JUDICIAL ACCOUNTABILITY
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.
