Politicians, journalists, lawyers, economists and policy-makers often use the term “rule of law” to characterize a certain type of legal-political regime. As the pace of globalization has increased in the past two decades, many developing countries have prioritized their policy agendas to promote the rule of law. The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions.
Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power. The rule of law, also called supremacy of law, simply means that the law is above everyone and it applies to everyone. Whether governors or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law
The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote:
‘Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.’
The late President Mwanawasa was a great advocate of the rule of law but its interpretation in the day to day activities of Government left much to be desired as it was selective in its implementation. The current misguided debate on the acquittal of President Chiluba is a classic case of the rule of law gone berserk. We have seen an unprecedented attack on the Judiciary and on a number of constitutional offices and provisions by both lay men and lawyers. It seems in President Chiluba’s case the rule of law must not apply. His case has been a trial by media with one particular paper continuously calling him a thief. This kind of scenario would never be allowed in any democratic country as it would be deemed as a contempt of court and most likely the trial would be technically a mistrial. Recall the O.J. Simpson case in the USA where the man was convicted by public opinion but was acquitted by a Judge against the wishes of the media?
Reporters are not to make irresponsible remarks about the verdict before the final judgment is in. This is an iron-clad rule for any media professional. However, the chiluba case has dealt a savage blow to this rule. When the case had just opened, the mass media, including some lawyers, began to play up the public’s emotions, severely interfering with the judicial process and setting a poor precedent in which a joint decision by the general public took the place of a legal verdict. This included quite unfortunately, the late President and a whole host of supposed legal experts. Now they are all crying foul because Magistrate Jones Chinyama has stood his ground and the DPP as he is empowered by the Constitution of Zambia has declined to appeal. The Zambian Magistrate Court has issued a ruling of not guilty as the competent authority legally mandated to make such a ruling.
We should all welcome this outcome after 8 long years of waiting and if truly aggrieved use proper channels for lodging legal appeals. It is important for the President Rupiah Banda to persist in his objection to the current process that is bringing into disrepute the Zambian legal system. In my opinion, this whole saga is as a result of the law being manipulated by public feeling rather than a reappraisal in the context of the law. This type of ruling is not the real ruling that many were expecting as they had already judged Chiluba guilty when the fundamental rule of law states quite clearly that YOU ARE INNOCENT BEFORE THE LAW UNTIL PROVEN GUILTY. Whatever happened to this rule of law?
Instead, the spirit of the law flinched in the face of the relentless media onslaught that we were subjected to. Such an experience can only serve to provide a precedent for future cases, leading to a further loss of independence in the judicial process and making the law something that can be coerced. I shudder to think what kind of nation we will be building then if we are going to be determining court cases based on the opinions of the media, foreign governments and its columnists.
Under this reasoning, the prosecution lawyer in particular broke a major taboo. He used his leaked stories to continually influence what the public saw and heard, and he spoke in all kinds of media venues frequently. He forgot that as a counselor in the case, what he was able to do, and what he had to do, was to present his argument within the confines of the law. But he provoked the emotions of the media and the public—an objective interference in the administration of justice. To put it more seriously, he is guilty.
Why can’t we have a trial by media? The logic is simple: justice must have absolute independence. Of course, someone might suggest that justice is frequently not independent, so why pick out this instance in particular? Indeed, cases where justice is not independent are not rare, but we cannot just cover over this particular case and continue to interfere with judicial independence. We cannot accept trial by media simply because of the existence of other cases of judicial interference. The press is the fourth estate, true, but the implications of this term mean that media is also an independent voice that cannot be revoked or interfered with.
If we can understand why the media is accorded respect, then we also ought to understand that the judiciary deserves the same respect. Any power that over-expands and is taken to excess will end up influencing and disenfranchising the other powers. The media has its own power to be independent, but that power is necessarily limited, and it cannot become a reason to disenfranchise other powers. We must be clear: even if a trial by media is strongly in the public interest, it is nonetheless fundamentally interference into the independence of justice, no different than interference from other powers.
It is sad, really—there is nothing more we can do, because overturning the case is not within our power. That must be accomplished within judicial proceedings; we on the outside are not qualified to change the law or the judges. We can only place our hope in the independence and impartiality of the judiciary; we must simply look forward to a mature, healthy society under the rule of law. If we are not yet at that point, then we do nothing but wait. If there really has been a miscarriage of justice, that is not a call to rebel against the course of judicial proceedings. Rather, we must wait outside the ground allotted to the judiciary, in the space given to the media and the public, to exercise our rights within the RULE OF LAW. This something you would hope a Professor in law would understand and an Editor with a law degree would definitely understand. Let us not create anarchy where it is not necessary.