Judge says independent judiciary essential in fighting corruption |23 November 2020

The Honourable Justice Professor Key Dingake (Photo: Moses Magadza)

An eminent judge has enjoined Southern African Development Community members of parliament to help create an environment for the appointment of judicial officers including judges on merit rather than for political expedience if the fight against corruption is to be won.

The Honourable Justice Professor Key Dingake – a sitting judge of the Supreme and National Courts of Papua New Guinea and Court of Appeal of Seychelles – made the call last week when he addressed the members of parliament (MPs). The lawmakers belong to the standing committee on democratisation, governance and human rights of the SADC Parliamentary Forum. Their committee met virtually under the theme: ‘Enhancing the Role of Parliament in Curbing Corruption and Strengthening Accountability Through Building Institutional Collaboration with National and Anti-Corruption State and Non-State Actors’.

Justice Dingake said corruption is a violation of human rights which deprives people of the resources they need to survive and thrive.

He warned that the good intentions of MPs, anti-corruption bodies and non-state actors to eradicate the scourge would fail unless backed by an independent and impartial judiciary.

“A judiciary that is independent and impartial is more likely to be effective in fighting corruption than the one that is not. A judiciary that is the lap dog of the executive cannot enjoy the confidence of the people,” he said.

He challenged the MPs and members of the executive to lend political will, show integrity and walk the talk about“zero tolerance of corruption”, saying the extent to which the judiciary could effectively fight corruption was dependent on the state of democracy and political will in any given country.

He said: “The unspoken tragedy in Africa that keeps corruption alive is that the proceeds of crime and illicit money are the raw materials for election campaigns and election buying with the result that criminal cartels are now buying governments – in waiting, in advance.”

He said countries with a democratic deficit and in which the voices of civil society, students, journalists and other voices of change are violently suppressed seldom succeed in eradicating corruption.

“Corruption tends to thrive in countries where there is no freedom of information, where the national leadership is not obliged to declare assets and liabilities; where there is poor governance, freedom of the media is suppressed and democratic rights curtailed,” the judge said.

On the role of the judiciary in fighting corruption, he said the manner in which judges are appointed could determine their effectiveness in enforcing the law and holding public officials accountable.

“The growing phenomenon of cadre deployment – a situation in which the appointment of judges is made purely on political considerations and not merit ‒ undermines the fight against corruption and the rule of law. Appointments of judges based on political considerations is in itself a form of judicial capture and should be strongly discouraged,” he said.

He expressed concern over “disturbing reports in which some chief justices conveniently empanel ‘suitable’ justices who can deliver verdicts that are consistent with governments’ preferences,” regardless of experience, seniority and qualifications.

Justice Dingake said a 2016 report produced by Global Integrity, an organisation that promotes transparency and accountability around the world, showed that judicial independence was not guaranteed in about half of the 54 African countries while in several countries in SADC, the president alone has the unfettered power to appoint the chief justice and president of the court of appeal.

He said: “Appointments sanctioned by the President of a country tend to be determined by political loyalty rather than merit. When such appointees fill the judiciary, experts argue that the likelihood of a government being held accountable is diminished and the door is left open to all kinds of influence, including political pressure, threats and bribery.”

He advocated for a merit-based and transparent process of selection of judges, saying it boosts the judiciary’s ability to effectively fight corruption.

“Transparency is the key to judicial independence and accountability. It seems incontrovertible that an open and participatory judicial selection system has better prospects of selecting more competent judges. Invariably, judges appointed in such a manner are better placed to administer their judicial functions in a fair and impartial manner,” he said.

The judge said MPs could use their law-making mandate to give the judiciary an enabling legal framework to buttress anti-corruption efforts that inter alia: criminalise corrupt activities; enhance transparency in public procurement; require public officials to regularly declare assets and liabilities; identify and prevent conflict of interests; protect whistle-blowers; and enable tracing, seizure, freezing and forfeiture of all illicit earnings from corruption.

“We need laws that protect whistle-blowers; laws on freedom of information, laws on declaration of assets and liabilities; laws on conflict of interests, laws on public interest litigation – where people other than those directly involved (concerned members of the public) can file a suit on behalf of the public.”

On why some corruption cases were not successfully prosecuted, Mr Dingake cited several factors including non-existent or inadequate whistle-blower protection litigation and inadequate resources.

“The judiciary has a sacred duty to adjudicate over corruption cases fairly, impartially and without fear or favour. This requires knowledge, competence and judicial courage, a courage and integrity grounded on the oath of office that should see the courts applying the law equally without regard to the status or position of those charged with corruption,” he said.

Moses Magadza