Are our junior magistrates sufficiently trained to sit on the bench and administer justice?

Owen Nsala | Wednesday November 22, 2017 18:39

The Judicial Service Commission (JSC) really needs to have a chat with itself regarding the appointment of entry level magistrates. As it is, the entry level into the magistracy is more a training court than a court of justice. Granted, the magistrates are given what one would term easy to dispose cases. The reality though is that justice cares less about the weight or complexity of a case. It must be served with sufficient diligence and knowledge.

There has been great concern amongst legal practitioners with regards to how the junior magistrates tend to conduct the affairs of their courts. Sometimes, on the face of lack of knowledge, and understandably so, given they are at the teething stage of appreciating law at a practical level, they tend to overstep their powers. They seek to intimidate or use powers granted to them by the magistrate courts and in the process play the man and not the ball.

It is high time that the JSC considers hiring magistrates with practical experience in law and litigation in general. I do not think the status quo, where the junior magistrates train under the watch of senior magistrates is sufficient. Once they leave the presence of their seniors or supervisors they tend to be lost at sea and as I said, understandably so, given the complex nature of the office of a judicial officer in that on each various day a new legal challenge arises, which the magistrate must offer a sound acceptance or rejection to.

I do not, on any given day, doubt the intelligence of those that graduated from law school. To make it to law school on its own ticks the boxes of one who is smart enough. The reality though is that a law degree and the practical handling of the law can be totally different and call for character. The courtroom can be a lonely place for judicial officers, and at times intimidating depending on the character of the parties before court. In those circumstances, it is not law reading intelligence that matters. What is needed is emotional intelligence and the ability to steer as far away from emotions as possible.

Several cases have arisen where litigants have been detained at the whims and caprices of magistrates. In most cases, the magistrates are protected by judicial immunity and lawsuits are far and few apart.

Litigants are jailed on account of contempt of court when, if a sober and experienced magistrate was sitting, the contempt order would not be pronounced. Litigants and sometimes lawyers are imprisoned to send a message home that there is a new Sherriff in town.

Contempt of court is used as deterrence to those litigating before the junior magistrates. That is not the justice I know. But as I said, I perfectly understand the predicament that the magistrates find themselves in as they are thrown into the deep end and asked to swim when the closest they have encountered water was in a shower.

We must recall that those junior magistrates have sentencing powers. Well, the sentences that they have powers to pass maybe less, but it does not detract from the fact that a person would have endured a prison term on an error that a trained and seasoned magistrate would not have fallen into. I am reminded herein of a magistrate who sentenced a person to prison when in actual fact the offence committed had no jail time. Elementary yes, but practical experience would have offered much more wisdom and counsel.

It cannot be celebrated to have people wrongfully convicted on glaring errors from the trainees. In a system as ours, where record of proceeding take years to be transcribed, a prison term of three months means your chances of noting an appeal and hearing your bail at the High Court would take a far longer period than the sentence invited upon you. That cannot be justice. It cannot be acceptable that we risk the rights of freedoms and fair trials of litigants by deliberately employing people without the technical know-how to conduct trials and have the powers to sentence without any measures of supervision.

To this end, it may be time that the JSC fully considers the status quo and call for much more experienced entry level magisterial positions to avoid incidents where people are incarcerated on account of ignorance by those tasked with the hand of justice. Or, the junior magistrates must be given sufficient training and mentoring to enable them to feel at home and not be intimidated. They are, of course an intelligent bunch but justice demands that those who sit to so deliver it have the requisite tools to deliver it without fear or favour.