Can the judiciary be held accountable by Parliament?

Last week Parliament’s Legal Affairs Committee was reported to have announced its plan to haul the Chief Justice before it to explain how the judiciary manages corruption cases. This plan was announced in the wake of the acquittal of Former Minister of Agriculture, Irrigation and Water Development George Chaponda concerning criminal charges arising from the Zambia maize procurement scam. The plan raises the question of the accountability of judicial officers individually and of the judiciary as a collective to Parliament.

Media reports suggest that members of the committee were dissatisfied with the acquittal. The Chief Justice was then expected to explain how the magistrate had come to this decision. The explanation was to be made to the committee itself. However, the committee did not explain the legal basis on which it sought to summon the Chief Justice to appear before it.

It is gratifying to learn that Members of Parliament (MPs) take corruption seriously and are interested in seeking explanations from the agencies of government empowered to combat crime and corruption.

However, such good intentions need to be properly channeled, for they can lead to misguided and counter-productive political action. In this particular case, the plan, if implemented, could cause a constitutional crisis.

Neither a judicial officer nor the Chief Justice as the head of the judiciary can be called to account to a parliamentary committee or Parliament itself for the manner in which a court decision has been made. There is no legal basis for such an account.

The reason why our laws do not create this route of accountability for the judiciary is that the judiciary and all judicial officers are supposed to be independent. The Constitution, as do all constitutions, clearly guarantees the independence of the judiciary. Such independence is both institutional and individual: the judiciary as an institution should operate without interference as should individual judicial officers, whether they are magistrates, junior or senior judges.

Judicial officers are guaranteed independence not only from actors external to the judiciary but also from actors within the judiciary. A magistrate, however, junior can thus not be dictated to by, or called to explain his or her decision to, a senior magistrate, judge or indeed the Chief Justice. He or she is legally obliged to exercise his or her functions independently, guided only by the law and relevant facts presented before the court.

In this regard, it is important to distinguish between the roles of crime fighting agencies such as the police, the ministry of justice and prosecutorial agencies and of the courts. The policies of the government regarding fighting crime are rightly implemented by various government agencies. The accountability structure of these institutions is also laid out by their respective enabling statutes. There is scope for the responsible ministers and officials to account for the manner in which their crime fighting policies have been implemented.

The same cannot be said about the judiciary. The role of a judge is to resolve legal disputes having regard solely to the applicable law and relevant facts. In criminal matters, a court is expected ultimately to decide whether the prosecution has proven a charge beyond a reasonable doubt. Only two options are available: guilty or not guilty.

Once a court has found an accused guilty, it does not mean that it is implementing a particular crime fighting policy. It means rather that it has satisfied itself that the evidence brought before it warrants a conviction. Conversely, if a court finds a person not guilty of a crime, this does not mean that it is frustrating the crime fighting policies of the government. All it means is that it has not been persuaded that the evidence supports a conviction.

This is the hallmark of judicial independence. A court cannot adjudicate legal disputes by reference to a particular policy of the government of the day. To require the courts to do so would open the possibility for the consideration of irrelevant factors in judicial decision making, putting at risk the fair trial rights of accused persons.

That judges or the judiciary cannot be called to account before Parliament does not mean that they are above the law. The system of appeal was designed to ensure that judges are held accountable by their peers or seniors. To the public, judges are accountable through the requirement to give reasons for their decisions and to conduct their proceedings in public. Judicial decisions are also subjected to academic and professional scrutiny.

It is justifiable for the general public to feel frustrated when a major political figure is acquitted of a crime when publicly available evidence suggests that a different outcome was possible. It is precisely when public opinion is strongly in favour of a particular outcome, however, that an independent judiciary is most needed to ensure that justice is administered according to law, not public opinion.

*Danwood Chirwa is Professor of Law at University of Cape Town, South Africa