By Rodger M.A. Chongwe, S.C.
01.05.08

General Observations

Article 91(2) of the current Zambian constitution provides that

"The judges, members, magistrates and justices, as the case may be, of the courts....shall be independent, impartial and subject only to this constitution and the law and shall conduct themselves in accordance with a code of conduct promulgated by Parliament."

A Code of Conduct for judicial officers has already been enacted into law in answer to this provision of the Constitution.

Judicial independence as articulated in the constitution, though necessary and desirable, has its downside: judges who do not have to "answer" to anyone for their conduct or decisions may pursue self-serving agendas and become lords unto themselves.

Thus judicial independence must not be pursued to a point where judges become totally unaccountable for their actions. In short, judicial independence must be balanced with an appropriate measure of judicial accountability.

In a representative democracy, the primary method by which public officers are made to account for their official conduct is by making them (or their responsible superiors) submit periodically to a public vote of confidence (i.e. through elections).

But the electoral test, though desirable for the executive and the legislature, is generally inappropriate for judges. Elections necessarily imply politicking and with politicking comes partisanship. Therefore, to put judges through periodic elections will be to inject partisan politics directly into the judicial arena.

Moreover selection of judges by popular elections would, in my view, undermine the judiciary's role as a protector of the rights of minorities, because in order to win or retain their offices elected judges may have to pander to the wishes of the majority – which, in some cases, will mean betraying the legitimate interests and rights of the minority.

For these reasons most democracies (although in some of the States of the United States of America judges submit themselves to elections periodically) do not extend the requirement of periodic elections to the bench. Our constitution similarly gives our judges electoral immunity by providing for the selection of judges by appointment, rather than by elections.

Another mechanism by which public officers may be held to account for their actions is by granting members of the public, right to bring legal proceedings against public officers (or the government) for negligent or intentional breaches of their official duties. Here too in most commonwealth countries judges are granted constitutional immunity.

The 1992 constitution of Ghana Article 127(3), provides that a judge cannot be sued or held legally liable for errors or omissions made by him in exercise of his judicial power.

Like electoral immunity, judicial immunity from such legal liability is designed to promote greater judicial independence by ensuring that judges go about their work without fear of inciting litigation upon themselves. Immunity from law suits does not, however, preclude actions for mandamus to compel a judge to perform a mandatory duty or for prohibition to prevent a judge from acting without authority. Moreover a decision of a lower court can usually be appealed to and reviewed by the court above it.

Only infrequently issued, but also decisions of the court of last resort, even if still erroneous, are final and unreviewable. In short, while the supervisory and appellate jurisdiction of higher courts can be invoked to obtain some review of the conduct of the judges below, there are clear limits to the use of these intra-judicial avenues for holding judges accountable.

Judicial immunity under the constitutions of some of the Commonwealth countries is limited to what is necessary for the proper discharge of the judicial function.

Notably there is no constitutional provision purporting to give judges immunity from public or media criticism in respect of their official conduct.

Judicial accountability must not be regarded as a task to be borne solely by a particular segment or interest group in society. The fair and impartial administration of justice is like good government, a public good, because everyone, without exception, benefits when judges act fairly and impartially in the adjudication of cases.

Therefore making sure that judges exercise their power fairly, impartially, and independently of extraneous influences must be regarded as a civic duty of every member of society.

Judicial accountability is not, however, simply a matter of the citizen's duty. It is also arguably a right of everyone directly affected by the decisions of the courts. Any person with a direct stake in the conduct and outcome of judicial proceedings clearly has "standing" (generally speaking) to check or challenge abuses of judicial power.

Among such stakeholders are –

  • the parties to a case (who, legally speaking, are the ones primarily bound by the decisions of the court),
  • lawyers (who must appear before the courts professionally to represent their clients),
  • and the general public, which not only pays the taxes to support the judiciary but must, above all, individually conduct their lives in accordance with the laws as laid down by the courts.

Parties to the case

Parties to the case being the ones whose rights and interests are most directly at stake in judicial proceedings and will most directly be affected or altered by the outcome, the parties to a case are foremost among those entitled to a fair and impartial exercise of judicial power. From the perspective of the parties, such fairness and impartiality must extend to the conduct as well as the outcome of the judicial proceedings.

Judicial accountability in the conduct of the proceedings implies:-

1.. Openness or transparency in the judicial proceedings, so that third parties can observe and bear witness to the conduct of the proceedings.

2.. Transparency also requires that the proceedings be contemporaneously recorded, which record (i.e. the transcript of the proceedings) must be available for verification by the parties

3.. Each of the parties must be afforded a fair hearing: that is, each party must, at a minimum, have an opportunity to present his case, to hear the other side's story, to rebut the other's allegations and to cross-examine the other's witnesses.

4.. The proceedings must be conducted by a neutral judge who must have no personal interest or stake in the outcome of the case. Taken together, these conditions – transparency, fair hearing and a neutral judge constitute the minimum standards necessary to ensure that judicial proceedings afford each party due process of law

5.. The parties expect that the court's decision will be reached on the basis of the evidence and in line with applicable precedents.

In order to make certain that judicial decisions are true to both the facts and the law in the case, parties expect judges to provide detailed reasons for their decisions.

The role of the Legal Profession

The stake that lawyers have in judicial accountability is derivative of the rights of their clients to a fair and impartial adjudication of their case. A party's ability to receive fair and impartial treatment from the bench often depends on the quality of representation provided by Counsel. Proper and dutiful representation by Counsel is indispensable to making judges accountable to the parties in a case.

Lawyers as a group are concerned about the independence and accountability of the judiciary for the following reasons:-

1.. What the courts do must matter to lawyers because a widespread public distrust of the courts (due to a perception of bias, for example) will diminish public resort to the judicial system and, in turn, decrease the demand for lawyers' services.

2.. Judicial behavior and decisions, if they turn on considerations other than the merits of the case, will adversely affect the quality of lawyer-ing, because a lawyer's success in court will then depend less on his/her skill or competence and more on the biases or prejudices of the judge. Thus a biased or corrupt judiciary will invariably undermine both the economic prospects and the professionalism of the bar at large.

3.. The law is the practicing lawyer's stock-in-trade. The practicing lawyer is entitled to know with sufficient certainty and predictability what the law is at a given point in time, so that he /she can properly counsel his/her clients or make appropriate representations on their behalf. Since it is judges who ultimately must determine what the law is, it is natural to expect the practicing lawyer to take a deep interest in judicial conduct and decisions. Judges owe to lawyers, as they do to the parties in a case, a duty to provide detailed reasons and analysis to support their decisions. Only then can lawyers determine whether such decisions are consistent with established precedents

The role of the Public in judicial accountability

Other constitutions of commonwealth countries require the judiciary to be accountable to the people the same way as the Legislature is directly accountable to the electorate and the Executive is accountable to the electorate through the legislature.

Article 125(1) of the constitution of Ghana provides that:

"Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary........."

The public have a right to demand accountability from one of the most important public institutions of all, the judiciary. As I have already pointed out in this article it is the public that provides resources with which the judiciary functions, and it is to the same public that the courts' decisions are ultimately addressed.

The judiciary also ultimately derives its legitimacy from un-coerced public acceptance of the decisions of the courts, and from widespread public belief in the idealized view of judges as fair and impartial.