“Sangwa Says” Contextualising what the Zambian Constitutional Court says about the financial independence of the judiciary

In S v Van Rooyen para 35, the Constitutional Court emphasized that—“[o]ne of the main goals of institutional judicial independence is to safeguard [constitutional] rights. However, institutional judicial independence itself is a constitutional principle and norm that goes beyond and lies outside the Bill of Rights. The provisions of section 36 of the Constitution dealing with the limitation to rights entrenched in the Bill of Rights are accordingly not applicable to it. Judicial independence is not subject to limitation.”

The traditional conception of judicial independence encompasses the personal and functional independence of judges, with the purpose of insulating them from undue influence and ensuring their impartiality.

In the South African dispensation, personal and functional independence is guaranteed by several provisions of the Constitution: Section 165 lays a constitutional foundation for independence in broad and all-encompassing strokes; section 174, 175 and 178 ensures that permanent and acting judges are appointed through a proper, circumscribed process involving inherent checks and balances; section 176 guarantees the terms of office of judges, foreclosing threats of salary cuts and the like; and section 177 sets a high threshold for removal from office, preventing capricious removal of judges by government.

But, as S v Rooyen alludes to, the judiciary has an institutional dimension. The court system consists of an army supporting those who wear judicial robes: court managers, registrars, clerks, secretaries, researchers, librarians, and database technicians. The judiciary also relies on officials responsible for procuring anything and everything from basic furniture to information technology hardware; experts in finance management and audit; information technology support; infrastructure and facilities maintenance; and security services for court buildings, offices, storage facilities and judicial officers themselves. This list is far from exhaustive.

Without this legion of administrators and support personnel, and their matrixes of information technology, logistical, and financial systems, the courts would be unable to function. The ineluctable conclusion is that, in a most crucial sense, the courts – far from being independent – are dependent on an effective and functioning administration. The corollary is that whoever controls the court administration wields immense power over the judiciary from behind the scenes.

The South African Judiciary

Traditionally, the executive is responsible for the administration of the superior courts including finances, staffing, and other logistics support. For obvious reasons, that gives the executive outsized influence over the judiciary – both factually and perceptually.

In South Africa, the superior courts are administered by the Office of the Chief Justice in conjunction with the Department of Justice and Constitutional Development, both departments of the national government (i.e., the executive).

The public remarks of several senior judges suggest that this executive control appears to be hampering access to, and the delivery of, proper, independent justice. For instance, Chief Justice Maya stated at the International Association of Judges Conference held in October 2024 that “… despite the significant gains, the attainment of an effective and truly independent judiciary that delivers accessible and quality justice for all in the country – as envisaged in our Constitution – remains elusive because our judiciary does not have full institutional independence. …”

At a farewell dinner in honour of former Chief Justice Zondo, Chief Justice Maya indicated an intention on the part of the judiciary to obtain full independence.

Additionally, former Chief Justice Zondo noted that he had appointed a “committee under the chairpersonship of retired Judge President Ngoepe” to “look into the response given by the executive” and “make recommendations”, with its report having been shared with the executive.

“Key component of institutional independence is financial independence”

The former Chief Justice opined that a negotiated solution would be optimal, but that if the executive was not forthcoming, then it may force the South African judiciary to take court action – like “other judiciaries on the continent have had to take certain steps in order to force the executives in their countries – they’ve gone to court [to obtain institutional independence]”.

Similar court action is precisely what prompted judgment by the Zambian Constitutional Court in Sangwa.

Budgeting for the Judiciary

A well-oiled and capacitated judiciary does not come cheap, if at all. The Lady Chief Justice of England and Wale, Baroness Carr of Walton‑on‑the‑Hill told the UK Commons Justice Committee recently that “the foundation of the rule of law is a properly funded and a properly functioning justice system that delivers for our citizens… The rule of law is not free; it requires investment.”

For context:

o   The South African judiciary had a 2023/24 budget allocation of ± R2.5 billion.

o   The current budget for the Canadian courts administration service – which supports only the Federal Court and Court of Appeal, the Court Martial Appeal Court and the Tax Court alone – is $100 million, with even that amount proving inadequate.

o   Net expenditure by the UK’s HM Courts and Tribunals Service for 2023/24 was £1.8 billion.

o   For the 2022/2023 financial year, the Ugandan judiciary stated its budget allocation was UGX 373 billion.

In Sangwa, the court recognised this as an element of judicial independence more broadly, which – while not absolute – necessitates “sufficient institutional and operational autonomy to shield the judiciary from both undue and [the] high possibility of real influence and interference” by parliament or the executive.

Holding that a “key component of institutional independence is financial independence”, the court ruled that the Zambian parliament was in breach of its constitutional obligations to the extent that it had failed to enact legislation ensuring: (i) the full financial independence of the judiciary, in general; (ii) that the judiciary would be “adequately funded”; and (iii) that funds allocated to the judiciary would be ring-fenced from control or interference by other state organs (i.e., cannot be subject to conditions, limits or suspensions imposed by the Treasury Secretary).

Drawing on several decisions by other foreign apex courts – namely the Ugandan Court of Appeal (qua Constitutional Court) decisions in Odongo and Uganda Law Society – the court offered three distinct but interrelated and mutually-reinforcing bases for its ruling: the separation of powers designating the judiciary as a co-equal branch of the state that performs oversight over parliament and the executive; the “enhanced efficiency and accountability” of the judiciary; and the prescriptions of article 123 of the Zambian Constitution requiring that the judiciary “be a self-accounting institution” and “adequately funded”.

Conclusion

Much of the principled rationale articulated in Sangwa transcends national boundaries, finding application wherever a national judiciary is defined as an independent pillar within a state’s constitutional architecture. Many states across the continent – and beyond – could learn a lesson or two from this landmark judgment; and should act on those lessons by “actuali[sing]” applicable constitutional provisions through “through legislation, policies, processes and mechanisms”.