By Alex Tawanda Magaisa
IN terms of the Constitution of Zimbabwe there are three arms of state, namely the executive, the legislature and the judiciary. While most members of the executi
ve and legislature are elected, members of the judiciary are appointed by the president.
The judiciary is important because it is considered as the last bastion for the protection of fundamental rights and freedoms. Chapter 3 of the Constitution of Zimbabwe guarantees fundamental rights and freedoms for all.
Section 3 of the constitution stipulates that the constitution is the supreme law of the country. Any legislation that is enacted by the legislature must comply with the constitution, otherwise it is void. If any person feels that a law violates the constitution they are entitled in terms of s. 24 of the constitution, to bring a constitutional challenge in the Supreme Court, the highest court in the land which also acts as the constitutional court.
Since the constitution provides that right, the court must ensure that people have access to it without unnecessary limitation. A right that the constitution guarantees must not be limited except in exceptional circumstances.
In a democracy there is always a need to balance the claims and rights of the majority with those of minorities or individuals. Invariably the rights of the majority are served through their control of the legislature and the executive arms of the state. The majority can, through their control of those arms of the state, enact legislation and make policies that serve their ends.
In executing its constitutional role of judicial decision-making, the court can sometimes find itself in situations where there are potential clashes with the executive. The executive is always concerned when it considers that the judiciary is intruding into its policymaking role. Similarly the executive through the legislature is always protective of its law-making role, insisting that the courts have no power to make law but only to interpret it. While it is important that the judiciary takes care in its decision-making so that it does not exceed its powers, it is also equally important that it does not become too restrained, especially when policy or legislation negatively affects fundamental rights.
The judiciary may fail in the execution of its duty as the protector of the constitution and fundamental rights when it loses its independence. The independence of the judiciary is often under threat from the executive arm of government. If judicial independence is undermined, it will be difficult for citizens to protect and enforce their rights against the state. That is why it is necessary in any democracy to ensure that conditions are conducive to maintain the independence of the judiciary.
The independence of the judiciary hinges on a number of factors that include the nature of their appointment, security of tenure, remuneration and political influence. In terms of the constitution judges are essentially appointees of the president and Judicial Service Commission. Statements by ministers that they were getting rid of the old judges and appointing their own judges who would understand the agenda of the government do not help to create an image of an independent judiciary.
That is not to say that problems with judicial appointments are exclusive to Zimbabwe. In countries such as the US, there have also been problems when it comes to the appointment of Supreme Court judges.
It is necessary however to always make the process of appointment clear and credible otherwise people lose confidence in the bench. Despite constitutional provisions guaranteeing secure tenure of office for judges a number of judges have either resigned or been forced out due to political pressure during the current crisis in Zimbabwe. Whatever the case, it must be worrying when so many members of the bench leave within a short period of time. It is necessary to ensure that security of tenure of office exists in real terms.
The harassment of judges such as the unconstitutional arrests of Justice Blackie and Justice Paradza can also bring pressure on the judiciary. The public and other judges have cause to worry that harassment is rooted in political motives. Such actions undermine judicial independence as judges will live in fear that if they make decisions that are not favourable to the executive they will be humiliated in similar fashion. The judiciary has consistently failed to attract talented lawyers, partly because it does not offer good remuneration. Since judicial remuneration is in the hands of the executive arm, there is always the danger that if the judiciary appears to make decisions against the state, even if constitutionally their remuneration cannot be reduced, it may never be raised in real terms. That would leave them in a position in which they are too dependent on the state and such a situation is not conducive to judicial independence.
In conclusion, the judiciary needs to inspire confidence and trust among the general population. Courts must be efficient and ensure that matters are dealt with timeously. As they say, justice delayed is justice denied. The fact that so many political cases have been pending before the High and Supreme Courts long after they were brought to court makes people lose confidence in the law as an institution that can assist them in times of need.
The judiciary cannot fulfil its role as the last bastion for the protection of fundamental rights if its independence in the current political climate is at risk. Some of the decisions that have been made in recent months do not inspire confidence. Government legislation and policy must not come before the rights of citizens.
But theoretical separations of power are not sufficient. We should note the words of an eminent US jurist who stated: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
Alex Tawanda Magaisa is a law lecturer at the University of Nottingham, UK.