Lusaka High Court judge Mwila Chitabo says there is a worrying trend in the Judiciary where lawyers are trying judges using the Judicial Complaints Commission (JCC) when court judgements don’t favour them.
And Chitabo, who is also session judge, demanded that the Chief Justice joins and heads the JCC.
Meanwhile, Chief Justice Irene Mambilima says the Judiciary is struggling to cope with a huge backlog of cases.
The duo were speaking at the 2018 ceremonial opening of the criminal sessions of the Lusaka High Court under the theme “To provide speedy and timely adjudication without undue delay”.
Recently, the JCC demanded the suspension of High Court judge Sunday Nkonde so that he could face charges of professional misconduct in the manner he handled the liquidation of The Post. In a different matter before that, the JCC ruled that the Constitutional Court judges failed to interpret the 14 days provision in the presidential election petition case.
But judge Chitabo yesterday said lawyers who constituted the Judicial Complaints Commission were junior to judges.
“Zambia as a nation prides itself in the independence of the judiciary, among others. Article 122 (1) provides and I quote ‘in the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority’. The recent past has brought to light a situation where disgruntled litigants are fast developing a trend of dragging judges to the Judicial Complaints Commission for judgements that they feel should have gone a certain way,” judge Chitabo said.
“This, my lady is a direct interference on the independence of the judiciary which clearly provides for an appellate system in the event that one is not satisfied by a judgement delivered. In the same vein, it is a matter of concern that the office of Chief Justice, which is the head of the Judiciary, does not sit on the Judicial Complaints Commission. It is my proposal my lady that we revert to the previous system that provided for the chief justice as the head of the Judicial Complaints Commission and also the Judicial Service Commission.”
Judge Chitabo said it was wrong for judges or other members who hold senior offices of the judiciary to be subjected to a body of lawyers for trial.
“A startling phenomenon in the composition of the Judicial Complaints Commission is that the disciplinary proceedings of alleged misconduct against Judges. Put simply the lawyers are trying Judges. I hold a very strong view that Judges should only be tried by their peers or superiors- brothers and sisters in service or who have held the high judicial office of a Judge. It is a serious mischief that members of the Bar which is lower to the Bench should be the prosecutors and triers of Honourable members of the Bench,” said judge Chitabo.
He asked Attorney General Likando Kalaluka to initiate a legislative intervention in order to rectify what he described as “a gross constitutional anomaly”
“There is a generally held view that courts are responsible for delayed conclusion of cases. This is our simplification of the facts at hand. A substantial percentage of adjournments can be traced right at the footsteps of the litigants and their Advocates. It is not unusual for the parties to file notices to adjourn on the eve or on the very return date of the hearing. All types of conceivable excuses are advanced to secure adjournment,” said judge Chitabo.
“Admittedly, some are legitimate, while others are delinquent. In the year 2018 and beyond, the courts discretion to grant adjournments will sparingly be exercised and upon judicious cause.”
And Justice Mambilima said the judiciary was faced with numerous challenges, among them, shortage of infrastructure.
“The biggest challenge facing the Judiciary currently is the backlog of cases and delays in the disposal of cases and the delivery of judgments. This is attributable to numerous factors but the foremost contributing factor has been inadequate court infrastructure at all levels of our Court structure. The Supreme Court and the Constitutional Court currently share chambers and courtrooms. Some Constitutional Court Judges are housed in the Commercial Court Building,” Justice Mambilima said.
“I must point out that the Supreme Court Building was built for only five Judges and has only five Chambers and two Courtrooms and yet there are 13 Judges of the Supreme Court. The Lusaka High Court also is sharing Chambers and Court Rooms with the nine Judges of the Court of Appeal. The Lusaka High Court was meant for only eight Judges. At present it is accommodating the nine Judges of the Court of Appeal and over 20 Judges of the High Court based at Lusaka.”
She said the situation was the same with subordinate courts around the country and even worse at the local courts.
Justice Mambilima then highlighted some achievements scored in the judiciary.
“I am glad to inform you that since 2016, 12 High Court Judges have been appointed bringing the total number of High Court Judges country-wide to 43. I firmly believe that judicial training is vital to the efficient administration of justice. The Judiciary has established a Judicial School of Excellency which we are, nevertheless, yet to operationalise when funds permit,” said Justice Mambilima.
“In addition to the above, we have implemented automation of the court systems in Lusaka and Copperbelt Provinces. Further, we now maintain electronic copies of court files and court documents which are scanned and stored electronically as soon as they are filed. These technological advancements have helped us to minimise delays associated with lost case files or court documents.”