By Christopher Muyoka
12th April, 2024
Learned authors such as Lord
Bingham and AV Dicey have attempted to appreciate the principle of rule of law,
a concept of constitutionalism which is arguably the most fundamental one as it
ensures that arbitrary power in a state is non-existent. This principle is best
understood as ensuring equal treatment, absence of arbitrary power and
supremacy of the law. However, the existence of rule of law is entirely
dependent on the independence of the judiciary, which is observed to be an
agent of law that protects the fundamental ideals of the constitution. This
essay aims to show how the judiciary exercises its independence in a practical
sense.
The Judiciary is an organ of government that is responsible
for interpreting the law and rendering judgments in the courts of law (The
Constitution of 1991 with amendments through 2016). In this regard, judicial
independence pursuant to article 122,
refers to the ability the judiciary has in making decisions free from the
manipulation or interference of the other organs of government or any public
authority. This principle is best understood through the principle of
separation of powers which requires the organs of government, namely the
legislature, executive and judiciary coexist and provide checks and balances
towards each other.
In appreciating the concept of
judicial independence, protection of constitutional supremacy is observed to be
the first effect of this concept. As earlier stated, the constitution being the
supreme law of the land requires that its ideals are protected from being
manipulated to suit those in power. As such, the aspect of supremacy of the
constitution entails that an independent body, in this case the courts of law
or judiciary, exist in order to protect it. In other words, the practicality of
the courts in protecting constitutionalism is observed in the cases of Christine Mulundika and Seven Others v The
People( 1996 ZMSC 26 ) and Thomas
Mumba v Attorney General (1984 ZR, 38 ) , where the courts interpreted
provisions of statutes as being contrary to the Constitution and rendered them
null and void.
Additionally, because the law recognizes the courts as an institution
that protects constitutional superiority, it is important that the judiciary
exists autonomously (Ernest Limesi Sakala , Autonomy
and independence of the Judiciary in Zambia: Realities and Challenges, the
University of Zambia, School of Law, P28
No. 23 of 2016). In this regard, The Judicature Act7, exists as a governing statue
responsible for guiding the administrative authority of the courts and is
observed to be in conformity with article
122(3) which is the inception of judicial administrative authority. Put
simply, the existence of this act acknowledges the existence of an independent
(The Constitution of 1991 with Amendments Through 2016) to judiciary.
Having discussed the effect of an independent judiciary to the principle
of constitutional supremacy, the next aspect of judicial independence is the
principle of statutory interpretation. Statutory interpretation refers to the
courts discretion in appreciating acts of parliament as a source of law (Brenda Rachael Phiri, AN Evaluation of Rule
of Statutory Interpretation: The Case of Celtel Zambia LTD(T/A Zain Zambia) V.
Zambia Revenue Authority 2010/HPC/668. The University of Zambia, School of Law,
P9 10 2022 ZMCA 107) This entails that the court in
acknowledging and respecting the powers vested in legislature to make laws,
interprets statutes in a manner that is not only consistent with the
constitution as discussed earlier, but also promotes equity, equality and
justice where necessary.
In appreciating statutory interpretation, it is imperative to note that
the court’s primary objective is to interpret legislation in its literal sense
so as not to undermine the powers of legislature as observed in Mirriam Chilosha v The People10,
where the court in determining the interpretation of section 328 of The Penal Code (Chapter 87 of The Laws of Zambia) held that;
“The role of the
court is to give effect to the intention of legislature, which is expressed in
the clear words of the statute. The most fundamental canon of interpretation is
to give the words their ordinary and natural meaning.”
However, in as much as the court ought to respect the powers of the legislature it is still capable of reaching its own verdicts without being restricted to the literal interpretation of statutes. On that note, the case of Attorney General and MMD v Lewainka and 4 others (SCZ No.2 of 1994) showed the dangers of strict adherence to the literal meaning of statues as it held that where literal interpretation would result in an adverse effect the court ought to interpret the statute in a manner that ensures justice prevails. This form of statutory interpretation is known as The Golden or Purposive rule as observed in Citibank Zambia Ltd v Dudhia (2023 ZMSC 1)
As a result of the doctrine of statutory interpretation, the courts have
been observed to create their own source of law referred to as judicial
precedent. This source of law can be observed as being a practical effect of
the independence of the judiciary, in that it displays the ability of the
judiciary to not only create new principles of law that aid in the amending of
acts of parliament but also create standard customs and principles for all the
courts to operate with through the principle of stare decisis, which refers to
a principle of law that binds courts to the judgments passed by the supreme
court as espoused in Match Corporation
Limited And Development Bank Of Zambia And The Attorney General (1999 ZR 18) and
Abel Banda v The People (1986 Z.R. 105)
As discussed above, the practical effects of judicial independence can be
observed to protect an aspect of law, with the rule of law being at the heart
of it. In ensuring that there is fair treatment with regards the law the court
has displayed its authority within the confines of the doctrine of separation
of powers. On this note, the most prominent feature of judicial independence is
observed through the administrative law remedy of judicial review.
Judicial review is a discretionary remedy in which the court reverses the decision of a public body or entity operating in public capacity as espoused in Amos Musuba v Attorney General (2012] Appeal No.97). This remedy is seldom granted by the courts as the court in understanding its ability to make decisions cautions itself against being quick to reverse decisions as doing so risks abusing their independence at the expense of the executive’s authority. This rationale was espoused in Derrick Chitala (secretary of the Zambia Democratic Congress) v Attorney General (1995) where the court had to analyse whether the fact in issue satisfied the requirements necessary to enforce the remedy of judicial review.
Having discussed these practical effects of the aspect of judicial
independence, suffice it to state that the focal point of this principle is
protecting constitutionalism through respect of law achieved by respecting
separation of powers and acknowledgment of the autonomy of the judiciary by the
constitution.
LEGAL AID INITIATIVE
(Bringing the Law to Your Comfort)
About the Author:
Christopher Muyoka is a third year student at the University of Zambia and the winner of the Legal Aid Initiative Essay writing competition 1st Edition
