BY DR MASIMBA MAVAZA
As Zimbabwe starts hunting for new judges of the high court it is high time that we do a serious dipper soul searching Ritual. The events of the past months have shown that Zimbabwean courts are graced by some Judicial mercenaries.
It will be very important that those who are tasked with the honour of selecting judges must consider the commitment of the candidates. Many people take the judgeship as a pension and a pass time.
Judges should be selected from those who are in the civil service already or at least give priority to them. These are committed and take this offer as duty. They will consider it as duty and they will perform it without bias.
It does not just sit well with reason that five judges are fired for incompetence in five years. We must however seek to understand Zimbabwe’s legal system. The legal system of Zimbabwe is based on Roman Dutch law and at the top of the courtrooms is the Constitutional Court. The Constitutional Court is headed by a chief justice of the country. The Constitutional Court has the jurisdiction over alleged violations of fundamental rights guaranteed in the Constitution and constitutional breaches.
The Constitution of Zimbabwe is the supreme law of the land. The justice system and the constitution are like oil and water they do not mix but need each other because nothing moves without the other in a car.
The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament and senate. In Zimbabwean democracy these three branches of the state are separate from each other. They have roles and functions that are defined within our constitution, preventing the concentration of power in any one branch and enabling each branch to serve as a check on the other two branches. This is known as separation of powers. Zimbabwe famously and almost uniquely, does have two legal systems which are traditional and Roman Dutch law. Besides our common law we have laws which are found in the statutes passed by Parliament and in the common law, the law developed over the centuries in the decisions of the courts.
Zimbabwean constitution is one of the most well known written constitutions, which developed by time from one imposed to us at independence to the one which can only be enacted and repealed by a special procedure that differs from the procedure for making and repealing ordinary legislation. It requires a three third majority of parliament and the same in senate.
Our respect of the constitution is one of the consequences of the way the Zimbabwe and its political and legal institutions have evolved since 1980. Another consequence is that our constitution does separate the functions and powers of the three different branches of the state, the executive, the legislature, and the judiciary. So the Judiciary must not be the one running the other two. The judiciary runs together with other two so none of the tree must pull it alone.
So the events of the past months in Zimbabwean legal corridors showed us that the system does not fail but the individuals trusted to run the institution are the ones failing the institutions.
So it was not the judiciary system which caused the near constitutional crisis but it was the unpatriotic jurists who were conflicted.
This problem did very well to show us that in future a judge must not be allowed to play politics with the law.
If unchecked the judiciary if left in the hands of politically motivated judges can effect the illegal regime change agenda. The shenanigans of the judicial activists were exposed and controlled.
Democracy does not give one arm of government a superiority complex.
Zimbabwe must understand the importance of judicial independence and the consequences of that independence on the notion of judicial accountability. We must understand that some of the practical arrangements which govern the way the judiciary operates on a day-to-day basis is the prerogative of the chief justice’s office.
We are all familiar with media reports of a government ministers who are forced to resign or dismissed for behaviour which is or is perceived to be inappropriate or for incompetence in the performance of his or her duties. If this happens many celebrate and thank the press for being transparent. We must therefore not cry foul when many press headlines condemn a judge or magistrate, for example for handing down a “soft” sentence, or inefficiency. However there is always an outcry if it is announced that the judge in question has resigned or has been dismissed as a result of that criticism. This shows the double standards of our society. Many will wonder why steps are not taken to dismiss such judges or to force them to resign. Why would one want that judges and magistrates to appear to be unaccountable in the face of such criticism? Why is it that the way they are treated should appear to be different to the treatment of many others, from government ministers and public officials, to the directors and employees of companies?
The truth is that the judiciary is accountable, but in a different manner. The reason for this difference is a fundamental feature of our constitution going to the very heart of our democracy. The difference stems from the need to ensure that judges are impartial and independent of central and local government and from pressures from the media, companies, and pressure groups while exercising their judicial functions. That need is also reflected in the constitutions of all democratic countries.
The extent to which the judiciary in Zimbabwe should be accountable, and how they are accountable, and why there is a need for judges to be completely independent from Government and other powerful groups, are difficult questions.
The opposition is agitating people to believe that judges if fired it is a political punishment. This thinking is unfortunate and indeed contemptuous.
Thus the dismissal of Justice Ndewere and the tribunals set for other judges is not motivated by any form of political activism or bias. The protests on social media when judges are criticised affects the confidence people have in the ability of judges to uphold the rule of law. It is a complex area, but we hope that an understanding of some of the issues involved will help to put into perspective the way in which the courts deliver justice.
It should be understood that judicial independence is a vital element of our democracy and the effect that has on the notion of judicial accountability. There are constraints placed on the judiciary by legislation enacted by Parliament, and the ways in which individual judges are accountable. If parliament lawfully enact a piece of legislation the judges must be responsible and not just jump to oppose.
There must be accountability to more senior judges through the system enabling appeal to a higher court and accountability to the Chief Justice through the system set not through a back door legal cum political plotting. There must be accountability to the public through open access to justice and the publication of the vast majority of judicial decisions.
It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the social media and the opposition, executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges. Any form of interference must not be accepted yet some individual judges are political activists and play the confusing role in the judiciary.
It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice; to do justice between man and man’ between citizen and citizen or between citizen and the state’.
The responsibilities of judges in disputes between the citizen and the state have increased together with the growth in governmental functions but it is being soiled by Judges who aim at the executive in order to keep dominance above other two arms of the government.
The responsibility of the judiciary to protect citizens against unlawful acts of government and that of the opposition has thus increased, and with it the need for the judiciary to be independent of any pressure. As well as in fact being independent in this way, it is of vital importance that judges are seen to be both independent and impartial. Justice must not only be done – it must be seen to be done.
Whilst an independent and impartial judiciary is one of the cornerstones of a democracy, the practical ways in which this is given effect are often treated with suspicion. For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function. They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses in the course of hearing cases. These principles have led some people to suggest that Judges are somehow ‘above the law’.
However, it is not right to say that Judges are above the law. Judges are subject to the law in the same way as any other citizen. The JSC has a constitutional right to refer a judge to a tribunal in order to establish whether it would be appropriate to remove them from office in circumstances where they have been found to have committed a criminal offence.
Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies. This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities.
This requirement that judges be free from any improper influence also underpins the duty placed on them to declare personal interests in any case before it starts, to ensure that there is neither any bias or partiality, or any appearance of such. But now we have individual judges who refuse to recuse themselves even though they know that they have an interest in the outcome of the whole case.
But it is important that decisions in the courts are made in accordance with the law and are not influenced by such external factors. It is also important however to observe one or two points which will have an impact on the outcome of the trial and our understanding of it:
Interference with the judiciary is seen in Zimbabwe and perpetrated by those outside the government. It stinks if the nation has activists as judges.
The selection of judges must now be done on patriotic basis and not by a mere public interview. Those who have served the nation in public service have already shown their commitment to serve the
Public and the nation. These are not motivated by pride or money. They view it as a reward for good work and they will and are highly likely to work hard to give back to the trust bestowed on them.
If judges are fired it reminds us that judges are accountable for their actions.
We must first ask what it means to say someone is accountable for their actions. In many areas accountability means that, just like football managers, an individual who fails to perform satisfactorily in their job should be sacked or should resign. Some people have called this form of accountability, ‘sacrificial accountability’, meaning that the only solution is for the individual concerned to no longer continue in their role.
In the case of the judiciary, however, safeguards are needed to ensure that Judges are free to make their judicial decisions without fear or favour and thus to preserve their independence.
A fundamental requirement of our system of justice is that there must be adherence to the principle of legality. This principle encompasses an elementary notion of justice and is safeguard against unfairness. There should be no conflict between the judiciary and other arms of government.
Zimbabwe must never be afraid to discipline errant judges and it must not allow those judges to use their offices to bring judicial confusion to the system.
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