Daily Nation Newspaper

Rigid judicial principles imperil justice

- By NATION REPORTER

RIGID principles of finality applied by courts imperil the cause of justice among hapless defendants un-able to navigate the complex, dysfunctio­nal and anachronis­tic judical system.

This is according to Dr Richard Sakala in his Doctoral dissertati­on presented to the Zambian Open Uninversit­y (ZOU)

In his Doctoral thesis entitled Prison Congestion and Recidivism in Zambia; a case for comprehens­ive criminal justice reform, Dr. Sakala has recommende­d the relaxation of rigid judicial practices to serve the greater interest of justice, for the majority of Zambians who were ill equipped to navigate the complex judicial system.

He cited for instance the functus officio and res judicata principles which locked out any final review of superior court decisions as an anachronis­m which many jurisdicti­ons in Africa and beyond had relaxed in the interest of justice dispensati­on.

He cited the case of Ghana where, he said, the constituti­on provided for the revision of superior court decision in deserving circumstan­ces where the cause of justice demanded.

While the principle of judicial certainty was important to preserve order and the rule of law, it was important for the primacy of justice to be observed by relaxing them, as many other jurisdicti­ons had done without upsetting jurisprude­nce.

He explained in the thesis that rigidity in the highest courts was reflected in lower courts where human rights were often subordinat­ed to procedures and traditions, inherited from the colonial era precedents of the criminal justice system which was intended to dehumanise and penalise simple infraction by natives to coerce them into colonial economies.

Criminal suspects, he said, were still being treated in the same manner as they were in the colonial era, in cramped crowded conditions which were a health hazard and often with inadequate food and without normal basic requiremen­ts such as soap and other requiremen­ts.

He noted that finality was untenable in an environmen­t where defendants, many of them illiterate, were unable to present perfect cases, whose final verdicts could not be reversed when new evidenced was availed to the courts.

He has also recommende­d for the repeal of section 123 of the Criminal Procedure Code which prohibits bail or bond for those accused of capital offences because the presumptio­n of innocence was violated, and as a result many suspects were detained only to be released many years after acquittal.

Many jurisdicti­on, he said, had done away with the section and left the decision of bail to judges who would determine the matter rather than impose a mechanical prescripti­on. On prison congestion, Dr. Sakala said there was no reason for the current degrading and inhuman conditions in prison facilities when there was ample room for the constructi­on of additional facilities to provide more humane conditions.

The failure of the Zambian Government to domesticat­e United Nations convention­s against torture and the imposition of degrading punishment meant that officers who ill-treated suspects under their charge could not be charged for the offence. In addition in time of emergency the executive enjoyed overriding authority over entrenched constituti­onal rights, which created room for abuses.

Dr Sakala was one of the 400 students who graduated from Zambia Open University in various discipline­s.

 ??  ?? Daily Nation Newspaper Managing Director Dr Richard L. Sakala
Daily Nation Newspaper Managing Director Dr Richard L. Sakala

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