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.

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 guidance 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 conditions for sustainable economic and social development. 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 deepening of democracy, as well as the enhancement of public participation in governance all require an effective judiciary.

An effective judiciary acts as an essential check and bal- ance on the legislative and executive branches of government, 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 efficient judiciary can perform these functions. An effective 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 performance 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://digitalcommons.law.yale.edu/yhrdlj/vol2/iss1/2. cases. Congestion in the court system and the unreasonable delays in the disposal of court cases are unfortunate realities of the judicial process.3 The unreasonable delays 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 impact.

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 manner. However, no study has sought to measure court performance 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 problem. While much reference has been made to the inefficiency 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 momentum over the last few years. Recognizing the important role of the courts in a well-functioning democracy, many government and non-governmental stakeholders now demand performance indicators that can gauge the efficiency and effectiveness of the judicial system. 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 commissioning 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 the doorsteps of a courthouse, not only without a lawyer to represent them, but also without an understanding of what to do, where to go, what will happen, or how long it will take. The first ever “Global Survey of Legal Needs” surveys the legal needs of 1,000 people in 45 countries.1Over half of the respondents surveyed report having encountered a legal issue in the last two years.2 With this staggering global legal need in mind, a critical assessment of the structures, procedures and mechanisms designed to meet legal demands is critical.

While skepticism about the adequacy of the court system to meet the justice demands of citizens is at an all-time high, the reality remains that for now, the courts are still the focal point for the protection, enforcement and safeguarding of legal rights and remedies. As Vanderbilt notes:

[it] is in the courts and not in the legislature that our citizens primarily feel the keen cutting edge of the law. If they have respect for the work of the courts, their respect for law will survive the shortcomings of every other branch of government; but if they lose respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of society"3.

1 Chapman, C. & Ponce, A. (2016) How Do We Measure Ac- cess to Justice? A Global Survey of Legal Needs Shows the Way. Available from: https://www.opensocietyfounda- tions.org/voices/how-do-we-measure-access-justice-global-survey-legal-needs-shows-way. [Accessed October 2018] 2Id. 3 Vanderbilt, A. (1955) The challenge of Law Reform. Princeton, Princeton University Press, p45 as quoted in Abraham, H. (1968) The Judicial Process. 2nd ed. New York, Oxford University Press. p. 4.

The judiciary therefore, is central to the protection of the rule of law and the protection of fundamental rights and freedoms. It is also an essential check on the legislative and executive branches of government, ensuring that the laws of parliament and the acts of the executive meet constitutional muster.

The building and strengthening of the human rights architecture, the deepening of democracy, as well as the enhancement of public participation in national matters, depend in part, on an effective judiciary. Indeed, the courts play an important role in strengthening democratic institutions that are respon- sive to justice imperatives and can adequately protect and promote human rights. Moreover, Zambia’s legal framework en- trenches the right to the dispensation of justice in a reasonable time. Article 118 of the Zambian constitution stipulates that the judiciary shall discharge their duties according to the guid- ing principle of “justice without delay.”4 Furthermore, the Bill of Rights in Article 18 provides that cases “shall be given a fair hearing within a reasonable time”.5 It follows then that an effective judiciary can be described as one that is “predictable, resolves cases in a reasonable time frame, and is accessible to the public”.6

Given the critical function that the courts perform, it is essential that the performance of the courts is measured against a rationalized standard. While court performance measurement is a relatively new phenomenon, it is a movement that has gained momentum over the last few years. Recognizing the important role of the courts in a well-functioning democracy, many government and non-governmental stakeholders have

4The Constitution of Zambia (Amendment) 2016. Article 118 5The Constitution of Zambia 1996. Article 18 6 Dakolias, M. (1999) Court Performance Around the World: A Comparative Perspective. Yale Human Rights and Development Journal. 2 (1), Article 2. Available from: http://digitalcommons.law.yale.edu/yhrdlj/vol2/iss1/2 [Accessed October 2018]. p.87

now devised performance indicators to gauge the efficiency and effectiveness of the judicial system.

The Law Association of Zambia has also made clear its thoughts on the nuanced role of the judiciary, stating in 2012 that:

“While we are strong proponents of judicial independence, we are equally stronger proponents of judicial accountability. Judicial independence and judicial accountability are not inconsistent and can therefore coexist. The judiciary should not be ungoverna- ble…elitist or untouchable.”7

Of the myriad challenges facing the Zambian court system, one of the most perennial is that of inefficiency. Court inefficiency is a global problem.8 In Zambia, congestion, backlog and the unreasonable delay in the disposal of court cases are unfortunate realities of the judicial process.9 As acknowledged by Zambia’s Chief Justice Irene Mambilima “The big- gest challenge facing the Judiciary currently is the backlog of cases and delays in the disposal of cases and the delivery

7 Ndulo, M (2013) Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to a Just System. Zambia Social Science Journal. 2 (1), Article 3. Available from: http://scholarship.law.cornell.edu/zssj/vol2/iss1/3 [Accessed Octo- ber 2018]. p.1. 8 E.g. Dakolias, M. (1999) Court Performance Around the World: A Comparative Perspective. Yale Human Rights and Development Journal. 2 (1), Article 2. Available from: http://digitalcommons.law.yale.edu/yhrdlj/vol2/iss1/2 [Ac- cessed October 2018]. 9 Michel, J., O’Donnell, M. & Munalula, M. (2009) Zambia Rule of Law Assessment. USAID. Available from: http://pdf.usaid.gov/pdf_docs/Pnadt562.pdf [Accessed October 2018].

of judgments”.10 Unlike many African nations (Malawi, Uganda, South Africa and Ghana are some examples), the Constitution of Zambia does not limit the amount of time that a suspect can be remanded in custody before being brought before a court of law.

A 2009 study on the rule of law in Zambia found that:

“Both civil suits and criminal prosecutions incur unreasonable delays. Reasons for delay include rigid and unduly complex procedures, lax case management practices that tolerate excessive adjournments and continuances, [and] lack of automated management information systems to facilitate performance management.”11

The study went on to note that:

“The high percentage of cases that are appealed…have resulted in overwhelming congestion, delaying unreasonably the finality of judgments, including [the delay of the] execution measures to give them practical effect.”12

In terms of delayed delivery of judgments, in a 1985 case, an applicant commenced an action to compel a judge to deliver a judgment which had been pending for 8 months.13 The applicant sought to do so by applying for a writ of mandamus.

10 The Mast Online (2018) Judge Chitabo wants CJ to head JCC, JSC. Available from: https://www.themas- tonline.com/2018/01/08/judge-chitabo-wants-cj-to-head-jcc-jsc/ [Accessed October 2018]. 11 Supra note 9 at p. 7. 12 Id. 13 Miyanda v High Court (S.C.Z. Judgment No.5 of 1984) [1984] ZMSC 7 (17 June 1984) Available from: https://zambialii.org/zm/judgment/supreme-court/1984/7 [Accessed October 2018]

The Supreme Court of Zambia held that mandamus is not an appropriate remedy against judges of the superior courts.14 After the judgment was delivered, the applicant took out suit against the judge in question for unreasonably delay in the is- suance of the judgment.15 The High Court ruled that a judge could not be sued for adjudicatory delay and that the insula- tion of judicial officers from lawsuits was indispensable to judicial independence. The net effect of these judgments is therefore that litigants have no remedy against delay in the delivery of judgments.

AIM AND SCOPE

While access to justice has many components, the speed with which litigants can have their case disposed of is an important justice indicator. While there is widespread belief that the courts are inefficient, the evidence of this inefficiency is largely anecdotal and impressionistic. There is very little, if any, empirical data on the performance of Zambian courts. This project seeks to address this gap and examine how efficiently the courts dispense justice and how ordinary citizens seeking legal remedies interface with the judicial system. It is hoped that research findings can inform the development of norms and standards that can facilitate sound case management models and accountability.

This study uses both qualitative and quantitative methods. Qualitatively, the project does two things; first, it employs a

14 Id. 15 Miyanda v Chaila (HC) [1985] ZMHC 5 (30 July 1985) Availa- ble from: https://zambialii.org/zm/judgment/high- court/1985/5 [Accessed October 2018].

non-participant observation method of the Subordinate Court of Lusaka. Second, using content analysis, it surveys judicial decisions, documenting the reasons courts cite for delay. Quantitatively, the study calculates the disposition times of published civil High Court Judgements and Rulings delivered between 2011 and 2017.

This study resists the common penchant to lay all the blame for court delay at the doorsteps of the judiciary. Taking a multi-dimensional approach, the study shows that the courts are just one factor in the unhappy story of court delay and congestion.

DEFINING COURT EFFICIENCY

There is no universally accepted definition of “court efficiency”. The definition of an efficient court varies across dis- ciplines, justice systems and the unique factual circumstances attendant in each distinct case.

Court Efficiency and Parent Terms

In Zambia, court efficiency is often conflated with judicial performance and/or effectiveness. Mainstream complaints about the judiciary tend to be quite broad and include a range of grievances including bias and delay. While efficiency is an aspect of court performance, they are not one and the same.

According to Staats et al16 there are five dimensions of judicial performance: 1.) Independence, 2.) Efficiency 3.) Acces- sibility, 4.) Accountability, and 5.) Effectiveness. Efficiency is this a sub-component of the broader category of “performance.” For Dakolias17, “quality” in the context of the courts consists of three elements: 1.) Substantive and procedural law, 2.) Judicial decision-making, and 3.) Judicial administration. Although only elements number two and three directly affect common considerations of court efficiency, both performance and efficiency are constrained by element number one. In Zambia, the complexity of the procedural law has a profound effect on efficiency. Additionally, the inaccessibility of the substantive law is an issue for both quality and efficiency. Lord Bingham’s seminal work on the Rule of Law defines the rule of law as the fulfillment of four factors:

[1] The law must afford adequate protection of fundamental human rights. [2] Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. [3] Adjudication procedures provided by the state should be fair. [4] The law must be accessible and so far as possible in- telligent, clear and predictable.18

From this framing, efficiency is therefore not an end in itself, but rather a means to the end, which is the rule of law. Indeed, all of the above conceptualizations lend credence to the framing of efficiency in the Zambian Constitution. Section 118(2)

16 Staats, J., Bowler, S. & Hiskey, J. (2005) Measuring judicial performance in Latin America. Latin American Politics and So- cieties. 47 (4). pp. 77-106. 17 Supra note 6. 18 Bingham, T. (2010) The Rule of Law. London: Allen Lane, Pen- guin Press.

of the Constitution stipulates that “justice shall not be delayed”. Two things of significance must be noted. First, the ‘delay clause’ is an addendum to the establishment of the judiciary and courts, most namely that of Section 118(1), to which: “[t]he judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.” Second, it must also be noted that the predicate of what must not be delayed is not a court decision but is instead, justice writ large. This means that, at least for Zambia, court efficiency must be understood as inseparable from the rule of law.

The Technical Approach to Efficiency

The predominant trend in the literature is to adopt a purely technical approach to efficiency. Technical efficiency is a measured comparison of a Decision-Making Units (DMU) inputs versus outputs.19 A DMU is an organization that makes direct use of resources to provide a service to third parties.20 A DMU is necessarily constrained by input, externally designated goals, and control/environmental variables.21 St. Aubyn, in his 2008 article, also raises the interesting heuristic of a production possibilities frontier.22 A Production Possibil- ities Frontier (PPF) is the set of maximally possible outputs for each level of input within a DMU. For the courts, this might be a guideline on the maximum number of cases resolved for each level of funding and/or a fixed time-period.

19 Odhiambo, O. (2016) Technical Efficiency of the Kenyan Judici- ary: A Case of the Magistrates’ Courts. School of Economics, University of Nairobi. 20 St Aubyn, M. (2008) Law and Order Efficiency Measure- ment - A Literature Review. School of Economics and Man- agement, Technical University of Lisbon. Available from: http://pascal.iseg.utl.pt/~depeco/wp/wp192008.pdf [Accessed October 2018]. 21 Id. 22 Id.

How the PPF is determined may vary by method. Using this model, inefficiency is seen as the difference between the real outcome of the DMU and what is maximally possible. Ac- cording to Yeung and Azevedo, it is difficult to measure ab- solute efficiency under this model, since this would entail set- ting an objective standard for what inputs ought to produce.23 In their view, relative efficiency, which would entail extrap- olating a standard from other comparable DMUs, is more realistic.

Another technical approach to efficiency looks at the exogenous productivity of judges. In terms of the genesis of this approach, Jonski and Mankowski argue that “fueled by an array of theoretical and econometric models, researchers endorsed the so-called ‘exogenous productivity of judges’ – the hypothesis stating that judges pressured by growing caseloads adjust their case processing activity to increase their productivity…”.24 When relating exogenous productivity to PPF this question arises; should the PPF be constructed under a con- stant returns to scale or increasing returns to scale model? In other words, should each increase in the number of cases/resources of a court lead to the same increase in decisions per time-period, or should it lead to larger subsequent increases in decisions per time-period? It is hard to say. One could

23 Yeung, L. & Azevedo, P. (2010) Measuring efficiency of Brazilian courts with data envelopment analysis (DEA). IMA Journal of Management Mathematics. 22 (4). pp. 343–356. [Accessed October 2018]. 24Jonski, K. & Mankowski, D. (2014) Is Sky the Limit? Revisiting ‘Exogenous Productivity of Judges’Argument. (January 4, 2017). International Journal for Court Administration. 6 (2). Available from: https://ssrn.com/abstract=2893822 [Accessed October 2018]. p.54

make the argument that awareness of backlog may force judges to place emphasis on speed (as cited within published judgments). On the other hand, one may say that absent major change, elements of courts are constrained to their original levels of efficiency.

According to Voigt25, the justifications for adopting a technical definition are as follows. First, it is objective/factual, and coincides well with many existing instruments and data sets. However, given the lack of comprehensive national data in Zambia, this is not true for Zambia. Second, in answering those who advocate that the “quality” of decision-making as an important efficiency input, the proponents of the technical efficiency method argue that it is not useful to overly prioritize quality over technical efficiency because quality is an endless pursuit.

Limitations of the Technical Approach

A major criticism of the technical approach to efficiency, particularly for lawyers, is that there is an important tradeoff between quality and speed. For Hoffmann-Riem26, “[i]f efficiency does not only imply the optimal use of resources but more generally an adequate relationship between aims and means, a question does need to be asked very seriously, namely whether the aims of truth and justice can be subject to a relativization by economic considerations.”27 Indeed, “indi- viduals directly involved in a specific court case who are…demanding a private good are likely to care most about

25 Voigt, S. (2016) Determinants of judicial efficiency: a survey. European Journal of Law and Economics, Springer. 42(2). pp. 183-208. 26 Translated in Voigt Id. 27 Id.

two dimensions, namely (1) speed and (2) quality. This im- plies that when interested in reducing court delay, output quality should always be controlled for as increased speed could be trade off with lower quality. For those not directly involved in a pending case, the quality of a judgement in producing reliable precedent and reducing general uncertainty seems more relevant than speed.”28

Similarly, for Fix-Fierro29, some principles of court performance are self-conflicting, e.g. just decisions vs. speediness. However, “the minimization of the sum of error and direct costs in adjudication is not equivalent to the unilateral maxi- mization of efficiency over justice”.30 Also, “procedures can never become speedy enough because, as autonomous social systems, they create their own particular social time and rhythm”.31 Yeung and Azevedo32 conclude that judicial efficiency and quality are not mutually exclusive. For them, the reason is simple: “An efficient court might be regarded as one in which there is a high level of quality and of speediness. On the other hand, if a court guarantees ‘quality’ in decisions but it takes a long time to do so, it cannot be identified as one that delivers high-quality service”.33

As acknowledged elsewhere:

28 Id.; See also Landes, M. & Posner, A. (1979) Adjudication as a Private Good. The Journal of Legal Studies. 8(2), pp. 235. 29 Fix-Fierro, H. (2004) Courts, Justice and Efficiency. Oxford: Hart Publishing. 30 Id at p. 236 31 Id. 32 Yeung, L. & Azevedo, P. (2010) Measuring efficiency of Brazilian courts with data envelopment analysis (DEA). IMA Journal of Management Mathematics. 22 (4). pp. 343–356. 33 Id. at 345

“lawyers tend to focus on the quality of judicial services: courts and judges must prioritize the quality of their decisions in order to increase utility and welfare. Economists, on the other hand, focus on efficiency and, in many cases, that means maximizing outputs while minimizing costs.”34

Allocative Efficiency

While the technical approach to efficiency dominates the literature, its inadequacies have led to the development of different approaches to efficiency. One such approach is allocative efficiency. Unlike technical efficiency which refers to the optimum use of available resources, allocative efficiency is concerned with the use of resources “where they are of highest value to society.”35

According to Fix:

“Economic rationality is not, and should not necessarily be, the prevalent value or the overriding con- cern in the context of legal decision-making. On the contrary, economic rationality is subject to all kinds of constraints deriving from the legal tradition, the political environment, even the social climate. Its influence is less the result of its supposed intrinsic dom- inance and more of an outcome of local conditions

34 Fix-Fierro, H. (2004) Courts, Justice and Efficiency. Oxford: Hart Publishing. 35 Supra note 25

and concrete negotiations with other values and interests. Therefore, its place and relevance will vary greatly across legal contexts”.36

Using an allocative efficient model, courts are deemed efficient when their output best maximizes outcomes for all of society.

Towards an “Access to Justice” Conceptualization of Efficiency

Since the court system is the primary arbiter of justice, the conceptions of court efficiency that are most useful for this study are those that have an access-to-justice referent. Indis- putably, temporal and economic wastefulness of courts constitute a nuisance to the access of justice. Temporally speak- ing, the general principle of “justice delayed is justice denied” is particularly relevant in the context of developing econo- mies undergoing rapid change and expansion. In such an economy, delayed recompense in the changed socio-political or economic context that might exist once a judgment is finally given, may render the remedy essentially meaningless. For detainees, delayed justice also comes with the exposure to the adverse conditions in Zambian prisons. Given that the delay of justice is also explicitly outlawed in the Zambian constitution, such delay is also unconstitutional.

Court inefficiency has been shown to discourage entrepre- neurs and investors and stagnate economic growth37, therefore, inefficient courts deny citizens the improved life that

36 Supra note 34 at p.235 37 Amirapu, A. (2017) Justice delayed is growth denied: The Effect of Slow Courts on Relationship-Specific Industries in India. School of Economics Discussion Papers, University of Kent.

presumably should accompany a thriving economy. Litigants in delayed cases are also unable to fully participate in the ongoing economic dynamism, as they remain spatially constrained, by the obligation to attend regular court hearings. Additionally, their employment prospects are often jeopard- ized by the frequent absences they must take to attend such hearings. In a case observed during this study, a Zambian litigant had been left indigent for two years while waiting on adjudication in a case involving her entire livelihood. By ex- tracting money from the already needy, an inefficient court system compounds the type of extreme poverty which occurs characteristically in urban centers of newly industrializing countries. Temporally inefficient courts also enable the polit- icization of justice and corruption, since a sluggish court system can allow guilty actors to capitalize on intentional delay within a broader inefficient system. The conceptualization of court efficiency within an access to justice framework is thus the core approach of this study. An access to justice approach goes beyond technical definitions of court efficiency and takes into account factors that are relevant for the question of the justice output. There are many human costs that come with long delays. These costs are particularly exigent in systems that are so slow and overwhelmed that they are near breakdown.

That being said, the study does not reject the principle of technical efficiency in its totality. However, the measurement of speediness is tempered with considerations of access. This means that quantitative measurements of technical efficiency are understood in light of qualitative observations of 1.) the ability of those with legal needs to access the courts 2.) the quality of service that litigants receive once they access the courts. Indeed, litigants do not typically value efficiency in isolation, but rather in the context of effectiveness.

THE LEGAL FRAMEWORK

Zambia has a pluralist legal system.38 Hooker defines legal pluralism as “circumstances in the contemporary world which have resulted from the transfer of whole legal systems across cultural boundaries”.39 Commonly existing within countries that were former colonies, the development of these pluralist systems intended to provide a hybrid framework where colonial law managed some matters while others were settled by local forms of dispute resolution.40

Zambia’s current legal framework has roots both in the Eng- lish common law and indigenous customary law. As Wood- man describes, the laws observed in the formalised institutions of Zambia are originally based on the legal institutions of Britain while also giving recognition to customary law. 41As such the Constitution of Zambia (Amendment) 2016 states that the Laws of Zambia consist of:

The Constitution

Laws enacted by Parliament Statutory instruments

38 Ige, R. (2015) Legal Pluralism in Africa: Challenges, Conflicts and Adaptation in a Global Village. Journal of Law, Policy and Globalization. (34). pp.59. 39 Hooker, M. (1975) An Introduction to colonial and neo-colonial laws. Oxford: Clarendon Press. p.1 40 Supra note 38 41 Woodman, G. (2011) Legal pluralism in Africa: the implications of state recognition of customary laws illustrated from the field of land law. Acta Juridica. 35.

Zambian customary law that is consistent with the Con- stitution

The laws and statutes, which apply or extend to Zambia, as prescribed42

Customary Law

Customary laws are in the main, unwritten, and as such the phrase ‘customary law’ does not refer to a single system but instead a set of rights, liabilities and duties across diverse eth- nic groups.43 Despite having undergone considerable change in the last century, likely due to increased proximity of state law and institutions, customary law, in its living and authentic form, is not a creation of the state.44 In the main, customary law in Zambia tends to be administered by traditional author- ities and local courts, although higher courts can and do administer it.45

42 Constitution of Zambia (Amendment) (2016) Chapter No 2 of 2016 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/system/files/legislation/act/2016/2/Constitu- tion%20of%20Zambia%20%20%28Amendmen t%29%2C%202016-Act%20No.%202_0.pdf [Accessed October 2018]. Section 7. 43 Institute for Security Studies (2009) The Criminal Justice Sys- tem in Zambia: Enhancing the Delivery of Security in Africa. Available from: https://issafrica.org/chapter-6-customary-justice. [Accessed October 2018]. 44Supra note 41.

45 Purdy, R. (1984) Chapter 3. The Zambian Judicial System: A Review of the Jurisdictional Law. In Ndulo, M. (ed)., Law in Zambia. Lusaka, East Africa Publishing House. pp. 67-90. Avail- able from: http://saipar.org/wp-content/uploads/2013/10/CHP_03_Law_in_Zambia.pdf [Accessed October 2018].

Common Law

As applied within multiple current and former British colonies across several continents, the common law system follows the doctrine of precedent. Within this system, judges are bound for the most part, by decisions and doctrines developed over time by judges in earlier and more superior courts. As such, judges determine the answers to legal questions through a review of previous judicial decisions and accordingly use analogical reasoning in the case before them.46 This process involves the retention of some facts and the dismissal of others depending on their relevance.47 Zambia’s common law is administered in the Subordinate and Superior courts.

Court System and Structure

The court system in Zambia approximately forms a four-tier hierarchy, consisting of first instance courts, specialized and fast-track courts, appellate courts and the highest instance courts (see figure 1).

46 Church, W. (1974) Chapter 1. The Common Law and Zam- bia. In: Ndulo, M. (ed.), Law in Zambia. Lusaka, East Africa Publishing House. pp. 1-46. Available from: http://saipar.org/wp-content/uploads/2013/10/CHP_01_Law_in_Zam- bia.pdf 47 Id

Constitutional Court Court

Court of Appeals

Fam:ty and Chiklren General

High Court

Gender Based Violence Court Subordinate Courts Small Claims Court Land Tribunal (Fast Track)

Local Courts (Informal and Formal)

Figure 1: Court Structure in Zambia

A number of Acts of Parliament as well as the Constitution of Zambia provide for the establishment of these courts and Clause 119 (2) of the Constitution outlines the following judicial functions to be performed by them:

(a) To hear civil and criminal matters; and

(b) To hear matters relating to, and in respect of, the Constitution

Each of the following sections outlines the courts within each tier and summaries their original and appellant jurisdiction as applicable.

First Instance Courts

Local Courts

Local Courts are established by the Local Courts Act of 1966.48 The Act explains the territorial limits and grading system (A or B) of the courts which then dictates their jurisdiction. It also details the instances in which a Local Court must refer to a higher court. Local Courts mainly administer customary law but also have authority to administer some written laws, which are detailed in the Schedule of The Local Courts Act, again with some exceptions.

Subordinate Courts Subordinate Courts are the courts of first instance outside of the customary law system and the details of their jurisdiction are specified in the Subordinate Courts Act of 1933.49 There are three classes of court, each with its own general and territorial civil and criminal jurisdiction. As courts of first instance they decide all matters except for the offences of treason, mur- der, aggravated robbery, election petitions and all matters that involve the interpretation of the Constitution. Subordinate Courts have appellate jurisdiction from the Local Courts but can also order that proceedings are transferred to a Local Court if they have the appropriate jurisdiction.

Appellate Courts

48 The Local Courts Act. (1994) Chapter No 13 of 1994 of the Laws of Zambia. ZAM. Available from: http://www.parliament.gov.zm/sites/default/files/documents/acts/Local%20Courts%20Act.pdf [Accessed Octo- ber 2018]. 49 The Subordinate Courts Act (1936) Chapter 28 of the Laws of Zambia. ZAM. Available from: http://www.parliament.gov.zm/sites/default/files/documents/acts/Subordi- nate%20Courts%20Act.pdf [Accessed October 2018].

The High Court

The High Court is provided for in article 94 of the Constitu- tion and the High Court Act of 1960 as amended by the High Court (Amendment) Act of 2016.50 Article 133 of the High Court (Amendment) Act details its unlimited and original jurisdiction in civil and criminal matters, appellate and supervi- sory jurisdiction and its jurisdiction to review decisions.

The High Court (Amendment) Act, 2016 also provides for multiple sub-divisions of the High Court as follows:

a) Industrial Relations Court

b) Commercial Court

c) Family Court

d) Children’s Court

e) Any such other specialised court as the Chief Justice may prescribe by statutory instrument.

These sub-divisions exist as specialized courts in their particular field and gain their jurisdiction from the Chief Justice via statutory instrument.

50 Hight Court Act (1960) Chapter 27 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/zm/legislation/consol- idated_act/27 [Accessed October 2018] and High Court (Amend- ment) Act (2002) Chapter No 16 of 2002 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/system/files/legislation/act/2002/16/hca2002201.pdf [Accessed October 2018].

The Court of Appeal

The Court of Appeal, as determined by Article 130 and 131 of the Constitution and the Court of Appeal Act 2016,51 has jurisdiction to hear appeals from judgments of the High Court, other courts (except for matters under the exclusive jurisdiction of the Constitutional Court) and quasi-judicial bodies, except those of a local government elections tribunal.

Highest Instance Courts

Supreme Court

The Supreme Court as outlined in article 92 of the Constitu- tion and the Supreme Court Act, 1973,52 is the final court of appeal and has appellate jurisdiction to hear civil and criminal appeals from the Court of Appeal as well as jurisdiction con- ferred on it by the Constitution and other pieces of legislation.

Constitutional Court

51 The Court of Appeal Act (2016) Chapter No 7 of 2016 of the Laws of Zambia. ZAM Available from: https://zambialii.org/zm/legislation/act/7-14 [Accessed October 2018]. 52 The Supreme Court of Zambia Act (1973) Chapter 25 of the Laws of Zambia. ZAM. Available from: http://www.parliament.gov.zm/sites/default/files/documents/acts/Su- preme%20Court%20of%20Zambia%20Act. pdf [Accessed Octo- ber 2018].

The Constitutional Court, as detailed in clause 127 of the Constitution of Zambia and the

Constitutional Court Act of 2016 has original and final jurisdiction to hear the following: a) A matter relating to the interpretation of the Consti- tution;

b) A matter relating to a violation or contravention of the Constitution;

c) A matter relating to the President, Vice-President or an election of a President;

d) Appeals relating to election of Members of Parlia- ment and councillors; and

e) Whether or not a matter falls within the jurisdiction of the Constitutional Court.

The Constitution goes on to explain that where a question relating to the Constitution arises in a court, the person presid- ing in that court shall refer the question to the Constitutional Court.53 It states further that a person who alleges that one of the following contravenes the Constitution, may petition the Constitutional Court for a remedy:

a) An Act of Parliament or statutory instrument;

53 Constitution of Zambia (Amendment) (2016) Chapter No 2 of 2016 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/system/files/legislation/act/2016/2/Constitu- tion%20of%20Zambia%20%20%28Amendmen t%29%2C%202016-Act%20No.%202_0.pdf [Accessed October 2018]. Section 128 (2).

b) An action, measure or decision taken under law; or

c) An act, omission, measure or decision by a person or an authority54

While the Constitutional Court and the Supreme Court rank equivalently55, a decision of the Constitutional Court is not appealable to the Supreme Court.

Specialized/Fast Track Courts

The Land Tribunal The Land Tribunal was initially created via the Lands Act of 199556 but is also provided for in the Lands Tribunal Act of 201057 as a specialised court to administer disputes pertaining to land. It hears disputes under a number of statutes as well as disputes arising under customary land tenure. Any appeals from this court are to go to the High Court.

Local Government Elections Tribunal

54 Id at Section 128 (3). 55 Id at Section 171. 56 The Lands Act (1995) Chapter No 29 of 1995 of the Laws of Zambia. ZAM. Available from: http://www.parliament.gov.zm/sites/default/files/documents/acts/Lands%20Act.pdf [Accessed October 2018]. 57 Lands Tribunal Act (2010) Chapter No 39 of 2010 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/zm/legislation/act/39 [Accessed October 2018].

As per the Local Government Elections Tribunal Rules of 2016,58 this tribunal has the power to hear a petition regarding a local government election within the province in which the tribunal is constituted. It hears and determines whether a person has been validly nominated as a candidate for election as a councillor. An appeal of a decision from the tribunal can be lodged with the Constitutional Court within 14 days of the decision from the tribunal.

The Revenue Appeals Tribunal

The Revenue Appeals Tribunal (RAT) is established by the Revenue Appeals Tribunal Act of 1998.59 The purpose of the RAT is to hear and determine appeals under the Customs and Excise Act in a variety of circumstances outlined in the Act. The Act stipulates provisions relating to customs, excise and other duties, licencing and control of warehouses for the man- ufacture of goods as well as regulations concerning imports and exports. Parties who wish to do so may appeal a decision of this tribunal to the High Court. The Small Claims Court

The Small Claims Court, as outlined in the Small Claims Courts Act,60 has the jurisdiction to administer claims of not more than four thousand fee units. The Court is established in

58 Local Government Election (Repeal) (2016) Chapter No 20 of 2016 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/zm/legislation/act/20-6 [Accessed October 2018]. 59 Revenue Appeals Tribunal Act (1998) Chapter No 11 of 1998 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/zm/legislation/act/11-5 [Accessed October 2018]. 60 Small Claims Court Act (1992) Chapter 47 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/zm/legislation/consoli- dated_act/47 [Accessed October 2018].

a location that the Chief Justice considers necessary consid- ering the needs of the surrounding area. In 2009, the Small Claims Court of Lusaka became operational with the then Chief Justice Ernest Sakala swearing in 12 adjudicators. Ap- peals on points of law can be made from the Small Claims Court to the High Court.

The Gender Based Violence (GBV) Fast Track Court

The GBV Fast Track Court was constituted as per Article 133 of the Constitution of Zambia, which empowers the Chief Jus- tice to constitute specialist courts of the High Court by statutory instrument. In 2016 Chief Justice Irene Mambilima established the court as part of a partnership between the Gov- ernment of Zambia and the UN Joint Team on Gender Based Violence. The right of appeal from the GBV Fast Track Court is to the High Court.

Legal Framework, Court Structure and Delay

Clause 118 of the Constitution states that the courts shall be guided by a number of principles, including the principle that ‘justice shall not be delayed’.61 The High Court Act also provides for situations in which cases can be adjourned but states that a postponement must not be made ‘for the purposes of mere delay’.62 However, a critical examination of the legal framework and court structure exposes elements that may impact on delay. For example, there is no mechanism to control, manage and monitor complex litigation. This is despite the

61 Supra note 53. Section 118. 62 Hight Court Act (1960) Chapter 27 of the Laws of Zambia. ZAM. Availa- ble from: https://zambialii.org/zm/legislation/consolidated_act/27 [Accessed October 2018]. ORDER XXXIII, 1.

fact that the Chief Justice is empowered to create procedures that take complexity into account and could require that a registrar deal with simple cases in lieu of judges. In the High Court rules Section 7(1), Registrars and Deputy Registrars have the jurisdiction, powers and duties as the Chief Justice may prescribe. Additionally, section 20(2) allows the Chief Justice to direct that any criminal matter arising out of proceedings in subordinate courts be heard in any court with a resident judge in circumstances where ‘it appears to the Chief Justice that it is expedient’.63

Zambian courts are ‘courts of record’. However, while the court registrar has been computerised,64 judges still frequency take notes by hand and few staff have the necessary computer literacy to maintain and update the records, resulting in delays.65 Issues with administrative infrastructure are noticeable and lost files and problems with case management compound delays. This is particularly problematic due to the divided re- sponsibility of sentencing between the Subordinate Courts and High Courts, which has itself been criticised; the transfer of cases for sentencing between the two is said to be out-dated and an “unnecessary drain on the resources of the judiciary”.66 Moving to substantive law, The Criminal Procedure Code Act has 88 chapters and over 350 sections and although it is acknowledged that the utility of a set of codes is the inclusion

63 Id. Part V; Section 20 (2). 64 High Court (Amendment) Act (2002) Chapter No 16 of 2002 of the Laws of Zambia. ZAM. Available from: https://zambialii.org/system/files/legislation/act/2002/16/hca2002201.pdf [Ac- cessed October 2018]. Order LIV; Section 3 (1) which states that ‘Where a matter requires the filing of a document, that document may be filed electronically’. 65 Young, A. (2000) Alternative Dispute Resolution and Its Place in the Zambian Judicial System. Zambia Law Journal. 32. pp. 73-75. 66 Kerrigan, F., Matakala, L., Mwenya, W., Dinda, C. & Moller, M. (2012) Access to Justice in the Republic of Zambia. A Situation Analysis. The Danish Institute for Human Rights. p.17

of everything relevant to the decision,67 it is also true that the dispensation of justice is affected by adjudication slowed down by lengthy, complex rules.

Outside of the Zambian legal system there has been general- ised criticism of the rules of court across common law systems, specifically in relation to their complexity and the fact that there are often separate regimes of rules for each level of the court hierarchy.68 Zambia is no different and in the case of the High Court in particular, there are over 100 rules of court. Furthermore, there has also been recognition of the in- consistency in the number of judges hearing a case at the High Court. In some instances, cases have been heard by three judges and in others heard by just one, though there has never been an explanation or rationalisation of this.69 Relatedly, the lack of an objective system for allocating cases to judges en- courages ‘judge shopping’ and the perception of corruption.70

Zambia’s hierarchical court system gives rise to several stages at which parties can appeal. Some scholars have noted that this hierarchical normative standard may no longer be the most appropriate,71 particularly if it causes avoidable delay. The delay for purposes of appeal has caused notable de- ferment in the following Zambian cases. For example in

67 Robinson, P., Greene, P. & Goldstein, N. (1996) Making Criminal Codes Functional: A Code of Conduct and a Code of Adjudication. Journal of Criminal Law and Criminology. 86 (2), Article 3. p321. 68 Pinsler, J. (1996) The Rules of Court. Singapore Journal of Le- gal Studies. pp. 279-311. 69 Supra note 7. 70 Id. at p.2 71 Lierman, S. (2014) Law as a Complex Adaptive System: The importance of Convergence in a Multi-Layered Legal Order. Maastrict Journal of European and Comparative Law. 21(4). pp. 612

Bwalya vs the People, the defendant had already served five years in prison by the time the appeal reached the Supreme Court. 72 A retrial was not ordered due to the defendant having already served most of the potential sentence. In the case of Maketo v the People, the court considered the option of increasing the sentence but chose not to because of the delay that had occurred before the appeal was heard.73

SIGNIFICANCE OF PROJECT

Access to justice is not a standalone right; it is an essential prerequisite for the protection and promotion of many other civil, political, cultural, economic and social rights. Access to the courts promotes stability and political liberalization, allowing every segment of the population the opportunity to seek redress under the law. This is especially important for vulnerable groups that should be able to rely on the justice system to protect and enforce their rights.

Facilitating access to justice requires that national courts perform in an efficient and effective manner. However, there are currently no scientific studies on court performance in Zam- bia. Therefore, this study, while only a first step, is hugely significant. Moreover, this study goes beyond mere data collection and statistical analysis, seeking also to explain some of the root causes of the inefficiency. It is hoped that the study can provide a frame of reference for policy makers as well as

72 Bwalya v People (S.C.Z. Judgment No. 6 of 1979) [1980] ZMSC 2 (22 January 1980). Available from: https://zambialii.org/zm/judgment/supreme-court/1980/2 [Accessed October 2018]. 73 Maketo and Others v People (S.C.Z. Judgment No. 5 of 1979) [1979] ZMSC 5 (15 January 1979) Available from: https://zambialii.org/zm/judgment/supreme-court/1979/5 [Accessed Octo- ber 2018].

provide a firm basis for the commissioning of further research. Since the lack of data on court efficiency is a continental problem, it is also hoped that this study can also serve as a useful blueprint for African jurisdictions that face similar problems.

2. MEASURING EFFICIENCY: INTERNA- TIONAL, REGIONAL AND NATIONAL AP- PROACHES

This section of the report provides an overview of international, regional and national approaches to court efficiency measurement.

INTERNATIONAL STUDIES

The international studies reviewed can be classified as either cross-country or country-specific. Cross-country court efficiency studies seek to compare the judicial systems of multiple countries around the world. Country-specific court efficiency studies on the other hand, seek to examine a single judicial system. Both classifications tend to deploy quantitative methodologies. The main methodologies used in these studies are enumerated below.

Regression analysis

Regression analysis is a statistical technique used to estimate relationships between different categories of observed data.74

74Economides, K., Haug, A. & McIntyre, J (2013) Are courts slow? Exposing and Measuring the Invisible Determinants of Case Disposition Time. Economics Discussion Papers, University of Ontago; Djankov, S., Hart, O., McLiesh, C. & Scleifer, A.

The analysis relates one variable (dependent) to one or more variables (independent) with the aim of understanding the causal effect of independent variable(s) on the dependent variable. In the context of court efficiency, regressions relate cases disposed per year and/or case disposition time to variables such as the number of judges, caseload, availability of court rooms, allocation of judicial resources, court infrastructure, nature of the case, judicial transfers, and environmental factors (e.g. cost of a lawyer, illness, etc.).

As to the pros and cons of regression analysis vis-a-vis other quantitative approaches, regression analysis requires a greater number of data points in order to produce an accurate estimation of effect. To this end, regressions are normally deployed within cross-country studies of court efficiency, in which data may be gathered from the various courts of multiple countries. Country-specific studies are often not suitable to regression analysis due to the small number of courts under examination. A major advantage of this large sample size, however, is that regression analysis remains directly tied to observed data. The other quantitative methods explained below often rely on assumptions and mathematical algorithms that are independent from the characteristics of the courts under review.

Data Envelopment Analysis (DEA)

(2008) Debt enforcement around the world. University of Chi- cago. Journal of Political Economy. 116 (6). Available from: http://www.nber.org/papers/w12807.pdf [Accessed October 2018]; and OECD (2013) What makes civil justice effective? OECD Economics Department Policy Notes, No.

The DEA method applies mathematical programming techniques to compare the efficiency of a set of [DMUs].75 Fur- thermore, “[DEA] provides very detailed information about the analyzed DMUs, providing individual efficiency scores for each DMU, peer groups and production and consumption objectives for those that are inefficient”.76 For our purposes, a DMU would refer to an individual court, the output would refer to resolved cases, and inputs would refer to caseload, number of judges, judicial resources, etc. DEA is useful because it may rank both the relative nature and magnitude of each court’s efficiency/inefficiency.

DEA has been criticized for two reasons. First, questions of accuracy arise. One may say that the model of determining courts’ maximal efficiencies from peer groups of other courts is not necessarily correct. Second, questions of explanation arise from interdisciplinary studies. DEA is unable to differ- entiate between inefficiency that arises from factors within contingent control (for example the actual productivity of judges and/or return on resources invested into the judiciary) and the inefficiency that arises from background factors that are more difficult to address (for example the inherent complexity of the cases). Rather, DEA uniformly attributes devi-

75Pedraja-Chaparro, F. & Salinas Jimenez (1996) An assessment of the efficiency of Spanish Courts using DEA. Taylor & Francis Online. 28(11). pp. 1391-1401; Nissi, E. & Rapposelli, A. (2010) A data envelopment analysis of Italian courts efficiency. Statistica Ap- plicata- Italian Journal of applied Statistics. 22(2); Guzowska, M. & Strak, T. (2010) DEA method in examining the efficiency of Polish courts. Transformations in business & economics. 9(1). pp. 1-12. 76Parodi, G. & Sciulli, D (2011) Social Exclusion: Short and Long Term Causes and Consequences. Springer Science & Business Media. p.98

ation from the calculated frontier to the umbrella term of “inefficiency”. Failing to properly identify the specific source of inefficiency impedes the identification of effective remedies.

Two Stage DEA exists as a remedy to the latter problem.77 It takes the efficiency scores found in the initial stage of DEA and then regresses them in a number of explanatory factors. This is helpful in that it attributes specific correlative effect to factors that are within a decision-making unit’s control.

Free Disposal Hull (DH)

FDH is often lumped together with DEA in the literature.78 Given that the two methods are both non-parametric in nature, they only differ in the inner-workings of their algorithms. Be- yond a theoretical, mathematical debate, there exists no cost- benefit difference in adopting one over the other for measuring technical efficiency. More specifically in court efficiency studies, the DEA method calculates the production possibilities frontier of efficiency to be a smooth, convex curve. The FDH method, on the other hand, calculates this frontier to be a series of step-wise functions. Subsequent comparison with observed data from sets of courts may yield different results on how efficient each court is, depending on which method is used.

77 St Aubyn, M. (2008) Law and Order Efficiency Measurement - A Literature Review. School of Economics and Management, Technical University of Lisbon. Available from: http://pascal.iseg.utl.pt/~depeco/wp/wp192008.pdf [Accessed October 2018]; Castro, F. & Guccio, C. (2014) Searching for the source of technical inefficiency in Italian judicial districts: an empirical investigation. European Journal of Law and Economics. 38 (3), pp. 369-391. 78 Supre note 19.

Stochastic Frontier Analysis (SFA)

Stochastic Frontier Analysis differs from the above measurement methods in that certain pre-established conditions regarding the state of courts are factored into a mathematical algorithm to determine where the production possibilities frontier of efficiency lies.79 Under these circumstances, the efficiency of a court is not measured relative to that of other courts in the observation set, but rather to a series of objective evaluations pre-factored into the algorithm.

The specific algorithm of SFA holds a major benefit in that it accounts for a certain degree of randomness, otherwise known as “stochastic shocks”, inherent to the performance of each court. Therefore, the difference between a court’s observed performance and the production possibilities frontier is only partially attributed to identified factors relevant to efficiency, with the remainder attributed to random events outside of contingent control. This provides a more realistic picture of technical court efficiency. On the other hand, however, SFA is rather design intensive in constructing a proper model. Converting evaluations of the state of the courts to a proper production possibilities frontier via mathematical algorithm requires substantial quantitative work. As

79Espasa, M. & Esteller-More, A. (2015) Analyzing Judicial Courts’ Performance: Inefficiency vs. Congestion. Revista Economia Aplicada. 69. pp. 61-82; Antonuccia, L., Crocetta, C. & d’Ovidio, F. (2014) Evaluation of Italian Judicial System. Journal of Procedia Economics and Finance. 17, pp.121-130; Beldowski, J., Dabros, L & Wojciechowski, W. (2016) Efficiency of commercial courts in Poland - stochastic frontier analysis approach. University of Mont- pellier, France.

a result, SFA is often simplified to only consider the relationship between one input factor of the court and one output factor. This limits a multi-dimensional analysis in examining how multiple inputs of the court interact to enhance or impede efficiency.

Survey Methods

Most methodologies in the reviewed international studies were quantitative. However, a few qualitative studies that use the survey method were found. Surveys are both useful in constructing data sets (e.g., the creation of indices for court performance) and in producing conclusions on their own (e.g., opinion polls). The information produced from surveys can be either subjective (e.g., an expert’s opinion on how fast a court produces a decision) or objective (e.g., a ministry’s report on how many days it takes for a court to resolve a case).

One major example of the survey method is The International Framework for Court Excellence (IFCE).80 IFCE is a quality management system designed to help courts improve their performance. With this method, court performance values can be computed as an aggregate of various performance measures of court processes. These performance measures, in turn, are compatible with a broad definition of efficiency. This stems from the fact that efficiency can either be technical, allocative, productive, etc. Narrower definitions of efficiency may also be fulfilled by examining subsets of the performance measures used. In total, the 11 performance measures of court processes in the IFCE are as follows: Court

80 Hall, D. & Keilitz, I. (2012) Global measures of court performance. International Framework for Court Excellence. Available from: http://www.courtexcellence.com/~/media/Micro- sites/Files/ICCE/Global%20Measures_V3_11_2012.ashx [Ac- cessed October 2018]; Comptroller and Auditor General (2016) Efficiency in the Criminal Justice System: England and Wales. Na- tional Audit Office

User Satisfaction, Access Fees, Case Clearance Rate, On- Time Case Processing, Pre-Trial Custody, Court File Integ- rity, Case Backlog, Trial Date Certainty, Employee Engage- ment, Compliance with Court Orders, and Cost Per Case.

Therefore, by comparing the computed values to the universal set values or even relaxing it to the context of the study (i.e. basing values of the studies assumptions), one can determine efficiency if computed values are below universal/context value (i.e. inefficiency) and universal/context value (i.e. efficiency).

REGIONAL STUDIES

There is an observable lack of court efficiency studies in the Sub-Saharan Region.81 This study identified two – Nigeria and Kenya.

Nigeria

A 2010 study used the non-participant observer method to understand the efficiency of the Brass High Court in Bayelsa State, Nigeria.82 Although the study was able to identify several reasons for inefficiency using the stated method, it also found that the supplementary methods of documentary observations and informal interviews were necessary to produce comprehensive results. To wit, “one weakness attached to this mode of research is the limitation of access to what can be fully observed, since [the] non-participant observer…ob- serves only those activities he has opportunity to

81Supra note 25 82Cocodia, J (2010) Identifying causes for congestion in Nigeria’s courts via non-participant observation: a case study of brass high court, Balyesa state, Nigeria. International Journal of Politics and Good Governance. 1 (1.1).

watch…therefore, documentary observations as well as informal interviews were used.”83

Kenya

A Kenyan court efficiency study performed by Odhimabo in 2016 used the FDH method to determine the technical efficiency of the Kenyan Courts.84

NATIONAL STUDIES

Court Efficiency has not been comprehensively measured in Zambia. Two Studies, the first from the Fifth National Devel- opment Plan Mid-term Progress Report and the second from the World Bank are enumerated below. The remaining studies are anecdotal.

The Fifth National Development Plan (FNDP) Mid-Term Progress report.

The Fifth National Development Plan (FNDP) Mid-Term Progress of 2009 report deploys a survey method, similar to that of the International Framework of Court Excellence (IFCE) described above. It identifies a series of Key Perfor- mance Indicators (KPIs) – average time taken to dispose of cases, backlog of cases, and remand/convict ratio – and com- pares data collected from every level of Zambian court with a series of designated targets across the years of 2006-2008.

The FNDP Report attempts to estimate the disposal times of various courts in Zambia but has several deficiencies. First,

83Id. at p.3 84Supra note 19

the data collection process of surveying the Ministry of Jus- tice to provide estimations of outcomes for each of the KPIs is highly discretionary and unscientific; data did not come from actual observations but was instead synthetically manu- factured as a part of an undocumented estimation process. Second, the designation of targets are arbitrary and inconsistent. The lack of written justification for how the listed targets were arrived at undermines their ability to serve as standards of efficiency.

The World Bank

The World Bank as part of its 2017 Doing Business Report measured the performance of the Commercial Court of Zam- bia. Data was collected through a review of civil procedure and regulations, questionnaires, and miscellaneous reports released by the government and private businesses. The study used the following indicators to rank commercial courts globally; time, cost, court structure and proceedings, case management, court automation, and alternative dispute resolution. The Zambian Commercial Court ranked 85. The average time per court case (from filing to execution) was calculated at 611 days while the average cost per court case was estimated at 38.7% of claim value.

Other Studies

Several other national studies have commented on court efficiency anecdotally, with the general consensus being that the Zambian courts are inefficient.

A 2009 study identified three major factors that affect efficiency in Zambia. First, it found that “inadequate resources for the judiciary impede recruitment of highly qualified judges and staff, increase vulnerabilities to corruption, and in- hibits the development of training, research, and management

systems.”85 Second, the study found that “both civil and criminal cases incur unreasonable delays due to complex procedures, lax case management, lack of performance management, absence of recording equipment to create court records, and judicial vacancies”.86 Lastly, the study addressed the backlog created by the sheer number of appellate cases, to wit, “the high percentage of cases that are appealed…have resulted in overwhelming congestion, delaying unreasonably the finality of judgments, including execution measures to give them practical effect.”87 Backlog is an indicator of both a breakdown in the intended process of decision-making for ongoing cases as well as an increase in expected delay for cases filed in the future.

More recent studies point to an additional impediment to court efficiency: the inaccessibility of legal information. A 2015 study writes, “among the representatives of civil society or- ganizations that we interviewed, many expressed difficulties accessing legal information through government agencies. Although these agencies were instituted to ensure public access to legal information, many actors described barriers to accessibility”.88 Additionally, the study found inaccessibility of information to be a problem for more than just civil society, writing, “[a] lawyer close to the ZambiaLII project explained that the KAS law compilation of the laws, statutory instruments, and court judgments of Zambia is the most used legal resource for lawyers, though the only reliable consolidated version is from 1996. The subsequent 2006 update is so full of grammatical errors that it has not been endorsed by the Zambian government.”89 In this context, inaccessibility of the

85Supra note 9 at p.v 86 Id. 87 Id. at p.7 88 Masson, M. & Tahir, T. (2015) The legal Information Needs of Civil Society Zambia. Southern African Institute for Policy and Research. p. 17. 89 Id at p. 25

law also means that lawyers, paralegals, and court workers alike are unable to perform their functions to the highest possible standard. The decline of efficiency in the court system is only a natural consequence of this inaccessibility.

Court efficiency has also been brought up as a corollary issue in broader studies on access-to-justice. Kerrigan et al con- ducted a systematic study of access to justice in Zambia that deployed a field survey, document review, and a series of stakeholder workshops.90 Expert opinions on efficiency ac- companied broader concerns with access-to-justice in Zam- bia. Likewise, Shezong et al examined the justice sector and the strength of the rule of law in Zambia.91 It concluded that efficiency is integral to the rule of law.

3. METHODOLOGY

Methodological triangulation involves using more than one method to collect data on the same phenomenon. Triangula- tion is particularly useful where the results of one method are inconclusive or incomplete. In this study, while we seek to understand the degree to which the Zambian court system runs efficiently, we also seek to understand the factors that impact efficiency. To achieve both ends, triangulation is necessary. While the calculation of disposition times gives us important information about how long cases take, they tell us nothing about the reasons for those disposition times, or indeed, whether those disposition times are efficient or not. Without the necessary context, disposition times are not necessarily useful. The converse is also true, without the availability of concrete disposition times, the discourse around

90 Supra note 66. 91Shezongo-Macmillian, J. (2013) Zambia: Justice Sector and the Rule of Law. Open Society Initiative for Southern Africa.

court efficiency becomes largely anecdotal. The cross-verifi- cation of results that triangulation yields is also useful for study like this one where some data sets are limited.

The study uses both quantitative and qualitative methods to understand efficiency in the Zambian courts. Each method is outlined in detail below.

QUANTITATIVE

The study found that many of the quantitative methods commonly used to study efficiency (DEA and FDH for example) are not suitable in the Zambian context. This is because the pre-requisites of a large sample size and coverage of multiple courts within the judicial system cannot be met when data is either inaccessible or cannot be collected at the same time. Data gathering techniques and open access laws in Zambia are in their preliminary stages of development and require significant improvement before this challenge can be overcome. Indeed, before 2010, judicial decisions were, in the main, not even in the public domain. Although significant gaps remain, the advent of the Zambia Legal Information Institute and the modernization of the judiciary have improved access to judicial decisions. As a result, the quantitative portion of the project does not draw conclusions about the whole of the judiciary; only on those within its limited area of examination. Not- withstanding these limitations, the project was still able to ex- tract quantitative data from the two functioning divisions of the High Court – the High Court General Registry and the Commercial Court.

Data Collection

To gather the data set, the study performed a comprehensive search for high court judicial decisions delivered between the years 2011 and 2017 from the following sources:

The IT department of the Zambian judiciary o The Judiciary’s IT department collects and stores electronic copies of judicial decisions. These decisions are sent to the department by court registries. Because the High Court registries are not centralized (each court has its own registry), the IT department is dependent on each registry to send copies of their decisions. As a result, there is a significant gap between the number of decisions received by the department and the number of decisions delivered.

The Zambia Legal Information Institute

o The Zambian Legal Information Institute (ZambiaLII) is the only database of judicial decisions in the country. It collects its cases from the Zambian judiciary website, the IT department of the Zambian judiciary, and the Zambian Law Reporting Commission.

The Council of Law Reporting

o The Council of Law Reporting receives decisions from individual judges that wish to have their judgments considered for inclusion in the Zambian Law Reports.

Taken together, these three sources host all the judicial decisions in the public domain in Zambia.

Sorting

Once the decisions were compiled, the following decisions were excluded:

Criminal cases. Due to the inability to determine the start date from the judgment itself, it was not possible to calculate disposition times using the method employed here.

Election Petition cases. Due to the unique disposition time requirements that attach to election petitions, including them in the analysis would distort the data.

An extreme outlier. A decision commenced in 1977 and still ongoing was excluded from the data set.

Decisions without a delivery date.

Decisions without a signature or court stamp.

With the above decisions excluded, the sorting of the decisions began. Decisions were separated in the following ways;

Judgments were separated from rulings;92

High Court General Registry Judgments were separated from High Court Commercial Court Judg- ments; and93

92“Rulings” in the context of Zambian civil procedure refer to decisions on interlocutory matters that arise during the life cycle of a particular case. They are therefore not to be conflated with final judgments and must be analyzed separately. 93 The Commercial Court is a newly established specialized division of the High Court. Because the Commercial Court is designed to be faster than the general list

High Court General Registry Rulings were separated from High Court Commercial Court Rulings.

Analysis

Once the sorting process was completed, each decision was skimmed to determine whether the court, in its judgment or ruling, provided an exact date on which the action commenced. Where an exact date was not given for a ruling, it was excluded from the data set. Where an exact date was not given for a judgment, the year the action commenced, as determined by the filing number, and an estimate at July 1 (the year mid-point), was used as the start date. After this process, the following categories were compiled into spreadsheets for further analysis.

High Court General Registry Judgments – exact start date

High Court General Registry Judgments – estimated start date High Court General List Rulings – exact start date

Commercial Court Judgments – exact start date

Commercial Court Judgments – estimated start date Commercial court rulings – exact start date

Once in the spreadsheet, start dates (actual or estimated) and end dates were added to each decision, after which judgments had to be further categorized in a way would control for mode of commencement, and in the case of High Court General, complexity as well. Once this was done, the elapsed time between the actual or estimated time date and the end date was calculated.

Limitations

The limited data set described above is a significant limitation that doubtlessly affects the findings. Without a baseline figure for delivered decisions, it is impossible to estimate what percentage of delivered decisions the study was able to access. Second, the very real challenge of selection bias also likely distorts the data. Given that the judiciary decides which court cases to publish, it is certainly possible that certain decisions may have been purposefully withheld. Since judges self-se- lect what they deem to be their best decisions, selection bias is even more pertinent with decisions from the Council of Law Reporting and by extension ZambiaLII. It is therefore highly likely that selection bias creates a downward skew in the average length of disposition times.

QUALITATIVE

Qualitative methods for court efficiency measurements are a useful way to contextualize quantitative data, and in this case, the method also supplements the very limited quantitative data set.

Non-Participant Observer Method

The first qualitative method employed by this study was the direct observation of the Subordinate of Lusaka. This method gathers data by observing behavior, an environment, process or event.94 The observation employed was non-participant and undisclosed. The advantage of non-disclosed observation is that it avoids the Hawthorne effect, that is, the proclivity to modify behavior when being disclosed.

94Williams, J. (2008) Nonparticipant observation. ResearchGate. pp. 561-562.

Over the past 21 months, four trained field researchers have attended over 130 sessions of the Subordinate Court of Lu- saka, and have recorded their observations via the instrument shown as follows:

COURT EFFICIENCY PROJECT SUBORDINATE COURT OBSERVER CHECKLIST

Date: Courtroom No.: Magistrate: Civil/Criminal:

Matter (brief descrip- tion) Date of ar------rest/plea/writ/trial -- Mark YES OR NO and elaborate under “general observations” OBSERVATION YES NO POINT

1. Did the parties show up? 2. Did the magistrate show up? 3. Was the case adjourned? 4. If the cases was adjourned, was a date given? 5. Any other delays (apart from adjournment)?

6. Were interpreters used? 7. Was the case concluded? 8. Were the parties represented? 9. Was the matter handled expeditiously? 10. Did the court session start on time? 11. Was a specific time allocated to the case?

12. Was counsel available? 13. Was counsel on time? 14. Were the witnesses available? 15. Was the surety available? 16. Was the accused available? 17. Was the court audible?

18. What was the reaction of audience/ counsel/ litigant to the adjournment/ delays?

RECORD GENERAL OBSERVATIONS

Note: If case adjourned/delayed, list reasons here; give over- all impressions of efficiency of case/hearing. NB: Try to as- certain how long trial/case has been going on – e.g. date of arrest/plea/writ)

Figure 2: Observer Checklist Template

During the analysis of the 130 plus cases, common factors relevant to court efficiency were identified following a review of each checklist. These were then enumerated to serve as the categories under which cases would be classified. This provides a two-fold benefit: First, it allows for a pinpointing of specific causal factors of inefficiency within a wide array of issues. Second, the frequency of occurrences within cases in- dicates the relative causal strength of each factor. Persistent issues may then be extrapolated to help draw conclusions regarding the Subordinate Court writ large.

Limitations

An obvious limitation of the direct observation method is observer bias. There is always the inherent risk that observers may place disproportionate or unwarranted emphasis on specific aspects of the observation, to the exclusion of other relevant ones, or may interpret an occurrence/event in a predis- posed manner. Internal inconsistencies may then arise when processing the data. Nevertheless, the training of the field researchers and the use of a checklist mitigate this risk.

Additionally, due to the nature of the courtroom set up, researchers are not always able to observe or understand every

occurrence within a courtroom. While this limitation is inev- itable to some degree, a significant portion of cases within the project noted that court testimony and procedure were alto- gether inaudible to the researcher at some parts. However, this challenge is in some ways a finding because that inaudibility limits accurate observation, it is likely a contributing factor to inefficiency since the inaudibility is likely to affect participants as well.

Lastly, the project was limited by the availability of resources and labor. Given the lengthy duration of court sessions and the limited number of field researchers, it was impractical to extend the scope of observation beyond the Subordinate Court of Lusaka. It is likewise difficult to draw conclusions from this portion of the study and apply them to the entire judiciary without significant analytic speculation. As a consequence, it is possible that the experiences of other courts around the country may different from those recorded in Lusaka.

Content Analysis of Judicial Decisions

The second qualitative method used was a content analysis of the reasons judges give for delay in their judgments. Using this method, a set of judicial decisions was systematically read and consistent features, or codes, were recorded. These codes were used to arrange the content of the judicial decisions into categories that explain the cause of delay in each particular case. The use of this method allows inferences to be drawn about the use and meaning of particular arguments, statements and explanations.95 A hybrid approach to coding design was used, to include both pre-set and emerging codes.

95Hall, M. & Wright, R. (2008) Systematic Content Analysis of Judicial Opinions. California Law Review. 96(1). pp. 64. Avail- able from: http://scholarship.law.berkeley.edu/californialawre- view/vol96/iss1/2 [Accessed October 2018].

The pre-set codes derived from the research questions, literature review and the researchers’ prior knowledge of the subject area. Those that emerged were informed by the on-going analysis and coding. The final set of codes is one that has gone through a process of expansion and revision over the lifetime of the coding process. An advantage to this methodology is that judges typically comment on delay as a tangential matter. Therefore, their comments are in many cases are unscripted and uncensored and therefore more authentic, giving credibil- ity to the analysis and conclusions drawn from them.

Limitations

In selecting this methodology there is recognition of its limitations, for example, it may be true that those judges who are more efficient in their decisions are more likely to comment on delay within them. As such, the sample is potentially bi- ased to the affectations of those particular judges. Neverthe- less, it is unlikely that judges have a self-interested motivation to comment on delay and there is little to gain from dishon- esty. In addition, there is commonly an objective reason cited for the delay (evidenced by the record), yet it is important to consider the potential for the presence of subjectivity in their rationale. Another limitation is the likelihood of a court being objective about their own culpability. The limited references to court culpability in the findings must therefore be filtered in this light. As for party culpability, it should be remembered that parties are usually represented by lawyers; hence any blame attributed to parties is likely in many cases, shared by their legal representatives as well.

4. FINDINGS

QUANTITATIVE FINDINGS

1. High Court General

1.1. High Court General Judgments (Exact)

Mode of Commencement Duration in Classification Days Writ of Summons 1420 Standard Originating Summons 447 Standard Originating Notice of Mo- 389 Standard tion Petition 317 Standard Appeal 629 Standard

High Court General (Exact Disposition Time in Days)

1400

1200 1000 800 600 400 200 0 I I I I Writ of Summons Originating Originating Notice Petition Appeal Summons of Motion

Figure 3: High Court General Exact Disposition Times

The time difference between cases commenced by Writ of Summons and all other cases is statistically significant.

1.2. High Court General Judgments (Estimate)

Mode of Commencement Duration in Classification Days Writ of Summons 1037 Standard Originating Summons 275 Standard Originating Notice of Mo- 323 Standard tion Petition 342 Standard Appeal 740 Standard

Table 2: High Court General Estimated Disposition Times

High Court General (Est. Disposition Time in Days)

1000

800

600

400

200 0 I I I Writ of Originating Originating Petiti on Appeal Summons Summons Notice of Motion

Figure 4: High Court General Estimated Disposition Times

The time difference between cases commenced by Writ of Summons and all other cases is statistically significant.

1.3. High Court General Rulings

The average disposition time for a ruling was 118.755 days.

2. High Court (Commercial)

2.1. High Court (Commercial) Judgments (Exact)

Mode of Commencement Duration in Days

Writ of Summons 834

Originating Summons 222

Appeal96 262

Table 3: High Court (Commercial) Exact Disposition

96Only one case was classified as an Appeal in this data set. It took 262 days to complete.

High Court Commercial (Exact Disposition Time in Days)

900

800

700

600

500

400

300

200

100

Writ of Summons Originati ng Summons Appeal

Figure 5: High Court (Commercial) Exact Disposition Times

The time difference between Writ of Summons cases and Originating Summons cases is statistically significant.

2.2. High Court (Commercial) Rulings

The average time for the passage of a ruling was 193.9853 days.

2.3. High Court (Commercial) Judgments (Estimate)

Mode of Commencement Duration in Days

Writ of Summons 832

Originating Summons 264

Appeal97 1023

97Only two cases were classified as an Appeal in the data sent.

Table 4: High Court (Commercial) Estimated Disposi- tion Times

High Court Commercial (Est. Judgment Time in Days)

1200 1000

800 600

400 200

Writ of Summons Originating Summons Oriqinatinq Notice of Motion Figure 6: High Court (Commercial) Estimated Disposi- tion Times

3. Cross-Court Comparison

Mode of Com- High Court (Gen- High Court mencement eral) (Disposition Time in (Commercial) Days) (Disposition Time in Days)

Writ of Summons 1037 834

Originating Sum- 275 222 mons

Originating No- 323 262 tice of Motion

Table 5: Cross Court Comparison Disposition Times

Comparison Disposition Time in Days

1600 1400 1200 1000 800 600 400 200 0 I ■ I ■ Writ of SIummons Originating Summons Originating Notice of Motion

■ High Court General ■ High Court Commercial

Figure 7: Cross Court Comparison Disposition Times

The time difference between judgments in the High Court General and judgments in the Com- mercial Court is statistically significant.

The time difference between Writ of Summons Cases in the High Court General and the Com- mercial Court is statistically significant.

The time difference between Originating Summons Cases in the High Court General and the Commer- cial Court is not statistically significant.

The time difference between rulings in the High Court Gen- eral and rulings in the Commercial Court is statistically significant.

4. Demonstration of outlier effect via frequency distribution

High Court General Rulings (divided into bins of 25 days) – data points roughly over 350 days are considered outliers (6 total).

n C "Tl iii :I ., J:I < (}1 "' 0 "' (}1 ~ ~ 0 (}1 ------25 25 25 00 00 00 75 75 50 50 e 1 1 1 1 4 4 4 4 25 200 225 250 275 75 300 325 350 375 50 500 525 550 575 u 6 6

Figure 8: High Court General Ruling Outliers by Fre- quency Distribution

High Court General Judgments (divided into bins of 250 days) – data points roughly over 3000 are considered outliers (7 total).

n "Tl C iii :I .. < J:I w 0 (J'1 "' 0 "' (J'1 - - 0 (J'1 0 • • • ------1±1 e r - 250 000 500 1750 1 1 1 4000 4250 4500 4750 250 2000 2250 2500 2750 750 0 3000 3250 3500 3750 500 5000 Mo )

Figure 9: High Court General Judgment Outliers by Fre- quency Distribution

Commercial Court Rulings (divided into bins of 25 days) – Data points roughly over 475 are considered outliers (3 total).

C: (1) (1) 0 'Tl :::, ... '< .c .b,.O,O')-..JCX) (..,) 1\,,) .....1. ------0 1? 1? 'O 'O 'O V a :.ro SO <,, 9' Va Js, ✓ --&--o soo '~

Commercial Court Judgments (Divided into bins of 100 days) – Data points over 1700 are considered outliers (3 total).

Frequency 14 12 10 8 6 4 2 0 II I II I I

Figure 11: High Court (Commercial) Judgment Outliers by Frequency Distribution

QUALITATIVE FINDINGS

1. Non-Participant Observation of the Sub- ordinate Court

Percentage of cases in which unwarranted delay observed – 72%

Reasons for Delay in the Subordinate Court of Zambia

REASON FOR DELAY FREQUENCY (percentage of observed cases)

Late Start 64 % Infrastructure 21.6%

Counsel 17.6 %

State 17.6% Parties 15.2%

Court 10.4 %

Witnesses 5%

Table 6: Observed Reasons for Delay in the Subordinate Court of Zambia

2. Content Analysis of Judgments

Main coding categories:

Courts Lawyers Parties

Sub coding categories:

Unnecessary adjournments/delay Necessary/warranted adjournments/delay Failure to follow orders/direction Case transfer between judges/courts and judge intervention • Justified • Unjustified Abuse of court process Unwarranted dismissal of cases Inadequate court infrastructure Non-attendance of parties

• Without fault • With fault Delay for purposes of Judicial Review Movement to judgment to avoid further delay External influence/politics

5. DISCUSSION OF FINDINGS

QUANTITATIVE

The first somewhat remarkable aspect to the findings is the limited number of judgments released from the High Court. This study regards the inaccessibility of court judgments as a serious access-to-justice issue. Despite the comprehensive search for cases detailed in the methodology section of this report, the decisions found and ultimately reviewed, appear to be a mere sliver of the decisions handed down by the High Court. Statements made by a Judge of the High Court (as reported by the public press) seem to authenticate this finding. According to Judge Nichola Sharpe-Phiri, in 2016 alone;

A total of 3,630 civil cases were filed in the Lusaka High Court registries. Of these 3,630 cases 2,515 were general civil matters, 610 commercial cases, 364 divorce petitions, 15 arbitrations, 2 foreign judgments, 53 appeals and 71 election petitions.98

If one is to take this filing rate as an approximate baseline for the past five years, even with a very slow disposal rate, and even taking into account the fact that not all cases reach judgment stage (some are discontinued or dismissed), it is fair to assume that the vast majority of judgments are missing from the public domain. Indeed, ZambiaLII.org (the only publicly

98Lusakatimes (2017) Government to Appoint More High Court Judges to Speed up Justice Delivery- Lubinda. Available from: https://www.lusakatimes.com/2017/01/10/government-appoint- high-court-judges-speed-justice-delivery-lubinda/ [Accessed Octo- ber 2018]

available database of legal decisions in the country) hosts only 195 High Court civil judgments for 2016 and 124 for 2017. The implication of this is staggering.

Related to this, since the filing of an interim matter necessarily entails the suspending of the main matter, the disproportionately high number of interlocutory rulings (in comparison to judgments) published by the court is highly suggestive of delay.

Due to the critical role that legal information plays in the se- curing of livelihoods, the protection and enforcement of human rights, as well as the realization of ideals and aspirations, some have argued that the right to legal information is in fact a human right that should be guaranteed by and enforced against the state. Greenleaf, Mowbray, and Chung for instance, make the argument that a state has the duty to make legal information, including judgments, accessible to the public.99 They argue:

“The obligations of the State, in relation to all primary legal materials (‘materials’), are to provide these materials to other parties to republish, without fee, in the most complete, authentic and authoritative form possible, and so that materials may be repub- lished with their authority and integrity intact.”100

99 Greenleaf, G., Mowbray, A. & Chung, P. (2013) The Meaning of “Free Access to Legal Information”: A Twenty- Year Evolution. Journal of Open Access to Law. 1(1). (emphasis added).

100 Id. p. 30

The fact that most judgments remain hidden from the public purview has several implications. First is the issue of public accountability. The reasoning given in a judgment is the bed- rock of judicial accountability. In many cases, it is those reasons, and the degree to which they are legally sound, that determine whether a judge has been fair and impartial. Take the case of parliamentary election petitions for example. Despite the large number of parliamentary election petitions filed in the 2011 and 2016 election cycles, virtually none of the 2011 election petition decisions and only a fraction of the 2016 decisions are in the public domain (courtesy of Zambialii.org). The legitimizing and cathartic role that the judiciary has in adjudicating post electoral disputes makes the public availability of these decisions all the more necessary. When these decisions and the reasoning they contain are not publicly available, the judiciary becomes vulnerable to speculative at- tacks and allegations of bias and political maneuvering.

Second, the availability of judgments increases predictability in the legal system. A predictable legal system is an important indicator of the rule of law. When judicial decisions are withheld, it is difficult to trace the development and the trajectory of the law. As argued elsewhere;101

“Every judgment of a legitimate court or tribunal, no matter its status in the judicial hierarchy, is entitled to publication. This is useful for various purposes, for example, as a permanent evidence of its existence and for research by the judiciary, legal practitioners, academics, students, law enforcement agencies, etc. Further, free access to judicial decisions ensures transparency that promotes justice because it helps

101Mitee, L. (2017) The Right of Public Access to Legal Infor- mation: A Proposal for its Universal recognition as a Human Right. German Law Journal. 18(6).

every person to know the facts of a case, the judge, and the basis for the decision, from which the judge’s impartiality can be ascertained. This is particularly necessary in common-law jurisdictions that apply the doctrine of judicial precedents.”102

Indeed, “access to case law is of fundamental importance for the Rule of Law: it facilitates the scrutiny of justice, contrib- utes to the transparency of the judiciary and informs the public about the continuous development of the law.”103

The High Court General Registry

Coming specifically to the High Court General Registry, in addition to the relatively small number of decisions released by the court, four additional observations can be gleaned from the data. First, is the comparatively few cases commenced by writ of summons. Second, is the disproportionately high number of relatively straightforward one-dimensional disputes (landlord/tenant disputes, removal of caveat, declaration of estates etc.) that usually, but not always, proceed on affidavit evidence alone (indeed, there appear to be, from our observations, very few complex cases within the data set). Third, is the disproportionate public release of judgments per High Court Judge. Fifth is the outlier effect. All these points are related.

While one could argue that the average disposition time for rulings and judgments are disproportionately increased by the outliers (this may be paired with the argument that observations/perceptions are likewise skewed by a cognitive bias to- ward an emphasis on outliers), it appears that there may be a more compelling argument. That argument is that given the incomplete data set and given how few decisions are released

102Id. p. 1475 103 Id.

by the High Court, the calculated disposition times are in fact down-shifted from their actual values. If one accepts this sup- position, it is arguable that the observed outliers might not in fact be outliers.

To put it another way, since the available data set yielded very few contentious matters (commenced by writ of summons), and even fewer complex matters, rather than assume that these types of cases are not filed in the Zambian court system, it is more reasonable to assume that these categories of cases have still not been concluded or have not been released. This argument is bolstered when selection bias is taken into account. Since individual courts have the autonomy to decide which rulings and judgments to release into the public domain, it is not inconceivable to believe that cases that have dragged on for an embarrassing length of time, whether at the fault of the court or otherwise, might be intentionally withheld from publication. Similarly, it is not outside the realm of possibility to assume that efficient judges disproportionately release their judgments. Further, it must be emphasized here that a large portion of the data set came from the Council of Law Reporting. Selection bias is even more prominently in operation here. As indicated in the methodology section, judges send the Council their “top” decisions for possible inclusion in the Zambian Law Reports. Again, it is unlikely that cases with inordinate delay (on the part of the court) would make the cut. Due to the cumulative effect of the above stated reasons, this study hypothesizes that the calculated disposition times are therefore “best case scenarios.” When viewed in this light, the 1420 days it takes to resolve cases commenced by writ of summons points to a severe backlog in the system. Indeed, this hypothesis is confirmed by the content analysis of judicial decisions as well as government statements that admit the backlog. As recently as January 2017, the Minister of Justice, commenting on the need to appoint more judges to the High Court, attributed the admitted “backlog of cases” to inadequate judges, poor infrastructure and transport challenges.

The Commercial Court

The Commercial List was established as a cause list of the Zambian High Court in 2009. Historically, cases in the High Court were filed in a single registry known as the “general” registry and apart from the Industrial and Labour Relations Court established by the Industrial Relations Act in 1971, no other specialized lists or courts existed. The Commercial List was established to facilitate the “resolution of disputes relating to commercial transactions in a quick, efficient and effective manner” with the goal that the judiciary could become “a catalyst for economic growth in the country.”104 The Com- mercial List was elevated to a fully-fledged division of the High Court by the 2016 amendment of the Zambian Consti- tution.

While the difference between disposition times in the High Court (general) and the Commercial Court on matters commenced by writ of summons is statistically significant, when one looks at the modifications made to the commercial court to safeguard efficiency, the Commercial Court is surprisingly slow. To facilitate efficiency, the Commercial List rules differ from the rules of the General Registry in at least five prin- cipal ways; first, the rules set firm standards on the quality of pleadings. Second, the Commercial Court judge is empowered to take a proactive role in managing proceedings and reducing delay. Third, unjustified delays are explicitly prohib- ited and penalized. Fourth, strict time limits are imposed on

104 Judiciary of Zambia (2017) The Familiarization Tour of the Commercial Court of Zambia by the Hon. Deputy Chief Justice of Namibia. Online. Available from: http://www.judiciaryzambia.com/2017/12/08/the-familiarization-tour-of-the-commercial- court-of-zambia-by-the-hon-deputy-chief-justice-of-namibia/. [Accessed October 2018].

Commercial Court processes. Fifth, the Judges of the Com- mercial List hear commercial matters to the exclusion of all other matters. These differences notwithstanding, the average time it takes to resolve a Commercial Court matter commenced by writ of summons is approximately 863 days. The Commercial Court is therefore falling far short of its disposal target time of 6 months.

In terms of who the Commercial Court is serving, the primary beneficiaries appear to be banks and other lending institutions. The most frequent application in the Commercial Court was for foreclosure.

Ultimately, the project’s quantitative method will become more accurate once the barriers to information are removed and data gathering techniques improve. A greater number of data points in the project’s sample can only enhance the accuracy of results, as well as address the issues of selection bias and inability to perform a year-by-year analysis.

QUALITATIVE

Non-Participant Observation of the Subordinate Court

The failure of observed court sessions to start on time was the most recurrent causal factor for inefficiency. In 64% of the cases observed, the court session did not start on time. Ob- servers notes record that independent of any other factor, the failure to commence proceedings on time, sometimes caused delays of up to an hour long.

These delays naturally then cascade throughout the remainder of the working day to all other scheduled cases, each of which receive similar delays. Although this factor may be construed

as inconsequential when compared to anecdotal reports of multi-year-long backlogs in the judiciary, it is important to note that this effect compounds over long periods of time. The consistent loss of time in court is a long-term cost to efficiency and is therefore substantial.

Delays associated with counsel were significant (17.6% of observed cases). In several recorded cases, legal representatives were late, absent, or requested adjournments. There also appeared to be in several instances, poor communication between counsel and the accused. Delays associated with a lack of representation were also a major issue. In some cases, a litigant’s lack of representation (or ineffective representation) caused a delay due to unfamiliarity with court procedure. Ex- amples of this include litigants engaging in long winded but ultimately irrelevant argumentation, mishandling the cross- examination of witnesses, and misunderstanding repeated orders from the magistrate. As one observer recorded, “the accused was not asking relevant questions and did at several times repeat the same questions…this caused delay”.105 In another case in which the accused was not represented:

“The state produced a total of about 15 witnesses while the accused did not have any witnesses. The defendant’s representative walked into the court at 11:14 hours: a few minutes before the magistrate fin- ished reading the judgement… the accused was found guilty on all 54 charges.”106

Observations found that valuable court time is often wasted with magistrates frequently correcting litigants and witnesses on how to properly conduct themselves in proceedings.

105 Observation Record, June 2018 106 Observation Record, June 2018

Unavailability of parties and witnesses was also prominent. Several adjournments were caused by litigants’ failure to arrive at court in a timely manner, or at all. Even though observers were unable to identify the cause of every missing and/or delayed party, the checklist descriptions were still able to record some of the reasons provided by litigants and witnesses. The lack of proper notification and a lack of transportation were often cited. Here it should be noted that the vast majority of missing litigant cases ended with complete adjournment, while several of those cases where there was missing legal representation only contained a delay in proceedings. It could therefore be tentatively concluded that the issue of missing litigants has a greater impact on efficiency than that of missing representation.

Court associated delay (other than the delay of late start) was observable in about 10% of observed cases. There were some instances in which participating parties were allegedly misdi- rected by officials or signs at court, and consequently did not arrive in a timely fashion or went to the wrong location. Sev- eral of these cases incurred delays of greater than an hour. In some instances, a court room was not available. This was mainly due to the assignment of cases to visiting magistrates who do not have designated court rooms in Lusaka. The time spent on finding an available court room not only created a delay on its own, but also required a shift in the scheduling of other cases. In other cases, delays were caused by missing court officials and missing documents. One entry observed:

“After calling a case, it was discovered that the records for the case were not before the court. This matter was then put on hold. Different people (unknown) kept walking in and out of court and caused commo- tion and noise. It appeared that the people who kept walking in and out of court were with counsel, because they would walk out, come back, signal counsel or walk up to him in front, talk to him then take a seat

or walk out again, and this cycle continued until the case file was found.”107

A major category of delay was state associated inefficiency. Police delay alone was evident in 12.8% of all cases observed. In several cases, accused persons were brought late to court by police. In once interesting but perhaps tangential case, a witness stated that “the police used to chase him from the police station each time he offered to assist with the investiga- tions or offer to be a key witness for the accused, despite the fact that he was present at the crime scene”.108 In others, the unpreparedness of the state led to adjournments. As one observed noted, “the prosecutor appeared to be a learner. As such, she continuously made mistakes with regard to procedure, and sometimes substance, and was constantly corrected by the court and her fellow prosecutors. This prolonged the case”.109 Indeed, prosecutorial failures led to adjournments in already drawn-out cases. Notably, instances arose in which the prosecution failed to provide evidence to the defense, leading to an adjournment to allow the defense time to properly prepare.

Another significant factor, although only indirectly related to efficiency, is the issue of court infrastructure. Comfort, audibility, and safety issues in the court room can affect the efficiency of proceedings for several compounding reasons. In the most extreme cases, a field researcher reported the smell of possible marijuana smoke in the court room being so strong that she felt obligated to leave. Extreme discomfort due to excessive heat for example, can likewise be a factor in causing premature adjournments or the decrease in productivity/en- gagement of participants in proceedings. In one case, there

107 Observation Record, June 2018 108 Observation Record, June 2018 109 Observation Record, June 2018

was a power outage that disrupted proceedings. Additional problems such as the lack of lighting and lack of climate control were also identified. Although it is difficult to quantify this category’s precise impact on efficiency, its relative frequency suggests that it likewise serves to consistently chip away at the effective functioning of court proceedings. As observed in one recording, “the court was very hot and humid. No air conditioning. No lights were on. All the windows are very high up and none was open… the only source of venti- lation was the entrance right at the back of the courtroom”.110

The issue of audibility is related to court infrastructure but due to its more direct causal link to inefficiency, we discuss it separately. In several cases, field researchers noted that they were simply unable to hear the specifics of the proceeding. The implication of this is that participants could also not probably hear properly, and thus could not effectively engage with the court proceeding. The blame for this can be attributed to the noisy environment outside the court rooms and poor acoustic design. The latter (acoustic design) in one case, caused a ces- sation of proceedings when heavy rains barred any audibility.

There was one interesting observation, where the court case of a well-known political figure caused the entire shut down of the Subordinate Court. This occurrence did not repeat itself during the rest of the observations, but a further investigation of this category may reveal a stronger causal link in its implications for efficiency.

The role of the magistrate in promoting efficiency was also recorded. In some cases, Magistrates proactively curtailed time-wasting and inefficiency by emphasizing the importance of timeliness. As one observer recorded, “the Magistrate

110 Observation Record, June 2018

wanted the adjourned date set before 9th July 2018, but the State insisted on 9th July, 2018. The Magistrate asked the state why they couldn’t sacrifice some time to come before 9th July 2018”.111

Before leaving the discussion on the Subordinate Court findings behind, it should be noted that many of these categories have considerable overlap and the category codes are simply used to aid the understanding of the data. So, for example, state associated delay could also include party delay, since missing accused persons might in some instances be attributed to the state’s failure to bring the accused persons to court. Furthermore, since the courts are part of the state, court delay is ultimately state delay as well.

Content Analysis of Judicial Decisions

As should be evident from the findings outlined above, judges by and large admit that the courts are inefficient, and their comments provide unique insight into the causes and consequences of delay.112 Additionally, the fact that judges spend a significant time commenting on delays, even in cases in which the delay is not relevant to the substantive issue at hand, shows that the courts are keenly aware of the commonly held view that the courts are inefficient. In some cases, they seem anxious to deflect at least some of the blame. As one judge held:

111 Observation Record, June 2018 112The reasons judges give for unwarranted delay can be summa- rized as the following; non-attendance of parties/lawyers, ineffective/negligent counsel, case transfers between judges, abuse of course process, backlog, external influence/politics, inadequate court infrastructure and facilities, unmanageable work- loads.

“It is the advocates and litigants who are orchestrat- ing a misconception that Courts are to blame for delayed conclusion of matters. This case demonstrates that in fact this is not the position. The Plaintiff appears not to be keen to prosecute his claim. The Court totally disassociates itself from being complicit in of- fending Article 118 (2) (b) which demands that justice should not be delayed”.113

Further, the court was not shy to make an example of the er- rant parties. In dismissing the action, the court held thus; “to demonstrate its disapproval of the growing practice amongst some litigants and Advocates of not complying with order for directions, the Court is of the firm view that this is a fit and proper case to dismiss for want of prosecution”.114

Another interesting dimension is the proactive steps some judges take to avoid delay. This is a dimension that cannot be captured by quantitative method and thus underscores the use- fulness of this method. In one case, notwithstanding a lack of objection from the opposing side, the Judge flatly refused to grant an adjournment, stating thus: “I refused to grant the adjournment, notwithstanding there being no objection from counsel for the Plaintiff because, I did not accept the reasons given for applying for the same and neither was a notice filed indicating that an adjournment”.115

113 Josiah Mubukwanu Litia Nyumbu Vs Tawila Akapelwa & 4 others (HC) [2014] 2014/HP/1748 (27 June 2017) Available from: http://www.judiciaryzambia.com/2017/06/28/2014-hp-1748-josiah-mubukwanu-litia-nyumbu-vs-tawila-akapelwa-4-others-jun- 2017-justice-m-chitabo-sc/ [Accessed October 2018]. 114 Id. 115 Amanita Milling Ltd v Nkhosi Breweries Ltd (2008/HPC/0241) [2011] ZMHC 25 (3 March 2011) Available from: https://zambialii.org/node/3248 [Accessed October 2018].

However, at other times, the courts appear far too lax, as demonstrated in one case that had been dragging on for years, apparently with the courts complicity, until the judge finally had enough. As the Judge explains, “several hearing dates were given and the parties appeared before me to apply for adjournments for various reasons until 10th September 2012 when I put my foot down and forced the applicant’s advocate to commence trial after he had applied for an adjournment”.116

Most striking in the analysis is the apparently huge role that counsel play in causing delays. This finding is cross verified by the findings in the Subordinate Court. From the decisions analysed, it appears that Judges routinely chastise lawyers for their tardy conduct. In several of the cases reviewed, the court reprimanded counsel for delay, failure to follow orders, and all-round discourtesy of court proceedings. As opined by one judge:

“I found the conduct of Counsel for the Defendant during this episode to be very casual and discourte- ous to this Court. The discourtesy lay in his failure to file notices or motions to adjourn. It was clearly an attempt at delaying the disposal of the matter by way of procrastination. I therefore found no compelling reason to adjourn the matter and proceeded to hear the Plaintiff close its case.”117

116 Impala Gems and Trophies v E.N.T Motor Limited (2007/HK/KT04) [2014] ZMHC 61 (31 July 2014) Availa- ble from: https://zambialii.org/node/3533 [Accessed Octo- ber 2018].

117 Supra note 115

And in another: “I find this totally unacceptable as the history of Counsel’s appearance before this Court confirms that he does not take Court dates very seriously. He only has himself to blame for the sanctions the Defendant is faced with”.118 In one instance, the judge commented on what is apparently a well-known and near universal vice on the part of lawyers, commenting thus;

“There has been a total disregard of the order for directions. Put simply there has been a conspicuous dis- obedience or non-compliance with the order for directions. Advocates and litigants who chose to ignore court orders do so entirely at their own peril”119

In another instance:

“This court has had occasion in the past to comment adversely on the attitude of legal practitioners to compliance with other rules of procedure, but it is time that all legal practitioners were made to understand that where the rules prescribe times within which steps must be taken these rules must be adhered to strictly and those practitioners who ignore them will do so at their own peril”.120

The role of litigants in causing delay was also quite prominent, and the frivolous and “mischievous” applications and lawsuits that sometimes come before the courts is highlighted in the findings. Commenting on abuse of process by litigants and their lawyer, one Judge chastised the “coming to court

118Moses Sakala v Abacus 360 Corporate Ltd [2018] (HC) 2017/HP/0430 (20 March 2018) 119 Supra note 113 120 Nkhuwa v Lusaka Tyre Service Limited [1977] (SC) Z.R. 43.

relentlessly” of a litigant, and did not take kindly at the attempt to have a proverbial second “bite at the cherry”.121 In another case, the court clearly irritated by what it deemed an abuse of court process and waste of court’s time, held quite cuttingly;

“How can two men of full age and capacity…sit in Court and decide to remain mute, whether by visita- tion of God or otherwise, despite hearing their names and their Appeal being called for hearing by the Court, more so, in the absence of their legal Counsel? This is not the type of conduct that the Courts of the land expect of prudent and serious litigants”.122

And in another cutting remark, the court held that “the laxity exhibited by the Appellants can only be an indication of their disinterest in prosecuting their Appeal…hence they have no one to blame but themselves for the position they have found themselves in as a result of the stand we have taken on their Appeal.” [which was dismissed].123

In terms of court culpability, the courts in some cases acknowledge their own culpability. Backlog, imperfect record keeping, “unusually high volume of work”, election petitions, lack of resources (“evidence had to be recorded in long hand due to the non-availability of official court reporters”) government action (“the delay in this judgment is regretted. The reasons however, are a matter of public notoriety”), and

121 Liuwa v Attorney General (Appeal No. 38/2014) [2014] ZMSC 112 (21 August 2014) Available from: https://zambialii.org/node/2996 [Accessed October 2018]. 122 Mutantika and Another v Chipungu (Appeal No. 94/2012) [2014] ZMSC 127 (13 March 2014) Available from: https://zambialii.org/node/3011 [Accessed October 2018]. 123 Id.

case transfers between judges were all cited as reasons for court delay. In some cases, the judges acknowledged delay, but did not give reasons.

Concluding Remarks on Findings

The findings of this triangulation verify that the Zambian courts are not operating efficiently. The qualitative methods contextualize and interpret the quantitative data. The content analysis confirms that the superior courts are in fact back- logged and plagued with interruptions and delays and therefore provide a lens through which the calculated disposition times can be viewed. The observation of the Subordinate Court gives us unique insight into how these delays and dis- ruptions are operationalized at the micro level.

6. RECOMMENDATIONS AND FUTURE STUD- IES

Recommendations

Streamline Civil Procedure

Establish “simplified procedure” rules to eliminate procedural steps and provide for:

“summary trials” for certain categories of cases

Develop mechanisms to monitor and manage complex litigation Strengthen case management mechanisms Reform High Court Rules to impose stricter time requirements Reform High Court Rules to end party driven litigation Explore the use of quasi-judicial officers to deal with “simple” and non-contentious cases Rationalize the judiciary’s time by creating two separate “tracks” to deal with main and interlocutory matters Explore the use of a specialized ad hoc High Court Division to process parliamentary election petitions Resolve interlocutory applications on paper and without a hearing Encourage early settlements of disputes

Regulate Counsel

Direct hearing fees at lawyers not parties

Impose professional sanctions for abuse of process and waste of court time Non-attendance at court must be sanctioned as a disciplinary issue

Address Resource Crisis (human, financial, infrastructure)

Fill the establishment for judges Resolve court room space crisis Rethink acoustic design of Lusaka Subordinate Court Improve court room technology Provide additional research support for judges

Incentivize State

Allow actionable claims for unreasonable delay

Access to Information

Centralize high court registries Mandate the publication of judicial decisions Empower the Judiciary IT department to access and publish cases

Court

Create an incentive-based system to reward efficient judges Publish case disposal target times Establish a complaint mechanism for delay

Further Studies

The opportunities for further research around this topic are immense. Future research can replicate this study in the other superior courts (Appeal Court, Supreme Court and Constitu- tional Court). Further, disposition times of appeals can also be calculated.

The non-participant observer method can be replicated in Subordinate Courts in other parts of the country as well as in the Superior Courts. Additionally, the measurement of other judicial performance can also ground additional inquiries and lead the way for further empirical work on the courts. More- over, the development of performance indices would be enor- mously useful and is yet another opportunity for further research. Since the paucity of literature on court efficiency is a continental problem, comparative studies with other jurisdictions in the region and beyond could also be instructive.

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ACCESS TO JUSTICE: COURT EFFICIENCY IN ZAMBIA Access to justice is notjust a fundamental right in itself; it is also an essential prerequisite for the protection and promotion of all other civil, political, culturat 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.

While access to justice has many components, the speed with which litigants can have their case disposed of is an importantjustice indica tor. While there is wide-spread belief that the courts are inefficient, the evi-dence of this inefficiency is largely anecdotal and im-pressionistic. There is very little, if any, empirical data on the performance of Zambi an courts. This project seeks to address this gap and examine how efficiently the courts dispense justice and how ordinary citizens seek ing legal rem,edies interface with the judicial sys-tern. It is hoped that research findings can inform the development of norms and standards that can facilitate sound case management models and accountability. This study resists the common penchant to lay all the blame for court delay at the doorsteps of the judiciary. Taking a multi-dimensional approach, the study shows that the courts are just one factor in the unhappy story of court delay and congestion ~

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Tinenenji Banda is a Lecturer in the School of Law of the University of Zambia, and an Associate Director (leg.al) of the Southern African Institute for Policy and Re-search (SAIPAR). Dr. Banda is a JSD and LLM graduate of Cornell Law School, an LLB graduate of the University of Cape Town, and a qualified attorney in Zambia and New York. She has broad experience in develop ing research and analytical protocols, and her main research interests focus on formal and informal dispute resolution systems and the capacity of legal institutions to meet justice demands.