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Access to Justice Zambia Report INSTITUTE FOR AFRICAN DEVELOPMENT PROJECT REPORT ACCESS TO JUSTICE: COURT EFFICIENCY IN ZAMBIA TINENENJI BANDA ~ I- SOUTHERN AFRICAN INSTITUTE ._ for POLICY AND RES ARCH Access to Justice: COURT EFFICIENCY IN ZAMBIA OCCASIONAL PAPER SERIES of the INSTITUTE FOR AFRICAN DEVELOPMENT CORNELL UNIVERSITY 2019 The Cornell Institute for African Development (IAD) coordinates teaching, research and outreach and activities related to social issues, food security, human resource development, environ-mental resource management, economic growth, and public policy guidance in Africa. The IAD Occasional Paper Series publishes multi- disciplinary, holistic, policy-oriented articles in fields of African studies relevant to development. All manuscripts are reviewed by peers on the basis of scholarship, extent of original research, rigor of analysis, and significance of the conclusions as well as the scholarship relevance to issues affecting Africa. Copyright © 2019 by the Institute for African Development. All rights reserved ISBN: 978-1-7344934-0-5 Acknowledgement Special thanks to the Institute of African Development and the Einaudi Center for International Studies at Cor- nell University, as well as the Southern African Insti- tute of Policy and Research for their financial and lo- gistical support. We acknowledge the invaluable work of Tony Zhou, Tireniolu Onabajo, Wankumbu Malenji, Sarah Gibbons, Chisiki Matafwali and Paul Chipili for their research assistance. Special thanks to Muna Ndulo and Marja Hinfelaar for their valuable advice and guid- ance at various stages of the project. Preface It is widely acknowledged that respect for the rule of law and the protection of individual rights are necessary con- ditions for sustainable economic and social develop- ment. An effective and efficient justice sector is critical to the promotion of the rule of law. The building and strengthening of the human rights architecture, the deep- ening of democracy, as well as the enhancement of pub- lic participation in governance all require an effective ju- diciary. An effective judiciary acts as an essential check and bal- ance on the legislative and executive branches of gov- ernment, ensuring that the laws of Parliament and the acts of the executive comply with the Constitution and the rule of law.1 Only a competent, independent, and ef- ficient judiciary can perform these functions. An effec- tive and efficient judiciary has been described as “one that is predictable, resolves cases in a reasonable time frame, and is accessible to the public.”2 There has been widespread dissatisfaction with the per- formance of the Zambian judiciary. One of the major challenges facing the Zambian judiciary has been that of inefficiency and inordinate delays in the processing of 1 Ndulo, Muna (2013) "Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to a Just System," Zambia Social Science Journal: Vol. 2: No. 1, Article 3. Available at: http://scholarship.law.cornell.edu/zssj/vol2/iss1/3 2 Dakolias, Maria (1999) "Court Performance Around the World: A Comparative Perspective," Yale Human Rights and Develop- ment Journal: Vol. 2: Iss. 1, Article 2. Available at: http://digital- commons.law.yale.edu/yhrdlj/vol2/iss1/2. cases. Congestion in the court system and the unreason- able delays in the disposal of court cases are unfortunate realities of the judicial process.3 The unreasonable de- lays also extend to delays in judgment delivery. In light of these challenges and given the critical function that the courts perform, it is important that the performance of the courts is measured against objective standards. Access to justice challenges disproportionately impact the poor and vulnerable populations of society including women, children, juveniles and persons living with dis- abilities. Indeed, various traditional, cultural and social perspectives can exacerbate this disproportionate im- pact. Access to justice is not just a fundamental right in itself; it is also an essential prerequisite for the protection and promotion of all other civil, political, cultural, economic and social rights. Access to the courts promotes stability and political liberalization, allowing all segments of the population the opportunity to seek redress under the law. This is especially important for vulnerable groups that rely on the justice system to protect and enforce their rights. Facilitating access to justice for all requires that national courts perform in an efficient and effective man- ner. However, no study has sought to measure court per- formance in Zambia. This study by Dr. Tinenenji Banda is the first of its kind. Judicial reform must be preceded by key information inputs that accurately frame the prob- lem. While much reference has been made to the ineffi- ciency of the Zambian judicial system, the evidence is largely anecdotal. There is no data available on any of the indicators measured by this study. Therefore, this study, while only a first step, is hugely significant. The 3 Zambia Rule of Law Assessment, USAID, June 2009 Available at: http://pdf.usaid.gov/pdf_docs/Pnadt562.pdf. lack of reliable and accessible statistics is a huge barrier to judicial reform because the outcomes of any reform initiative can only be quantified by accurate data. While court performance measurement is a relatively new phenomenon, it is a movement that has gained mo- mentum over the last few years. Recognizing the im- portant role of the courts in a well-functioning democ- racy, many government and non-governmental stake- holders now demand performance indicators that can gauge the efficiency and effectiveness of the judicial sys- tem. There is very little, if any, empirical data on the performance of Zambian courts. The data presented in this study can be a critical input to future reform initia- tives. Moreover, this study goes beyond data collection and seeks to explain the root causes of the inefficiency, as well as make recommendations for improvement. It is hoped that the study can provide a frame of reference for policy makers as well as a firm basis for the com- missioning of further research. It will also be valuable to other African countries that face similar problems and seek to improve the efficiency of their courts. Muna Ndulo Table of Contents List of Acronyms ...............................................................v List of Figures and Tables ................................................1 Part 1. Introduction .........................................................9 Aim and Scope................................................................9 Defining Court Efficiency.............................................10 Significance of Project..................................................17 Part II: Measuring Efficiency: International, Regional, and National Approaches International Studies .....................................................25 Regional Studies ...........................................................29 National Studies............................................................35 Part III: Methodology....................................................67 Quantitative...................................................................67 Qualitative.....................................................................73 Part IV: Findings Quantitative Findings....................................................67 Qualitative Findings......................................................73 Part V: Discussion of Findings Quantitative...................................................................67 Qualitative Part VI: Recommendations and Future Stories Recommendation and Future Stories............................67 Part VII: Bibliography Bibliography ....................................................................76 List of Acronyms DEA Data Envelopment Analysis DMU Decision-Making Unit FDH Free Disposal Hull FNDP Fifth National Development Plan GBV Gender Based Violence IFCE International Framework for Court Excellence KPI Key Performance Indicator PPF Production Possibility Frontier RAT Revenue Appeals Tribunal SFA Stochastic Frontier Analysis ZAMBIALII Zambia Institute of Legal Information 1 List of Figures and Tables FIGURE 1: Court Structure in Zambia…… 20 FIGURE 2: Observer Checklist Template ….48 TABLE 1: High Court General Exact Disposition Times …………………………..51 FIGURE 3: High Court General Exact Disposition Times …………………………..52 TABLE 2: High Court General Estimated Disposition Times ………………………… 53 FIGURE 4: High Court General Estimated Disposition Times ………………..54 TABLE 3: High Court (Commercial) Exact Disposition…………………………….54 FIGURE 5: High Court (Commercial) Exact Disposition Times …………………….55 TABLE 4: High Court (Commercial) Estimated Disposition Times ………………..55 FIGURE 6: High Court (Commercial) Estimated Disposition Times ..........................55 TABLE 5: Cross Court Comparison Disposition Times……………………………55 FIGURE 7: Cross Court Comparison Disposition Times …………………………...56 2 FIGURE 8: High Court General Ruling Outliers by Frequency Distribution ……...57 FIGURE 9: High Court General Judgment Outliers by Frequency Distribution ……...58 FIGURE 10: High Court (Commercial) Ruling Outliers by Frequency Distribution ……………………………………………58 FIGURE 11: High Court (Commercial) Judgment Outliers by Frequency Distribution ……………………………………………59 TABLE 6: Observed Reasons for Delay in the Subordinate Court of Zambia …..…60 3 Part I: Introduction Globally, millions of litigants involved in legal cases arrive at
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