SCHOOL: SCHOOL OF LAW
DEGREE PROGRAMME: BACHELOR OF LAWS
COURSE: CONSTITUTIONAL LAW (L112)
MODE OF STUDY: FULL TIME
DUE DATE: 12TH SEPTEMBER
LECTURER: MRS. K. MWAULUKA
ASSIGNMENT: Explain the concept of judicial independence and its
significance in a democratic society with regards to maintaining the
rule of law, protecting human rights, and ensuring fair and impartial
justice.
GROUP MEMBERS
1. Tofara Gosho LLB24126288
2. Albertina Mumba LLB24124268
3. Mary Peace Tinashe Zulu LLB24125868
4. Msanguruski Mtonga LLB24124912
5. Deborah Chisembe LLB24126488
6. Tanisha Choolwe Hanakamba LLB24124313
7. Ngaakudzweishe Muchavhaira LLB24126750
8. Chisamu Mukupa. A LLB24125377
Judicial Independence is a doctrine that the judiciary of a given state ought to be
independent from influence, pressure and force from any branch of government,
geo-politics and economic duress. 1The judiciary is theoretically is meant to be
independent, it is the duty of judges, magistrates and justices to make decisions
without internal and external pressures of any kind from any interest group. This
write up will discuss the concept of judicial independence, its significance in a
democratic society and how it brings about fairness, impartial justice, protects
fundamental rights of every person and ultimately how it maintains the rule of law.
For judicial independence to suffice, there is need for separation of power which is a
principle of Constitutionalism. 2Montesquieu described the various forms of
distribution of political power among a Legislature, an Executive and a Judiciary.
Montesquieu’s approach was to present and defend a form of government whose
powers were not centralized in a single entity.
Article 140 of the Constitution provide for the role of each organ of the government.
The separation of power comes about in different forms. Institutional separation of
power being one of the forms. There are distinct branches of government each with
its own duty. The judiciary main aim is to interpret the laws, as provided for by Article
118 of the Constitution, free from pressure. The judiciary is entitled to budget
anatomy under separation of power. Constitution Article 123. (1) provides ‘’the
Judiciary shall be a self-accounting institution’’. 3In Sangwa V Attorney General and
Law Association of Zambia case before the honourable courts, Mr John Sangwa,
‘’asked for an order compelling the minister responsible for finance to put measures
in place that would ensure the judiciary became a ‘self-accounting institution’, as
stipulated in the constitution, and to ensure that it was ‘adequately funded’ every
financial year, as constitutionally required’’. John Sangwa`s argument ‘was to
improve the independence of Zambia’s judiciary, by, among others, ensuring judges
were financially independent’.
It`s only fair that in a bid to discuss the independence of the judiciary this write up
discusses some of the influences and pressures that undermine independence of the
1
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The Spirit of Law (1748)
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John Sangwa v The Attorney General (2021/CCZ/0035) [2023] ZMCC 21 (27 October 2023)
judiciary. Internally the judiciary has to cope with political interference. Judicial
appoints of judges rests within the powers of the president as provided for in Article
140. This may undermine the independence, for the judges may end up doing the
bidding of their appointers. The legislative board may enact politically motivated laws
since the Constitution provides the power of enacting laws rests within their
jurisdiction. Manipulation from the executive may also undermine the independence
of the judiciary for example salary manipulation may compromise judicial
independence.
Externally the judiciary may be influenced by international influences, foreign
governments and other organizations. According to the4 African Business website
the Ugandan Anti-Homosexuality Act, weighed on the country’s economy, with the
World Bank frizzing its funding. This shows how foreign organisations can also
compromise a states judiciary independence. However, 5the judiciary in Uganda has
resisted pressure from rights organisations, the UN and foreign governments to
repeal the law. Relations with the US were also threatened. Uganda and the US
have a long-standing partnership, dating back to the Reagan era, focusing on
military cooperation and development. Uganda plays a key role in regional security,
particularly in Somalia, and receives significant US aid for healthcare, including
HIV/AIDS treatment, with over $950m provided in 2022. The judiciary independence
in these regard is under massive pressure to set good precedents while conforming
to the nations laws but also keeping along strategic allies whose upset may have
undesirable consequences.
The essay will now focus on the significance of upholding the rule of law, protecting
human rights and ensuring fairness and impartiality.
Firstly maintaining the rule of law. Judicial Independence is essential for upholding
the rule of law, which is critical for a functioning democracy. Its principal goal is to
constrain government action in that, all persons and authorities within the state,
whether public or private, should be bound by and entitled to the benefit of laws
publicly and prospectively promulgated publicly administered in the Courts. It also
controls the exercise of public power and ensures that it is exercised within the legal
limits making sure that the government is subject to the same legislation as the
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law
people it governs. Ensures balance between the legislative, executive, and judicial
branches of government.
Secondly, the significance of judicial independence in regards to fairness and
impartiality. 6Fair system of judiciary must be put in place to ensure that judicial
decisions can be challenged by every citizen regardless of political affliation or status
in society who might be affected by them as presented in the case of Derick Chitala.
Aims to rectify mistakes and hold everyone accountable as much as possible. On the
other hand, judges must be able to make their decisions without fear of losing their
jobs or being put in political turmoil.
Lastly, judicial independence ensures that individual rights and freedoms are
safeguarded against government overreach or abuse of power. Independent judges
can enforce human rights law, holding individuals and institutions accountable for
violations. The enjoyment of rights and freedoms is the preserve of every person in
society. The Judiciary fundamentally operates to justly and fairly uphold human
rights and guard against injustices. In its independent capacity, it provides a haven
for the legally aggrieved. Article 11 of the Constitution provides for the fundamental
rights and freedoms and it states; 7It is recognized and declared that every person in
Zambia has been and shall continue to be entitled to the fundamental rights and
freedoms of the individual, that is to say, the right, whatever his race, place of origin,
political opinions, colour, creed, sex or marital status. These rights can only be
protected and respected in a democratic state where there is Judicial Independence.
Judicial independence is important to ensure fairness, impartiality, and the rule of
law in a crucial elements of democratic society. It allows judicial decisions to be free
from internal and external pressures, such as political interference, legislative
pressures, and foreign influences, which can undermine judicial independence.
Despite these challenges, judicial independence is a vital element of a democracy.
BIBLIOGRAPHY
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PART III (THE BILL OF RIGHTS) 1996 CONSTITUTION
STATUTES
CONSTITUTION AMENDMENT ACT NO. 2 OF 2016
PART III (THE BILL OF RIGHTS) 1996 CONSTITUTION
CASE LAW
JOHN SANGWA V THE ATTORNEY GENERAL (2021/CCZ/0035) [2023] ZMCC 21 (27 October
2023)
BOOKS
CHARLES LOUIS SECONDAT, BARON DE LA BREDE ET DE MONTESQUEUIE, THE SPIRIT OF
LAW (1748)
INTERNET SOURCES
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