Justice delayed, justice denied
Author: Aldo Zammit-Borda
Article Date: 6 Mar 2008
What is the Commonwealth Secretariat doing for justice systems in member countries?
Kevin Maguire is Legal Adviser within the Justice Section of the Legal and Constitutional Affairs Division of the Commonwealth Secretariat. He is responsible for developing assistance programmes for justice systems in member countries that request help.
Aldo Zammit-Borda asked him about his main areas of work.
Swaziland’s courts have a substantial backlog of civil and criminal cases. Sometimes people must wait a long time to have their case heard. What is the Commonwealth Secretariat doing to help alleviate this problem?
The most serious consequence of the backlog of criminal cases in Swaziland is the detention of people awaiting trial. Such people can be held in custody for a substantial period of time before their case is determined.
Another consequence of the backlog - this time relating to civil and commercial cases - is that it discourages commerce in Swaziland. The backlog serves to scare investors away; this is due to the fact that litigation is an ordinary component of commercial activity and the inefficiencies arising from this backlog could be very costly for investors. It is therefore important to improve case flow management.
The Commonwealth Secretariat has put in place a strategy to make case flow management in Swaziland more efficient. This includes training magistrates to increase their capacity to determine more cases, court personnel to increase their efficiency and legal drafters by providing trained professionals to mentor them.
The Secretariat is also providing two judges for the High Court of Swaziland to help reduce this backlog.
In Guyana too, the Secretariat has provided an expert on civil procedures to help the courts become more efficient by assisting in the development of new civil rules of procedure.
One of the major changes these new rules will bring is that cases will become judge-controlled, rather than litigant-controlled, meaning that litigants – parties engaged in a lawsuit - will have to stick to clear timetables or face a penalty. This will help prevent unnecessary delays and thus decrease the backlog.
Sometimes litigants take cases to court, even when this is not strictly necessary, and the case has the potential to be settled out of court. The new rules will also provide for compulsory mediation for cases that can be settled without a court hearing.
It will allow the courts to concentrate on hearing only those cases that cannot be settled by agreement.
Improving efficiency in the court is also important to guarantee the overall administration of justice. In what other ways has the Commonwealth Secretariat helped in improving efficiency in the courts?
The Secretariat has worked with Zambia and Zanzibar to develop a Court Handbook which will help professionalise the administration of justice in these courts.
These Handbooks set down the precise procedures court personnel should follow in doing their work. This will assist in preventing lost files and delays in the preparation of documentation.
In turn, it will give rise to more efficient court staff, who can provide better service and advice to the public.
Zambia is a good example of a country that has followed up on the impetus provided by the Secretariat. Following the production of this Handbook, Zambia is devising a course, together with a local university, to train all potential court clerks, based on the contents of the Handbook. Trainees will become familiar with procedures and best practices encouraged by the Handbook, leading to a more professional court administration.
In Zanzibar, this Handbook has been complemented by a Code of Conduct which includes such provisions as dress code and dealing with the public, legal profession, police and the media.
The administration of justice depends on other institutions besides the courts. Does the Commonwealth Secretariat work with other institutions involved in the administration of justice?
For example, in August 2007, the Secretariat organised a meeting in Zanzibar for the police, which discussed police handling of domestic violence and the treatment of juvenile suspects.
This meeting brought important stakeholders together, including the police, law courts, social welfare and public prosecution representatives, to discuss how to improve police handling of such cases. It gave rise to the production of draft Police Rules of Procedure, which will eventually be implemented throughout the country.
The draft Rules of Procedure are currently awaiting official approval. Once approved, training will be provided to the police on their use. Concurrently, a public information campaign to inform citizens of these procedures and their rights will be carried out. This information campaign will begin in Zanzibar and later move to mainland Tanzania.
Is the assistance provided by the Commonwealth Secretariat open to all Commonwealth countries? And what should a country wishing such assistance do to contact you?
The Secretariat is ready to assist all Commonwealth countries wishing to strengthen their administration of justice.
Formal requests for assistance should be directed to the Legal and Constitutional Affairs Division of the Commonwealth Secretariat and, ideally, should specify the assistance being sought. However, the Secretariat is also prepared to act on more generic requests.
These formal requests would normally be made by the Chief Justice or the Justice Minister.
Following the request, a mission will be undertaken to assess the needs of a country. The report of this mission will make recommendations and set out priorities, and on the basis of these priorities, the Secretariat will make a formal offer of assistance.
The cost of the assistance is borne by the Secretariat. Where appropriate, the Secretariat cooperates with other donors in order to avoid duplication and to maximise the value of such assistance.
Dr Aldo Zammit Borda is Legal Editor, Legal and Constitutional Affairs Division of the Commonwealth Secretariat.