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An argument for deepening of legal democracy by introduction of trial Judge and Jury

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Supreme court

Supreme court

By Munyonzwe Hamalengwa, PhD. Barrister and Solicitor
With the increasing criminalization of politics in Zambia and the political use of nolle prosequi, it is time to radically reform the judicial system of Zambia.

I argue for the introduction of the jury system in Zambia and all other new democracies. To drive the point home, my analysis begins with a broader historical historical background and comparative sweep of the modern trials. South Africa is a good example to begin my analysis in this piece.

Would a well instructed jury, comprising of a fair minded multiracial and gender representative group of 12 citizens, have convicted Nelson Mandela and his comrades at the conclusion of the treason trial in 1964, particularly after listening to Mandela’s now famous defence published in No Easy Walk To Freedom? Would Ken Saro Wiwa, a Nigerian author who was executed by the Nigerian government in November 1995 have been convicted if the trial was before a Judge and Jury? Would so many others in democratising societies? I seriously doubt that Mandela and Saro-Wiwa would have been convicted if their trials had been conducted before a Judge and 12 Jurors. These trials and others were patently politically motivated and the Jurors would have seen through the smoke.

It is my thesis that legal and political democracy in democratising societies will not be complete and deep enough without the introduction of the Jury system in these societies. The Jury System is a system where the Judge conducts the trial and makes rulings on the admissibility and exclusion of evidence, but the facts and credibility of the evidence is found by 12 lay persons previously chosen both by the prosecution and defence. At the end of the trial, the Judge instructs the jury on the law, but the decision to acquit or convict is reached by the jury after private deliberations.

The jury system was introduced centuries ago in England to act as a bulwark against statecraft. The state wanted convictions and the Judges got the convictions no matter what the evidence was. The Judges were part of the state machinery. They were also easily intimidated if they tried to be independent. (We know from recent experience in many countries including Zambia where judges have been intimidated and changed their previous rulings). It was not so easy to intimidate 12 disparate citizens who had no stake in the system.

The jury system was adopted in other Jurisdictions like the American, Canadian, and others. Ironically it was not introduced by the colonial powers where the jury system would have been most apt and absolutely necessary – in the colonies and now democratising countries. The legal system during the colonial times and afterwards was tyrannical. It could have used a doze of Justice which the Jury system brings in judiciary-repressive systems. Consider the trials of Jomo Kenyatta during the colonial period in Kenya. Consider the trials of Fidel Castro in Cuba in 1953 during the Batista dictatorship. Or the trials of Zambian nationalists during the colonial era. I submit that the jury would have acquitted Kenyatta, Castro, and Zambian nationalists. Mainza Chona was convicted of sedition. But there was no jury system then in these countries. There is still no jury system in the majority of the former colonial world and newly democratising countries. It ought to be instituted.

This is not however, to say that the jury system is all rosy. The jury system has had a chequered history. Until the second half of the 20th century, blacks and women were not allowed on the jury panels in the U.S. White juries routinely convicted black defendants even on flimsy evidence, eg. The Scotsboro case in the thirties U.S.A. etc. On the other hand, white juries routinely acquitted white defendants who killed blacks even when the evidence was overwhelming, eg. the white murderer who killed Medgar Evers or the first trial in the Rodney King Case.

In recent times, white juries routinely acquit white police officers who kill black youth. They even don’t indict them to face at least criminal trials as happened in Ferguson and New York.

However, the jury system like democracy itself, has to be nurtured and struggled for. We could see positive developments due to increasing public scrutiny. It is not perfect but improving. The jury brings a sense of justice and fair play to the process. Since it is not the Judge who convicts or acquits, the Judge has little opportunity to intimidate the prosecution or defence or revenge in his or her rulings. The state can also not blatantly skew the proceedings for fear of jury backlash. In politically motivated criminal charges or unfair trials, the defence can play the jury nullification card. The Morgentaler abortion cases of the 1970’s and 80’s in Canada is a perfect example of jury nullification. Abortion was a hot topic in Canada then. Judges would have convicted even when the abortion law was unpopular. The jury did not give any qualms about the law. They cared much about justice. In repressive systems you need more justice than Law.

In countries like Zambia, strong reforms in the judicial system are needed. We now have the entrenchment of the criminalization of the political system and the political uses of the tool of nolle prosequi. We have the routine politically motivated removal of immunity protections of constitutional office holders. To cure these ills Zambia needs judicial reforms to entrench the independence of the judiciary and the introduction of the jury system in Zambia.

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