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AN ARGUMENT FOR THE INTRODUCTION OF THE JURY SYSTEM

By:  Munyonzwe Hamalengwa

August 21st, 2007 

I am arguing for the introduction of the jury system in young democracies.  If the call receives positive response from various international organizations and governments, to which I have made a pitch, then there will soon be a Global Jury Watch Group.   

The first Bill of Rights in the world, otherwise known as the Magna Carta (1265), introduced in the English legal system  trial by judge and jury, in principle.  The actual practice was introduced several centuries later. 

The Magna Carta stipulated that “nobody should suffer loss of liberty except by the judgment of his peers”.  The introduction of the jury system was not accompanied by “judgment of peers”.  For several centuries, women and non-white persons were not allowed on the jury.  Poor people were also excluded.  This was also the case when the jury system was introduced in the U.S.A., Canada, Australia and New Zealand. 

Even with these imperfections, the jury system threatened the grip of the ruling classes over the judicial system.  The jury system provided quite some relief for individuals subject to trial by judge and jury.  Juries could see injustices in certain instances and acquitted the individuals where judges sitting alone may not have done this.  The jury is quite a democratizing institution.  It would especially be so in new democracies.  The jury system was introduced to curb state power over the judicial system. 

Ask yourself this question:  why didn’t the British introduce the jury system in its colonies except those of Canada, the U.S.A., New Zealand and Australia?  It just happened that in those colonies where the British introduced the jury system, imperfect as it was, ended up developing more robust political and legal democracies, than in those systems where the jury system was not introduced. The judiciary is further, more independent, among other trappings, where the jury system was introduced.  Were the British afraid of democracy?  Who now is afraid of more democracy? 

All individuals charged with treason or during a state of emergency or other serious criminal or civil cases (like libel) ought to be tried before a judge and jury.  This way powerful political and judicial interests will not be able to influence the course of justice with impunity.  Juries are known to act unpredictably, especially when they sense an injustice being perpetrated.  I am now talking about a jury panel composed of a representative racial, gender, age and cultural mix.  The jury system also acts as a protector of judges.  Judges are known to tremble when confronted by powerful political and moneyed interests.  Juries are more resilient, albeit also corruptible. 

Consider the political trials of Nelson Mandela; Dedan Kimathi (Kenya); Jomo Kenyatta (Kenya); Fidel Castro (Cuba); Louis Riel (Canada); Ken Saro-Wiwa (Nigeria) and so on.  Would these individuals have been convicted if they were tried before a representative jury panel?  Consider the political cases that have taken place here and elsewhere.   Would the outcome have been the same if there were a jury system?  Juries are not perfect but they are better than judges sitting alone.  I usually try cases before judge and jury.

I propose the introduction of the jury system in developing countries such as India, South Africa, Zimbabwe, Zambia, Kenya, Nigeria and so on.  It is now time to introduce what the British left out, a system that served their legal system well.  Now to the conscientization emanating from publicized wrongful conviction, the British now want to reform the jury system.  In developing countries, the reform should constitute the introduction of the jury system.  It is time to remove absolute power from political and judicial elites.