Yes, Your Honour, but …

WE share Chief Justice Godfrey Chidyausiku’s view that the judiciary risks the loss of public confidence “unless we live up to the generally accepted universal standards of judicial conduct”. We also share his worry

that the current state of affairs in the judiciary provides “ominous signs that can only be ignored at our own peril”.

We however differ with the country’s highest jurist on the epicentre of discord in our judiciary. Opening the 2005 legal year on Monday, Chidyausiku noted with grave concern “corruption” in the judiciary. Reports in the state media said he singled out the cases of Bindura magistrate Mark Taruona and Justice Benjamin Paradza as reflecting “extremely disturbing developments” in the judiciary.

While Taruona has been tried by the courts, Paradza’s case is still pending. He has not been found guilty by any court and, in any case, he is contesting the allegations that he tried to influence fellow members on the bench to decide in favour of a business partner.

But statements by the Herald appear to suggest that the courts have already found against Paradza.

Judges are not above the law. When they err, they should be subjected to the law and receive a fair trial. But an accused judge, or indeed any member of the public, cannot be tried outside the court. It is a basic tenet of law that one is innocent until proven guilty.

Chidyausiku is conscious of the need to foster public trust. To achieve that, it is imperative that the judiciary is not seen as politically compromised. This observation has been confirmed by observer missions, including the United Nations rapporteur on Zimbabwe and the African Commission on Human and People’s Rights.

A mission from the ACHPR noted that the judiciary was not free from political interference.

“The mission was struck by the observation that the judiciary had been tainted and bears the distrust that comes from the prevailing political conditions,” its report said. “It appears that their conditions of service do not protect them from political pressure; appointments to the bench should be done in such a way that they (are) insulated from the stigma of political patronage,” it said.

Chidyausiku promised the same mission that a code of ethics for the judiciary was being drafted. Two years down the line the Ministry of Justice has not produced one.

To the general public, it appears the judiciary has consistently failed to uphold constitutional liberties, which are constantly under threat from President Mugabe’s government. Charges of misconduct against judicial officers do threaten the integrity and standing of the court. But this pales when compared to the damage the reputation of our jurists has suffered as a result of international condemnation of the bench arising from its handling of land-based litigation, electoral petitions and legal challenges to repressive legislation, especially the Access to Information and Protection of Privacy Act.

Where civil liberties are under threat the public looks to the judiciary for protection. It is therefore important that the judiciary is not seen to condone serious human rights abuses. There have been incidents of torture of suspects, abductions, and lengthy detentions without trial. To all intents and purposes, such victims of state abuse have not always found relief from a supine judiciary.

Our politicians would argue that the judiciary should be relevant to the prevailing political environment. But that is different from subservience to the state at the expense of justice.

Judges today work in an age when the world has come to cherish universal human rights. The world will condemn not only those committing serious human-rights abuses but also all those who condone or try to conceal these.
We recall in 1999 submissions by lawyer Jeremy Callow that police assaulted three Americans arrested at Harare international airport as they tried to smuggle guns out of the country. Callow said police applied electric shocks to their genitals while they were in custody.

The High Court acknowledged evidence that the suspects had been tortured while in police custody. In sentencing the Americans in 1999, the High Court said the evidence of torture constituted “special circumstances” for not imposing more severe sentences. The court sentenced the three men to six months in prison.

The state appealed against the sentence in 2001, although the men had already served their terms and left the country, saying the High Court should have given them a longer prison term. The state’s application was granted by the Supreme Court and the sentence was increased. Lawyers were quick to point out at the time that the Supreme Court verdict was tantamount to condoning the torture of suspects.

Judges must therefore understand the importance of human rights, not just to our dignity and economy but to the dignity of the court. Allegations of torture of prisoners and detained suspects have been on the increase in the past five years. There have been suspicious deaths, too.

As guardians of all our civil liberties and liberty itself, they will be watched — and judged.

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