecutors’ objected to it to his application for bail pending an appeal, the court granted him bail[38].
However, the involvement of Mr Chibesa kunda over the 1999, University Bill pending Presidential asset, compelled the Supreme court to quickly have a hearing. During this hearing, the court reversed the decision of the High Court and denied the applicant judicial review[39]. This is contrary to article 18 (1) of the constitution of Zambia and article 14(1) of the ICCPR. This is the reason why Afronet argues that the Judiciary, is jittery when asked to challenge the state. Most the judges see their work as a risky and burdensome one, because it usually demands the summoning of special courage by the judges who is deciding a matter where the citizen is challenging the authority of the state[40]. The practices of the government in interfering with the operation of the Judiciary to secure condemnation or acquittals is contrary to the article 91(2) and (3) of the constitution of Zambia, for verdict must be given in accordance with facts and with the laws governing the case, and not to suit the desires of the politicians or other influential persons. The area where this behaviour has been well exhibited is in cases of political nature. That why Dr Chongwe commenting of the decision by the opposition party leaders’ stance that they will not petition the election results argues that the decision is a sign that the people of Zambia are gradually and increase losing confidence in the judicial system[41].
The practice of receiving bribes or corruptions undermines judicial independence and makes the rule of law illusory[42]. This also defeats the principle of rule of law. Indeed Kapur (2001) argues that howsoever, just and sound the laws be, unless they are applied by an upright, honest, and impartial authority, citizens can not secure, justice. It equally defeats the high purposes for which the Judiciary is established for.
Conclusion
Though article 91(2) and the judicature administration act guarantees for an independent and impartial judiciary, evident available so far reviews that there is tendency by the legislature and executive to interfere with the operations of the judiciary. Sakala describes the Zambia Judiciary to be facing many legal and practical dilemmas in its task to interprete, implement and protect the rights and freedoms on individuals under its jurisdiction[43]. The sources of this dilemma are diverse, among them omnipotence presence of the executive of the government, the acceptance of bribes among some judges[44], limitation of the bill of rights, and non-localization of the ratified human rights instruments into the domestic legislation[45]
5 Permanent Human Rights Commission 1999
[1] Asirvathan, Eand K.K Misra, p 431.
[2] Kunda, G, p 29.
[3] Affronet 1999, p 65.
[4] Asirvathan, E and K.K. Misra. 2001, p431.
[5] Ibid , 341.
[6] Ibid, p 342.
[7] Ibid, p 343.
[8] L.H.Summers and Shah. S 1991. Proceedings of the World Bank: Annual Conference on Development Economics, p 280.
[9] Ibid….
[10] Human rights action plan 1999-2009
[11] Kapur 2001
[12] Ibid
[13] Afronet 1999.
[14] Ibid
[15] Oxford Dictionary
[16] Kapur 2001.
[17] Nalwamba C el at 1997
[18] G Kunda
[19] Afronet 2003
[20] Constitution of Zambia
[21] Afront 2002
[22] Ibid 23
[23] G. Kunda
[24] Human rights report 1999
[25] Anyangwe
[26] See the Constitution of Zambia, The African Charter on Human and Peoples’ Rights, The international Covenant on Civil and Political Rights
[27] Afronet 2002
[28] Ibid..
[29] See the constitution of Zambia
[30] The Post, Tuesday October 17, 2006.
[31] ZNBC 19:00 news on 17.10.06
[32] See the constitution of Zambia, p 25 and the African Charter on Human and Peoples’ rights.
[33] Afronet 2002
[34] Afronet 2002, p 27
[35] J.B, Sakal a 2000
[36] J,B Sakala, 209.
[37] Ibid, p 211.
[38] Times of Zambia, Wendsday 18-10-06
[39] Afronet 1999, p 68.
[40] Ibid, p 69.
[41] The Post, Tuesday October 19-2006.
[42] Affront 2002,
[43] J.B. Sakala 2000, p 270.
[44] Case of judge Mathews Ngulube cited above.
[45] J.B.Sakala, p 270.
Bibiolography
Affronet 1999, The Human Rights Report 1999. The inter-Africa network for human rights and development , Lusaka, Zambia.Affronet. 2002. Zambian Human rights report. Lusaka, Zambia.
Anyangwe, C. 2004. Deportation-Human Rights-Freedom of Expression- Satire in Newspaper. Zambia law Journal, Vol 36.
Asirvatham, E and K.K, Misra. 2001. Political Theory. S.Chand and Company LTD, New Delhi.
Chad, A and Kapur. 2001. Principles of political science. S.Chand & Company LTD, New Delhi.
Permanent Human Rights Commission, 1999.National Plan of Action for human rights 1999-2009, Lusaka.
Kunda, G. The Zambian Judiciary in the 21st Centuary. Zambia law journal, vol 30. University of Zambia press, Lusaka.
Summers,L.H and Shah. S 1991. Proceedings of the World Bank: Annual Conference on Development Economics. Supplement of the World Bank Economic Review and World Bank Research Observer, The World Bank.
Sakala, J.B, 2000. The role of the judiciary in the enforcement of the Human Rights in Zambia: A thesis submitted to the school of law for the degree of Doctor of Philosophy (PHD) of the University of Zambia.
UNDP, 2006, Governmence, for the future: Democrancy and Development in the least Developed Countries. Bureau for developing policy, NewYork.
Zambia have accepted norms for the protection and implementation of human rights and this is constitutionary provides for in section iii of its constitution called the bill of rights. In order, for the people of Zambia and other person residing in Zambia to fully realize and enjoy the said rights, various legal scholars, political scientists, international organization and human rights activities all have positioned the potentially important role an independent judiciary can play in securing constitutionally promised human rights. Indeed some asserts that it is the indispensable link machinery for securing individual protection against human rights abuses. It has been argued for long that as a necessary check on the potential excesses of both the executive and legislative branches, only an independent and impartial judiciary may effectively guarantee the protection of human rights[1] This paper therefore, discusses the above statement, in light of the judicial independence and human right protection in Zambia. The ordinary meaning of the word judiciary is simply ‘the judges of the country collectively[2]. It also refers to a collective name for all the courts in a country[3]. The term judiciary is used to mean the courts, the judges and all the judgements made on the alleged violation of human rights.
Structure of the paper
This paper in organized as follows. The second section following the introduction provides the theoretical framework on the judiciary. Section three provides the division of power in the Zambian context. The judicial independence and human protection in Zambia is discussed in section four while section five provides the discussion on the promontion and protection of human rights while section six provides the conclusion.
Theory of the separation of powers
Bodin one of the earliest thinkers of the modern period saw the importance of separating executive and judicial powers[4]. He further insisted that the prince should not administer justice himself, but should delegate his powers to an independent tribunal[5]. The rationale behind this, is based on the belief that the lack of separation of the two powers would mean indiscriminate mixture of justice and mercy, of strict adherence to law and arbitrary departure from it. It is expedient that the legislative and executive must needs be separated and certainly it is un wise to invest the makers of the law with the duty of enforcing them for either they may exempt themselves from operations of such laws or may suit the laws to serve their own ends[6]. This would also creates room for arbitrary rules unless clear limitations are laid down. Protection against arbitrary rules is a condition which every citizen expects government to provide for them[7]. The separation of the powers of the government is inevitable in this case so that different powers are exercises by different organs of the government to provide a system of checks and balances so that non of the organs becomes over powerful. The World Bank (1991) further contends that the legal orders established on this foundation serves to regulate relations between individuals and groups within society as well as between citizens and the state[8]. A properly constituted judiciary is one of the best means by which this condition can be secured because of the duties bestowed upon it. Among the various function performed by the judiciary is the protection of individuals against encroachment of the state on their liberties[9]. The functioning and independent judiciary is very vital[10]. An independent judiciary is a judicial system where judges exercise unfettered discretion in the interpretation of the laws and administration of justices and they should remain uninfluenced in the discharge of duties[11]. Another important dimension of the an independent judiciary is that the courts must be separate, independent agencies bound by their own rules of procedures and determining cases according to publicly known laws and not as an instrument of the regime in carrying out its political and general purposes[12]. Some attributes of the independent judiciary are that the judges of the country should be free from restrictions, influences, inducements, pressures or threats, direct, or indirect from the executive, the legislature or any other quarter, when they hear cases. Such condition would enable them to consider matters with complete impartiality and freedom based of the law and the facts presented before them. The second attribute is that the judges should enjoy security of tenure, that is to say, no judge should be removed from his/her office hounded on the ground that he or she made a decision that did not please the executive. But that the judge should be removed from the office for inability to discharge the functions of his/her office due to infirmity of body or mind and in accordance to the procedure provided for in the constitution. Thirdly, that the renumeration of the judges should not be subject to annual approval by parliament, but should be paid direct from the country’s consolidated funds of the treasury[13]. Independent judiciary goes together with impartiality[14]. Impartiality refers to not supporting one person or group more than the other[15]. The deciding of cases fairly and impartially establishes public confidence in the court system and judge UNDP (2006). The maintenance of the independent and impartial judicial both in letter and in spirit is the basic condition of the rule of law and as such that of liberty of the people and human progress[16].
Judicial independence in Zambia
The powers of the Zambian government are divided into three, and these are the executive, legislative, and the judiciary[17]. The judiciary is a collective name for all courts in a country. In the Zambian case, the court system is made up of five streams. These are local, magistrate, the high court, the supreme courts and the industrial relations court. The judges who serve in these courts are appointed to these positions by different appointing authorities. In the case of the Supreme Court the judges, they are appointed by the president in consultation with the judicial service commission while the chief justices is appointed by the president and approved by national assembly. The judiciary (the courts and judges), one of the three arms of the government should be involved in the securing of persons in Zambia social, economic, and political justices, liberty of thought, expression, belief, faith, and worship, equality of status and opportunities, the dignity of the individual, and unity, and integrity of the nation[18]. In order for the said rights and freedoms to be fully realized and enjoyed, there is need for an independent and impartial judiciary that should reinforce them. In Zambia, the constitution, judicature administration act, the judicial code of conduct act, judges (condition of services) act, the service commission act, all guarantee the independence of the court[19].
Article 91 (2) of the constitution of Zambia states that judges, members, magistrates, and justices as the case may be of the courts mentioned in clause (1) shall be independent, impartial and subject only to this constitution and the law and shall conduct themselves in accordance with the code of conduct promulgated by parliament[20]. Clause (3) of the same articles further contends that the judicature shall be autonomous which should be administered in accordance with the judicature administration act (Cap 24 of the laws of Zambia)[21]. The judicial (code of conduct) act No 13 of 1999 section 3 on the other side requires every judicial officer to uphold the integrity, independence and impartiality of the judicature in accordance with the constitution, this act or any other law[22]
No discussion about the judiciary can be complete without reference to its independence from politicians and executive since the judiciary is there to offer independent arbiter check on the fulfillment promises by the government. It appears that in Zambia there is adequate provisions in the constitution as well as in other acts of parliament which should ensure the independence of the judiciary and an efficient court system manned by contented judges, magistrates, justices, and judicial staff[23].
Out of the five streams of the Zambian judicial system, it is the high court that hears and determines cases of alleged violation of human rights. Article 28 of the constitution for example empowers the High court to hear and determine applications from persons alleging violations of their rights ensured in part iii of the constitution of Zambia5. The high court can in respect make such writs and gives such directions, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of Article 11-26 of the Bill of Rights. Though the constitutions and other acts of parliament provides for an independent and impartial judiciary, the reality of the operations of the judiciary in Zambia reveals a high incidences of attempts to influence the decisions or actions taken or to be taken on cases of alleged violation of rights particularly on cases involving the government or the politicians. The case studies provided below demonstrates the extent to which such attempts have been made to try and influence judicial proceedings as well as judgement. The cases used for illustrations are the 1999 university bill v presidential asset, Roy Clerk v Attorney General, the presidential directive to the office of the DPP to arrest and prosecute Vitalis Mooya, Moomba MP, Directive from Minister of Works and Supply to the Police to arrest Mr Sata (PF-leader) for theft of government vehicle
The clerk of the national assembly, Mwelwa Chibesakunda on 9th November 1999, wrote to the chief justices Mathews Ngulube advising him to hear as quickly as possible the case in which the state had appealed against a high court order which stayed further proceedings on the 1999 university bill pending presidential asset. Among the point raised by the clerk in his advisory letter were that the appeal was utmost urgency and that the case be heard and determined before the prorogation parliament session expected around 3rd December. He further stated that the president had indicated willingness to assent to the bill save he was advised not to do so before the matter is determined by the supreme court[24]. The case of Roy Clarke V Attorney General High Court of Zambia No. 2004/HP003. In this case Roy-clerk wrote a satirical article entitled ‘mfuwe’ which appeared in the Post Newspaper on 1st January 2004. The minister of Home Affairs took the view that the article was offensive and that the applicant had acted in a manner inimical to Zambia. Acting under section 26(2) of the immigration and deportation act, he issued a warrant ordering the deportation of the applicant from Zambia to the UK within 24 hours[25]. The action taken by the minister is contrary to article 18 section (1), (2)(a), (b), (c), and 20(1) of the constitution of Zambia, article 7 section (1)(a), (b), (c), and (d) of the African charter on Human and Peoples’ rights, and article 13 of the international Covenant on Civil and Political right, both treaties to which Zambia is a state party[26].
In 2002 the president Mwanawasa instructed the Director of public to prosecute (DPP) certain people. The DPP announced that it would institute an investigation and culprits would be arrested and prosecuted[27]. The other case is were President Mwanawasa instructed the police to arrest and charge Moomba (Monze) member of parliament Vitalis Mooya for alarming the nation by announcing that three women died of hunger from his constituency from hunger[28]. The interference of the president in the operations of DPP is contrarily to the provisions of article 56(7) of the constitution of Zambia which states that the DPP shall not be subject to direction or control of any person or authority[29]. This is to ensure that the DPP is left free to make professional judgements depending on the merits of the case. The recent case of former ZANACO director Samuel Musonda who was convicted to two years imprisonment with hard labour after being found of guilt of abuse of office at the time he served as director of ZANACO. He applied for bail through his lawyer Mumba Kapumpa. A day before the court could make a decision on the case the state private prosecutor Mutembo Nchito objected to the application stating that Musonda did not advance any exceptional circumstance to warrant him bail. Nchito equally informed the court that he had received specific instructions to object to the bail application on the basis that if Musonda was admitted to bail, he may interfere with the witnesses in the cases which are on-going[30]. Judge Banda disagreed with the state argument citing among other reasons failure by the state to provide evidence and that Musonda had before been granted bail and he never interfered with the witnesses. Judge Banda granted Musonda K40, 000,000 bail[31].
In Aprial 2001 the Minister of works and supply directed the police to arrest and prosecute Sata, leader of Patrontic Front (PF) leader over the alleged stolen government vehicle- a non bailable offense. Sata was dully arrested and prosecuted for car theft. This is contrary to article 18 (2)(a) of the constitution of Zambia, and article 7(1)(b) of the African Charter on the Human and Peoples’ right[32]. The magistrate acquitted him citing lack of credible evidence to support the charge as evidence reviewed that the car in question had already been surrendered back to the government[33] . Cases of corruption among judges are other areas of concern.
In 2002 for example the judiciary experienced a major upheaval when the chief justices Mathews Ngulube was forced to resign after revelation that he had since 1997 been receiving payment amounting to US dollars 168,000 from former president Chiluba through the ZAMTROP intelligence account. The payment spanning for a period of three years were made to the chief justices, his wife and children contrary to the judicial code of conduct act. Section 15 of the judicial code of conduct stipulates that a judicial officer or member’s family residing in the judicial officers’ household shall not accept a gift, bequest, favour or loan from any person for purposes of bribe, corrupt practices so as to influence the officer in execution of the officers[34].
The Protection and promotion of Human rights by the judiciary in Zambia
The fundamental rights and freedoms of the individuals as enshrined in the bill of rights are better protected and enforced in a society where the judicially is free from any form of interference or pressure and the courts themselves are independent , impartial, and competent[35]. Sakala argues that an entrenched bill of rights in any constitutional framework is useless, unless the rights and freedoms therein entrenched can be judiciary implemented and protected[36]. The review of some human rights case abuses that have been decided in the Zambian courts so far shows mixed results of both fair and unfair judgements. The actual judgement passed on the various cases of alleged human rights abuses demonstrates the independence of the judiciary[37]. In the case of Roy Clarke v. Attorney-General, Vitalis Mooya (MP), Samuel Musonda, and Patriotic Front leader, Michael Sata, the judiciary or the office of the DPP acted independently and impartially by deciding cases on their own merits. The Roy Clark case for example, the court made the following findings facts. The deportation order against the applicant was a result of satirical article published in The Post newspaper of 01-01-04. Nothing was done to Mr Mmembe, editor-in-Chief and publisher of The Post. Satirical articles have appeared in Zambia newspapers for decades and even the applicant has written several of such articles. The article in question was an overstretched satire, irritating and offending. However, the decision to deport the applicant was reversed though there was the involvement of the legislative. The same happened with the case of Sata where Minister of Work and supply was involved, the court found Mr Sata without a case. In the case of Mooya, the DPP dropped his case after the public outcry. In the case of Samuel Musonda though the state private prosecutors’ objected to it to his application for bail pending an appeal, the court granted him bail[38].
However, the involvement of Mr Chibesa kunda over the 1999, University Bill pending Presidential asset, compelled the Supreme court to quickly have a hearing. During this hearing, the court reversed the decision of the High Court and denied the applicant judicial review[39]. This is contrary to article 18 (1) of the constitution of Zambia and article 14(1) of the ICCPR. This is the reason why Afronet argues that the Judiciary, is jittery when asked to challenge the state. Most the judges see their work as a risky and burdensome one, because it usually demands the summoning of special courage by the judges who is deciding a matter where the citizen is challenging the authority of the state[40]. The practices of the government in interfering with the operation of the Judiciary to secure condemnation or acquittals is contrary to the article 91(2) and (3) of the constitution of Zambia, for verdict must be given in accordance with facts and with the laws governing the case, and not to suit the desires of the politicians or other influential persons. The area where this behaviour has been well exhibited is in cases of political nature. That why Dr Chongwe commenting of the decision by the opposition party leaders’ stance that they will not petition the election results argues that the decision is a sign that the people of Zambia are gradually and increase losing confidence in the judicial system[41].
The practice of receiving bribes or corruptions undermines judicial independence and makes the rule of law illusory[42]. This also defeats the principle of rule of law. Indeed Kapur (2001) argues that howsoever, just and sound the laws be, unless they are applied by an upright, honest, and impartial authority, citizens can not secure, justice. It equally defeats the high purposes for which the Judiciary is established for.
Conclusion
Though article 91(2) and the judicature administration act guarantees for an independent and impartial judiciary, evident available so far reviews that there is tendency by the legislature and executive to interfere with the operations of the judiciary. Sakala describes the Zambia Judiciary to be facing many legal and practical dilemmas in its task to interprete, implement and protect the rights and freedoms on individuals under its jurisdiction[43]. The sources of this dilemma are diverse, among them omnipotence presence of the executive of the government, the acceptance of bribes among some judges[44], limitation of the bill of rights, and non-localization of the ratified human rights instruments into the domestic legislation[45]
5 Permanent Human Rights Commission 1999
[1] Asirvathan, Eand K.K Misra, p 431.
[2] Kunda, G, p 29.
[3] Affronet 1999, p 65.
[4] Asirvathan, E and K.K. Misra. 2001, p431.
[5] Ibid , 341.
[6] Ibid, p 342.
[7] Ibid, p 343.
[8] L.H.Summers and Shah. S 1991. Proceedings of the World Bank: Annual Conference on Development Economics, p 280.
[9] Ibid….
[10] Human rights action plan 1999-2009
[11] Kapur 2001
[12] Ibid
[13] Afronet 1999.
[14] Ibid
[15] Oxford Dictionary
[16] Kapur 2001.
[17] Nalwamba C el at 1997
[18] G Kunda
[19] Afronet 2003
[20] Constitution of Zambia
[21] Afront 2002
[22] Ibid 23
[23] G. Kunda
[24] Human rights report 1999
[25] Anyangwe
[26] See the Constitution of Zambia, The African Charter on Human and Peoples’ Rights, The international Covenant on Civil and Political Rights
[27] Afronet 2002
[28] Ibid..
[29] See the constitution of Zambia
[30] The Post, Tuesday October 17, 2006.
[31] ZNBC 19:00 news on 17.10.06
[32] See the constitution of Zambia, p 25 and the African Charter on Human and Peoples’ rights.
[33] Afronet 2002
[34] Afronet 2002, p 27
[35] J.B, Sakal a 2000
[36] J,B Sakala, 209.
[37] Ibid, p 211.
[38] Times of Zambia, Wendsday 18-10-06
[39] Afronet 1999, p 68.
[40] Ibid, p 69.
[41] The Post, Tuesday October 19-2006.
[42] Affront 2002,
[43] J.B. Sakala 2000, p 270.
[44] Case of judge Mathews Ngulube cited above.
[45] J.B.Sakala, p 270.
Bibiolography
Affronet 1999, The Human Rights Report 1999. The inter-Africa network for human rights and development , Lusaka, Zambia.Affronet. 2002. Zambian Human rights report. Lusaka, Zambia.
Anyangwe, C. 2004. Deportation-Human Rights-Freedom of Expression- Satire in Newspaper. Zambia law Journal, Vol 36.
Asirvatham, E and K.K, Misra. 2001. Political Theory. S.Chand and Company LTD, New Delhi.
Chad, A and Kapur. 2001. Principles of political science. S.Chand & Company LTD, New Delhi.
Permanent Human Rights Commission, 1999.National Plan of Action for human rights 1999-2009, Lusaka.
Kunda, G. The Zambian Judiciary in the 21st Centuary. Zambia law journal, vol 30. University of Zambia press, Lusaka.
Summers,L.H and Shah. S 1991. Proceedings of the World Bank: Annual Conference on Development Economics. Supplement of the World Bank Economic Review and World Bank Research Observer, The World Bank.
Sakala, J.B, 2000. The role of the judiciary in the enforcement of the Human Rights in Zambia: A thesis submitted to the school of law for the degree of Doctor of Philosophy (PHD) of the University of Zambia.
UNDP, 2006, Governmence, for the future: Democrancy and Development in the least Developed Countries. Bureau for developing policy, NewYork.
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