Judicial democracy

By Darlington Chiluba

POLITICS and democracy are not the same thing. In fact, they can operate in absolute opposition or collaboratively depending on the setting.
On the surface, democracy is people centric while politics is about interests and how those interests can be used to take and maintain power.
Politics can be manipulative while democracy is designed to be representative. When used productively, both of these belief systems can be the most progressive instruments of governance for any country.
However, in truth, neither politics nor democracy guarantees peace or prosperity for any given nation.
The common ground for both politics and democracy is that they operate within the realms of power. They affect people and largely give identity to nations. Of course, it is possible for politics to exist dominantly without recourse to any form of democracy.
Conversely, it is also possible for democracy to exist in theory while citizens lament in political constriction.
In this respect, it is important to understand that the existence of the trio arms of government, the executive, legislature and judiciary is a function of political power, not democracy.
One of the rudimentary ways of introducing democracy into pre-existing government structures is through elections. However, if citizens view democracy merely as an exercise of elections, then that country is ripe for political manipulation.
Of the three arms of government, the most sensitive institutionally, is the judiciary. If the judiciary becomes compromised, then equality before the law – and by consequence justice – is absent.
The judiciary is essential to democracy because it does not function according to popular opinion like the executive and legislature.
This is because judiciary represents institutional distribution of democracy beyond electoral intentions and outcomes. It represents the hope for equality regardless of the administration in office. The idea of justice is that it does not retreat to partisan whims or seek to isolate sections of the population through rationalised and diluted legalities.
Even when the power of the state brings a case against people that hold different opinions, the judiciary must stand as a bulwark especially in a democracy.
Noticeably, the most dangerous administrations, politicians or individuals are those that claim to be victims while holding the levers of power to direct punishment away from themselves.
It is exactly for this reason that genuine democracy depends on functional institutions that reflect national than sectional or regional identity. Even when the executive, through or in connivance with the legislature agree on ideas that are not reflective of the country’s identity, the judiciary must retain its independence and resist such manipulation.
A functional judiciary commands accountability from all state and non-state actors. Judicial democracy, therefore, does not stop politics from acting in favour of the majority. What it does is to insist that national sense and identity are not subject to majoritarian politics.
Electoral majority is not a constant, it responds to electoral themes and social interpretations that are fluid.
Applying the same principles to judicial democracy would create institutional inconsistencies that damage national reputations.
When judicial democracy is compromised, justice will either be for those in the majority or connected to the ruling class, while the rest of the nation is subjected to the harsh blade of the law.
Judicial democracy counters politics from serving minority interest. Outside the legislature, it acts in national interest and forces any challenging ideas to be put through referendum so that majority democracy qualifies as national interest and sovereign.
Once this area of democracy is undermined, the consequences can be severe.