We shouldn’t be quick to try and change rules at the Judicial Complaints Commission, but we should be quick to make sure that the process that determines cases against judges is efficient and sends a clear signal about what is tolerated and what is not, says NAREP president Elias Chipimo.
And Chipimo who is an accomplished Lusaka based lawyer says the Chief Justice must not be allowed to head the Judicial Complaints Commission because in future she may also be accused of professional misconduct, and end up being her own judge at the JCC.
On Monday, Lusaka High Court judge Mwila Chitabo said disgruntled lawyers were using the JCC to persecute judges when a court outcome does not favour them. He said it was unacceptable for lawyers, as members of the Bar, to try judges who are superior members of the Bench. Judge Chitabo further petitioned Attorney General Likando Kalaluka to initiate legislative interventions and see to it that the Chief Justice is put in charge of the JCC.
“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. 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. A startling phenomenon in the composition of the Judicial Complaints Commission… 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,” said judge Chitabo.
“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.”
But Chipimo said judges were expected to have nothing to worry about if the JCC remained impartial.
“If the complaints is designed to put pressure on a judge when they have done nothing wrong, then the role of the Judicial Complaints Commission is to simply go through the process anyway and to show whether the judge was right or wrong. As long as the Judicial Services Commission or Judicial Complaints Commission remains impartial and is efficient in how it delivers its rulings and thoroughly assesses the matter before it, it will soon become very clear that that is not an avenue for achieving other objectives if a lawyer is frustrated with a judge for reasons that are other than misconduct and lack of competence or professionalism,” Chipimo said.
“So we shouldn’t be quick to try and change rules but we should be quick to make sure that the process that determines these matters is efficient and sends a clear signal about what will be tolerated and not tolerated. Especially if the system is going to be abused by or is likely to be abused by a disgruntled individual or lawyer. The challenge here is how we can make sure that the process is efficient and delivers.”
He also said it was difficult for the Chief Justice to head the JCC because she would be faced with conflict of interest.
“It is very difficult to find the right balance when it comes to these issues because there must be a process by which people should be able to raise complaints against judicial officials. However the solution doesn’t lie in getting the chief justice to sit on the Judicial Complaints Commission because she herself may at some point be subject to a complaint and will therefore be a judge in her own cause,” said Chipimo.
“We want to try and keep this process independent. So it really should be made up of people who are not serving in the judiciary but have judicial knowledge, experience and knowledge and back ground as part of the team that accesses complaints against the judge.”