Ruling elite should stop interfering with judicial independence

By Given Mutinta 

The revelation made by the Zambian Watchdog on April 26 and 27, 2012 that the Solicitor-General Musa Mwenye and the Attorney General Mumba Malila, respectively, are pushing the Development Bank of Zambia (DBZ) to write off the K14 billion which the Director of Public Prosecution (DPP) Mutembo Nchito and Editor-in-chief of The Post newspaper Fred M’membe owe the public bank is an assault on the independence of our judiciary and democracy.

Mwenye and Malila’s actions do not come as a surprise. M’membe schemed and machinated their appointments. It was a conspiracy to allow his consociates to take up key positions in the judicial system so as to create a syndicate that would surreptitiously creep around the judiciary and government systems and feloniously rub off the huge loan they owe DBZ.

If we do not rise and protect the judiciary, its autonomy will be defiled. We need to fight fearlessly and steadfastly against political pressure to surrender the independence of the judiciary to the selfish ruling elite. The political pressure being stirred up by Mwenye, Malila, and M’membe against the judiciary is an unacceptable situation that is worth fighting with unyielding vigilance.

Their disregard for the ruling passed by Lusaka High Court judge Nigel Mutuna against JCN Holdings, Post Newspapers Limited and Mutembo Nchito and an edict that they pay back the K14 billion they owe DBZ is an attack on the rule of law. Their intention is intrinsically evil. It will poison our constitution and corrupt our democracy.

His Excellency President Michael Sata should not keep mum when the independence of the judiciary is being ambushed unless he is part of the sneaky consortium that is resolute to ensure that M’membe and Mutembo’s loan is terminated. Could it be true that they were promised full remission of their loans if they campaigned for Sata, and it is now payback time?

Zambia is a signatory to the 1985 basic principles on the independence of the judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Thus, the independence of the judiciary guaranteed by the State and enshrined in our Constitution must be respected and observed by all.

Mwenye and Malila should let the judiciary deal with the M’membe and Mutembo saga impartially, on the basis of facts and in accordance with the law of the land. They should not put any improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any section or for any reason.

Why should a lending institution write off a debt without taking measures to recover the loan? It seems it is in order for M’membe and Mutembo to embezzle public funds when the former is everyday screaming at other people as thieves. While the latter is eventfully prosecuting Austin Liato in the courts of law over K2 billion compared to K14 billion they pocketed. This last level of hypocrisy is shameful and unacceptable!

Will all people who owe financial institutions have their debts cancelled straightway? What is sauce for the goose is sauce for the gander. Mwenye and Malila should be stopped from pressganging DBZ to drop the case against their acquaintances after the judge found them wanting. This is a broad daylight criminal operation. It is not money for M’membe or Mutembo’s mother but public funds they pocketed. Why should public funds be used to grease their luxurious lives when our brothers and sisters are every day sinking deep in the pits of poverty?

Mwenye and Malila should know better that judges have the ultimate responsibility for decisions regarding freedoms, rights, and duties of natural and legal persons within their jurisdiction. The independence of each individual judge safeguards every person’s right to have their case decided solely on the basis of the law, the evidence, and facts, without any improper influence.

Let us not allow the greedy ruling elite to assail the judiciary. A well-functioning, efficient, and independent judiciary is an indispensible requirement for a just, consistent, and impartial administration of justice. Thus, judicial independence is an imperative element of the right to due process, the rule of law and democracy.

The separation of powers is an essential surety of the independence of the judiciary. In the decision-making process, let judges have freedom to decide cases impartially, in accordance with their understanding of the law and the facts. They should be able to act without any improper influence from the Solicitor-General or the Attorney General or the Director of Public Prosecution. Pressure, threats, or interferences from any quarter or for any reason should be countered with legal penalties.

Sata’s government should promote the right to an independent and impartial tribunal guaranteed by our constitution. What will Sata write home about if government is not able to reinforce the rule of law? Those found wanting by the courts of law regardless of their status; poor or rich, powerful or powerless the law must visit them. Judges should be subject only to the law, and their decisions should not be revised outside the appeals procedure by the Solicitor-General or the Attorney General or anybody else.

M’membe and Mutembo’s case is an eye-opener to us all that the independence of the judiciary can be easily assaulted if decisions regarding the appointment and the professional career of the DPP, the Solicitor-General, and the Attorney General are ‘politically engineered’ and there is no application of objective criteria.

Mwenye and Malila should be reminded that they can threaten judges, or DBZ to drop M’membe and Mutembo’s case, but they cannot destroy the transgression. In Tonga we have a saying that says, ‘mulandu tauligwi cucu’ – ‘a crime can never be eaten by a rat’. It means that even if you commit a crime now, in 50 years that case can still be revisited. The trouble Mwenye and Malila will face out of pressurizing DBZ and intimidating judges will make them live to regret their conducts. You cannot fool all of the people all the time. Life is like a chariot wheel; today you are at the top, tomorrow you will be at the bottom. Tongas say, ‘mazuba ngunamasandu’ – life turns!

As long as we have a judicial system that works on the issue of appointment and term of office we will always have hierarchical and political influence on judicial independence. Maybe we need to consider the issue of irremovability of judges and involuntary transfers in the judicial system. This may underpin the autonomy of the judiciary. We also need an appointment system able to shield the judiciary from the influence of the appointing authority and ruling elite.

Let us protect the norm where judges deciding a case should not act on any order of any third party, inside or outside the judiciary. We should revisit the hierarchical position of the DPP, Attorney General, and Solicitor-General so that they do not amount to subordination of the judges in their judicial decision-making activities.

In order for freedom from external influence to be ensured, the law should provide sanctions against outside actors seeking to influence judges in any manner.

Mwenye, M’membe, and Malila’s intimidation of judges definitely will impact not only on the independence of the judiciary but also independent practice of the legal profession.

At the rate we are sinking into political hooliganism and thuggerism the protection of judges, and even their families is an important component of any action to promote judicial independence.

If politicians like Hakainde Hichilema (HH) and Nevers Mumba were attacked for holding different views from those of government what will stop these same hooligans and thugs from attacking judges and their families for ruling against the ruling elite? Once judges become the subject of intimidation it will hamper the dispensation of justice and promote impunity.

We cannot afford to have the independence of our judicial system impinged upon and rendered nugatory by the dominant legal system imposed by the ruling elite.

Judges, the likes of Nigel Mutuna and others should never lose sight of the need to ensure that the justice system, not merely the judiciary, is free from the unmerited intervention of those who seek to oppress and exploit people.

The independence of the judiciary is the foundation stone of our democratic society and a safeguard for our freedom and rights under the rule of law.

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