ACCESS TO JUSTICE

UNCLAS LUSAKA 000586

SIPDIS

E.O. 12958: N/A
TAGS: KCOR KDEM PGOV
SUBJECT: ACCESS TO JUSTICE


1. Summary: In August 2009, emboffs visited local
courthouses to observe how citizens access justice. The
emboffs concluded that Zambia's judicial system was missing
fundamental mechanisms to promote efficiency and fairness.
End Summary.


2. Using customary and statutory laws, Zambia's dual legal
system has 400 local courts, 53 subordinate courts, 11 high
courts, and one Supreme court. Only applied in local courts,
customary law focuses on civil matters, particularly family
issues. Increased urbanization creates new challenges for
administering customary law, which varies according to ethnic
community. Statutory law carries precedence over customary
law, permitting citizens to appeal judgments from local
courts. However, the appeal process can be quite cumbersome
as high legal and transportation costs place limitations on
accessibility.


3. Inadequate financial and human resources hamper progress
within the judicial system. Low wages inhibit recruitment of
highly qualified judges and increase the vulnerability to
corruption. In local and subordinate courts, most
magistrates lack formal legal training and access to newly
developed legislation. At this level, court decisions are a
combination of customary law, common sense, and corrupt
behavior. Litigants can rarely afford legal representation
fees and fall prey to manipulation from minimal knowledge of
their legal rights. Staff and funding shortages hinder Legal
Aid services geared towards representing poverty-stricken
people, especially in rural areas. However, the 2007
Transparency International Human Rights Report indicated 40
percent of households and 25 percent of business managers
involved in court proceedings bribed magistrates to evade
lengthy judicial processes. This illustrates the strong
disparity between wealthy and marginalized groups in
accessing justice.


4. Failure to incorporate support staff and basic technology
gravely impacts the judicial process. The lack of basic
record-keeping and case management systems accounts for
lengthy court continuances and prolonged remand for
offenders. Without adequate court support staff, the roles
of judges and magistrates shift from presiding over cases to
transcribing entire case details by hand, gathering external
information, and posing questions in the absence of a lawyer.
Active listening during cases becomes a lower priority,
requiring lawyers to simplify arguments and slowly articulate
points.


5. In, 2002, President Mwanawasa advocated judicial reform
during the launch of his anti-corruption initiative.
Upgraded court facilities, increased training opportunities,
and the construction of new courthouses became unfulfilled
commitments inherited by President Banda. Although President
Banda stressed the importance of dispensing justice
effectively during a press interview, judicial reform has
continued at a glacial speed. However, in August 2009, Vice
President George Kunda presided over the launch of the Small
Claims Courts, designed to empower citizens to engage in
court proceedings. Trained commissioners will preside over
the Small Claims Courts incorporated in all nine provinces.
The Small Claim Courts represent a small triumph, as
litigants receive judgments instantaneously. This new
process will reduce court delays at all levels. Since the
launch, Lusaka and Ndola have received 127 cases. To ensure
sustainability, President Banda has pushed for Law
Association of Zambia (LAZ) and judiciary members to
collaborate, encouraging its members to serve as Small Claims
Court commissioners and offer pro bono services. Currently,
there are 20 trained commissioners operating in two districts.


6. The NGOs and donor community remain committed to improving
the judicial system. Justice for Widows, Young Women's
Christian Association, National Legal Aid Clinic for Women,
and Legal Resources Foundation provide assistance through
offering free legal representation, operating mobile legal
clinics, and expanding legal training opportunities. The
UNDP, European Commission, Irish Aid, and DFID supported the
Zambian Parliamentary Reform, geared towards strengthening
rule of law. In 2007, Denmark introduced the 'Access to
Justice' program to target assistance towards vulnerable
women and children attempting to penetrate the judicial
system. In June 2009, USAID produced an assessment on
Zambia's Rule of Law, which pinpointed financial shortfalls,
service delivery, and limited knowledge of legal rights as
weaknesses in the justice sector.


7. Comment: Isolated programs like 'Access to Justice' raise
awareness at the working level, while advocating for
institutional change. However, individual programs have a
shallow impact as only limited areas receive assistance.
BOOTH