Judicial Systems in Sierra Leone, Tanzania and Zambia
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Head Offi ce Block D, Brooklyn Court, Veale Street, New Muckleneuk, Pretoria 0181, South Africa Tel +27 12 346 9500 Policy Brief Fax +27 12 346 9570 E-mail [email protected] www.issafrica.org Knowledge empowers Africa! le savoir émancipe l’Afrique! Policy Brief Nr 15, October 2009 Judicial systems in Sierra Leone, Tanzania and Zambia Etannibi E O Alemika [email protected] INTRODUCTION Covenant on Civil and Political Rights (ICCPR) of the United Nations. Th ese instruments guarantee a Th e contemporary judicial systems and cultures in Sierra range of rights for citizens suspected or accused of Leone, Tanzania and Zambia were established during committing a crime or crimes. Fundamentally, they British colonial rule. During this time, the principle of prescribed that accused persons should be presumed separation of executive, legislative and judicial powers innocent until found guilty by competent and impartial was not observed, as colonial administrative offi cers tribunals or courts. Th ey also prohibit retroactive frequently exercised both legislative and judicial powers. legislation; arbitrary arrest and detention, torture and Th ey made bye-laws and presided over adjudication of extra-judicial killing; self-incrimination; and double cases. As the decolonisation struggle intensifi ed in the jeopardy. Th e legal instruments also guarantee prompt British colonies in Africa and political independence arraignment of accused persons before a competent became imminent, a feeble attempt was made to estab- judge; equality before the law; fair and public hearing lish separate judicial, legislative and executive organs. by a competent, independent and impartial tribunal However, the executive arm of government remained established by law; adequate time and facilities for the dominant. preparation of defence; access to counsel; trial without undue delay; and access to appellate review of judgment Under colonial rule the judiciary and legislature were of conviction. largely seen as instruments of administration rather than equal and complementary organs of society with distinct Th ese rights have been incorporated into the contem- functions. In post-colonial African nations this heritage porary constitutions of most African nations. Although has unfortunately persisted. In spite of elaborate con- all criminal justice agencies and offi cials are required stitutional and institutional architecture involving the to observe and respect these provisions, the judiciary separation of executive, legislative and judicial powers, is ultimately responsible for ensuring their observ- the executive organ persists as the dominant organ of ance by penalising any organisation or person that governance, in most cases determining the quantum of breaches them, thereby preventing impunity. However, resources available to the judiciary and legislature and the judiciary cannot justly, eff ectively and effi ciently thereby eroding their powers, independence, perform- interpret the law unless it is independent of control ance and integrity. and infl uence from executive, legislative and other forces and properly equipped with human and material African countries are signatories to several internation- resources. al and continental legal instruments on the roles and powers of the judiciary in criminal justice administra- Judicial independence tion. Among these instruments are the African Charter on Human and People’s Rights; the United Nations An independent, fair and effi cient judicial system Declaration on Human Rights; and the International is necessary for the attainment, consolidation and 1 sustenance of democratic governance. A democratic JUDICIAL SYSTEMS OF SIERRA (independent, fair and effi cient) judicial system is both LEONE, TANZANIA AND ZAMBIA a product and a guarantor of democratic society. It aids democracy by enhancing and enforcing the rule Sierra Leone (in West Africa), Tanzania (in East Africa) of law, thereby fostering human rights, justice and the and Zambia (in Southern Africa) are former British colo- security of citizens from violence, as well as oppression nies and inherited similar colonial political, economic by state and non-state organisations and actors. It also and legal systems. aids economic development by enhancing the enforce- ment of contractual rights and obligations and thereby Sierra Leone promoting economic investments, productivity and opportunities with positive impacts on employment, Th e estimated population of Sierra Leone is six million incomes, poverty reduction and economic induced people. Freetown, its capital city, was declared a colony confl icts and insecurity. by the British in 1808. Th e remaining parts of the country were brought under British domination as a Judicial independence embodies separation of power and protectorate in 1896. Th e country gained its independ- the rule of law. Van de Vijver notes that: ence in 1961. For a decade (1990–2000) it was engulfed in a civil war. However, the country has witnessed increas- At the heart of the establishment and ing political stability and relatively free electoral process maintenance of judicial independence lie the since the end of the civil war in 2000. attitude and approach of the legislature, the executive and civil society. Th e administration Sierra Leone faces serious challenge of weak criminal of justice, the courts and the judicial offi cers, justice system due to its legacy of political interference must be taken seriously, and valued for their and the civil war. Th e country’s criminal justice system contributions to good government and the rule lacks adequate personnel with requisite skills as well of law. Th e courts must be adequately fi nanced; as facilities to provide eff ective and fair services. For a competent and effi cient administrative example, there is still distrust of the police among infrastructure must be maintained; judges must the population and law enforcement offi cers are still enjoy decent and secure working conditions inadequately trained. Many areas are not served by (offi ces, equipment, libraries, etc); judges must public police thereby yielding space to diff erent informal be competitively remunerated; orders of court policing groups. Th ese challenges, no doubt, negatively must be complied with promptly and fully by the impact on the country’s judicial system. executive, especially when it (or the legislature) has been found wanting; politicians must be Th ere are fi ve types of courts in the country. Th ese are careful not to belittle or demonise the courts for local courts, magistrate’s courts, the High Court, the doing a competent job; and so on.1 Court of Appeal and the Supreme Court. Th e country’s judicial system was generally effi cient until 1964 when Th ese elements are contained in the Basic Principles of political interference began to undermine its independ- the Independence of the Judiciary.2 ence, impartiality and performance. Th is trend became progressively worse until 1990, when the civil war started. Essentially, judicial independence requires that a coun- try’s judicial system be insulated from external infl uence, Th e nation’s current constitution provided for an either from governmental sources such as legislative, independent judiciary headed by the Chief Justice. It also executive, or administrative authorities, or from private provided that the Chief Justice shall be appointed by the interests attempting to exert economic, social, ethnic, President on the advice of the Judicial and Legal Service religious or regional pressures on judges.3 Th e principal Commission and subject to the approval of Parliament. goal of judicial independence is to maintain the courts’ Formally, there is constitutional guarantee of judicial integrity and credibility within a political system.4 independence in the country. However, gross inadequa- Judicial independence has, according to Lagon, two key cies of human and material resources militate against the components: decisional independence, defi ned as respect performance of the judiciary. for and compliance with the courts’ decisions, and structural independence, which means freedom from Th e judicial system in Sierra Leone faces several chal- political leaders’ interference in the selection, promo- lenges, for example poor conditions of service; shortage tion, compensation, and daily operations of judicial of judges due to low wages; lack of modern recording personnel.5 devices for court proceedings; inadequate facilities and 2 fund for training and retraining; outdated statutes; heavy Appeal. Judges of district and resident magistrate’s courts caseloads; and corruption. Some of these problems are are appointed by the Judicial Service Commission while being addressed through post-confl ict donor assistance. judges of primary courts are appointed by the Judicial Ongoing initiatives to strengthen the system include the Special Service Commission. Th e mode of appointment introduction of new rules of civil procedure; case track- of judges, especially to the higher courts, is vulnerable ing and reporting system for magistrate’s courts; review to political interference, ethnic and other considerations of legislation; and improving remunerations and condi- that undermine judicial independence, impartiality tions of service of magistrates, judges and support staff . and integrity. Th e major challenge is the sustainable of these initiatives, especially when donor funding is discontinued. Th e Tanzanian judicial system lacks adequate personnel, especially