By JULIUS PHIRI –
ARTICLE 120(4) of the Zambian Constitution states that the courts, except the Supreme Court and the Constitutional Court, shall be devolved to the provinces and progressively to districts.
The purpose of the provision is to ensure that court services are gradually decentralized and brought to the users in the provinces and ultimately the districts.
It is all about facilitating physical access to courts by the people of Zambia in the provinces and districts.
This was in fulfilment of the broader concept of access to justice.
Chief Justice Mumba Malila in his inaugural address to Judiciary staff on December 22, 2021 spoke on the need to increase access to justice for all.
This was principally because access to justice was not merely a right in itself – it was the key enabler for making other fundamental rights realisable.
For the longest time in its short existence as a nation state, High Court was serviced by resident judges at Livingstone, Lusaka, Kabwe, Ndola and Kitwe.
In short, other provincial capitals such as Solwezi of North-western Province, Western Province, Eastern Province, Northern Province, Muchinga Province and indeed in Luapula Province had no resident judge or judge in-charge.
The reason for the absence of resident High Court judges in those areas is among other things lack of resources, unavailability of court infrastructure and inadequate volumes of litigation at that level to justify the cost of placing resident judges.
While resources remain scarce and infrastructure continues to be a critical problem, the truth is that circumstances have significantly changed.
Currently, the population has grown tremendously in these provincial locations.
The population has increased and there is complexity of crime in various provinces.
Many legal issues require that they be dealt with at the level of the High Court, at least.
This is more so in civil cases where the jurisdictional limits of local courts and subordinate courts have largely remained insignificant over the years.
During the ceremonial opening of criminal session for 2022 recently, Dr Malila said circuiting sessions for the High Court alone to centres that were presently without resident Judges cost the Judiciary over K12 million in 2020.
In 2021, the judiciary spent over K 9 million on circuiting sessions for the High Court.
According to Dr Malila, the practice has been that Judges stationed in Lusaka, Kabwe, Ndola and Kitwe have, amongst themselves, circuited to provincial centres which were without resident judges.
He said such circuiting does not of course come cheap and it came at considerable financial, logistical and man hours’ cost to the Judiciary.
Dr Malila said there was also the question of the High Court judges’ supervisory role of review and revision of Subordinate Courts’ decisions.
He said that supervisory jurisdiction serves as a quality assurance mechanism especially for persons who were unable to launch appeals.
“Yet, that jurisdiction is hardly exercised when there are no resident High Court Judges in close proximity to these Subordinate Courts,” he said.
The access to justice includes other variables and parameters like, the procedural mechanism for the resolution of disputes, the quality of the human and material resources available and the quality of justice delivered.
Others are the time it takes for the delivery of justice, the moral quality of the allocators of justice, the affordability of the cost of seeking justice in terms of time and money, the quality of the legal advisers that assist litigants and accused persons- especially and above all, the virtuousness and impartiality of the operators of the system.
In a sense, it was the most central of the rights that people, especially the litigating public, have.
Dr Malila announced the programme of placement of resident Judges at Solwezi High Court, at Mongu High Court, at Chipata High Court, at Kasama High Court and at Mansa High Court. Judges have now been deployed to take up their positions as resident judges at all the stations.
Besides that, the Chief Justice introduced the first provincial resident Judge in the person of Justice Derrick Mulenga for Solwezi High Court.
“We are yet to deploy resident judges at Chinsali and Mazabuka. The judges so deployed are already serving judges and so there will be no incurring of usual costs associated with recruitment,” he said.
He also acknowledged that the judiciary still have serious infrastructure insufficiencies in the provincial centres and that there would be some initial hardships and inconvenience to be experienced as some of our resident judges and their staff may have to share the limited court infrastructure and facilities with their counterparts from inferior courts.
Regardless of the teething problems that may be experienced, it remains my fundamental conviction that the positioning of resident judges in all provincial centres would have tangible long-term benefits for the people in different areas.
It would also enhance access to justice, accelerate the disposal of criminal cases, especially, eliminate circuiting costs and improve the supervision of Subordinate Courts by the High Court in those centres.
The resources freed from circuiting would usefully be deployed in improving other court operations so as to make access to justice real.
Dr Malila appealed to local authorities, other Government and quasi Government agencies and departments such as the Zambia Police Service and the Social Welfare Department, as well as the local communities in general in all the provincial centres in which resident judges would be positioned, to extend all the necessary support and cooperation to the resident Judges and their staff.
In Chipata, newly appointed Chipata High Court judge in-charge Mercy Makubalo said there was urgent need to build a new High Court in Eastern Province.
Ms Justice Makubalo said at the ceremonial opening of the High Court criminal sessions for 2022 held in Chipata that she was hoping that the challenge would be addressed within the shortest possible time to enhance delivery by the High Court to the people of the province.
She said the judiciary had continued to hold the High Court sessions in Chipata on time which was indicative of the patriotism by judiciary.
Ms Justice Makubalo also said the senseless loss of lives was regrettable stating that the levels of crime were cause for concern for all meaning and patriotic Zambians.
She said there was need for continued concerted efforts to maintain law and order as well as reduce crime in the province.
Eastern Province Minister Peter Phiri said that justice delayed was justice denied.
Mr Phiri aware of the challenges faced by the High Court in Chipata especially regarding lack of infrastructure for High Court sessions.
The Minister said he was reliably informed that the Chipata City Council had already allocated four hectares of land for the construction of the Chipata High Court and the residence for resident judges.
“I will liaise with my counterpart at the Ministry of Justice to ensure that the construction of the Chipata High Court is prioritised and budgeted for. I strongly believe that the construction of the Chipata High Court will enhance service delivery by the High Court to the people of the province,” Mr Phiri said.
He said he was pleased to note that despite the challenges of lack of infrastructure, the judiciary was still providing High Court sessions in Chipata on time.
He said the United Party for National Development (UPND) Government was committed to strengthening and preserving the integrity of the concept of separation of powers among the executive, the judiciary and the legislature as provided for in the constitution.
“We believe that constructive relationships among these three arms of Government are essential to the effective maintenance of the constitution and the rule of law.
The UPND Government will, therefore, guarantee the independence of the judiciary so that it is impartial and effective in the interpretation of laws and administration of justice. The UPND Government will also respect court judgments and orders to entrench the rule of law and enhance constitutionalism,” Mr Phiri said.
The path the Chief Justice has taken will certainly go a long way to promote smooth delivery of justice across the country.