Rigid judicial principles imperil justice
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.