Alex T Magaisa
A RECENT media article by a colleague, Tererai Mafukidze, raised pertinent issues on the protection of judicial independence in the wake of the appointment of Judge
Bharat Patel as Acting Attorney General (AAG) of Zimbabwe. Mafukidze argued persuasively about the technical shortcomings casting doubt on the legality and constitutionality of that appointment.
This article adds some perspectives on those issues and argues that the handling of this matter (including the suspension of the incumbent AG) raises questions of public interest in the administration of justice. Why, it has to be asked, would a judge of the High Court leave the apparent security of judicial office to take up what is effectively an insecure job vulnerable to the vagaries of politics?
First, the redeployment of the judge to an executive post undermines the judiciary as an equal and independent arm of the state. Judicial independence requires that judges are properly rewarded so that they are not imperilled by executive tyranny. Security of tenure, guaranteed by the Constitution, is a foundation stone of judicial independence. Although the Constitution contemplates that the AG has similar qualifications as a judge, the protection and privileges attendant upon judicial office give it superiority.
When, therefore, a judge leaves judicial office to take up a seemingly inferior executive office that is open to political control, it does raise serious questions about the state of the judiciary. It is no secret that the judiciary is penurious, as last year, the Judge President Makarau publicly pleaded on behalf of the judiciary for pecuniary assistance. Judge Patel’s acceptance to cross the floor gives further credence to concerns that judicial office is so less rewarding that judges are prepared to give up their Constitutional privileges to join the executive arm of the state.
More significantly, the fear is that the redeployment of sitting judges to executive positions might become a habit and could be perceived by the public as a form of reward to pliable judges. In such circumstances, legitimate fears arise that in order to gain such a “promotion” from judicial office to the executive, a judge would have to tow the line. Whether or not such a perception reflects reality, it does great harm to the reputation of the judiciary as a fair and impartial forum for dispute resolution. It also undermines public confidence in the administration of justice. The responsibility is both with the executive to desist from making such redeployments and also with the judges to exercise caution prior to accepting such offers.
Second, the redeployment of a sitting judge to the AG’s office results in a multi-headed creature that is prone to perceptions of unfairness in the justice delivery system. It is, at least morally, questionable for a single individual who, one day sits as the prosecutorial chief and the next day, wears a wig and gown to sit in judgement of others. This flip-flopping between judicial and prosecutorial offices does harm the institutions of justice. Principles of natural justice consist of two essential elements: right to a fair hearing and the rule against bias.
Unless clearly stipulated under statute, an individual cannot hold office which permits him to investigate, prosecute and make decisions against others. Even if it is unlikely that Judge Patel will use all three powers simultaneously, the fact that he holds two offices that enable him, potentially, to exercise those powers, creates an unfortunate perception of structural unfairness. In any event, natural justice requires that justice must not only be done, but must be seen to be done. This requires clear separation of individuals and institutions in the justice delivery system.
Third, the appointment of a judge to the post of AG places him in a risky position that is likely to soil his public reputation. It is well known that the AG serves both political and legal functions. By its nature, the office of the AG is a risky and controversial institution, which can adversely affect the reputation of the office-holder, not least if that person holds judicial office. The office of AG in Zimbabwe has generally followed a highly political path.
It is easy for the incumbent to be placed in a situation of conflict between the demands of his political appointers and the demands of his role as the chief law officer, which issue is also at the centre of the suspended AG’s troubles. It may be argued that Judge Patel has faced these challenges before when he has previously held the office of the AG, but that was before his appointment to judicial office. Taking up the same post when he is holding judicial office and has sworn to the judicial oath makes his current position totally different.
The fact that the AG is appointed by the President and is a member of the cabinet and therefore, forms part of the executive is itself, a controversial arrangement, which compromises the AG’s independence. To the extent that the AG’s independence is compromised in this way, it is inappropriate to have a person holding judicial office being appointed, even in an acting capacity, to the AG’s office. This is particularly significant, if that person has not resigned his judicial office and there is a possibility of future reversion to his role of judge.
Fourth, there is a further technical aspect that casts doubt on the legality of the appointment. The Constitution provides for the appointment of the AG and in addition, one or more Deputy AG. Under Section 76(13) of the Constitution, in the case of a vacancy or where the AG is unable to perform his duties, the President is entitled to designate a Deputy AG to act as the AG. It seems clear that an acting AG can only be appointed from one or more of the Deputy AGs.
The law does not provide for the designation of any other person, besides the Deputy AG, to be an acting AG. Judge Patel is not a Deputy AG. The basis of the designation of a High Court judge as AG is not immediately apparent from the provisions of the Constitution. The executive probably has a good reason but this has neither been shown nor explained to the public, leaving room for unhelpful speculation.
Next, it seems reasonable, that any person taking up the AG’s position should have regard to the immediate circumstances appertaining to that office. The suspension, in controversial circumstances, of the incumbent, is a factor that one ought to consider. Whilst a Tribunal has been set up to investigate the matter, there have long been suspicions of political meddling leading to the perception that the AG’s office is an institution that is already soiled by that controversy. Perceptions have also been created that the executive wants to have an AG who will toe the line. With due respect, it follows that the public is likely to think that the person that is appointed is not his own man. This harms the individual’s otherwise impeccable reputation and the institution that he represents.
Additionally, an external factor to consider, though not of Judge Patel’s making, is the nature of the Tribunal set up to deal with the suspended AG’s case. It is interesting to note that two of the Tribunal’s members are serving judges of the High Court, that is, they are fellow colleagues of Judge Patel. It is quite sobering to think that if Judge Patel had not been appointed AAG, he might well have been one of the members of the Tribunal, sitting to decide the fate of the suspended AG.
That such a possibility can be entertained in such a serious matter involving an important constitutional office, must, surely, give rise to concern over the structural fairness, credibility and impartiality of the Tribunal. Perhaps having appointed a member of the High Court to replace the suspended AG, authorities should have considered picking retired or foreign judges, not fellow judges of the person who has replaced the subject of its investigation. Even Section 87 of the Constitution, which provides for a Tribunal to decide the fate of a judge, contemplates that its members would be persons who have held judicial office in Zimbabwe. Alternatively they may be holding or have held judicial office in a foreign country with similar legal traditions. The difference is that a serving judge can be appointed but only if he is from a foreign jurisdiction. It would be absurd to have a serving judge in Zimbabwe sitting to decide the fate of a fellow judge.
The President has appointed a Tribunal, presumably to ensure a fair hearing for the suspended AG — but he may have exposed it to the probability of a review on grounds of lack of impartiality because of this and related circumstances.
Finally, the appointment of serving judges (Judge Bhunu and Judge Kudya) to the Tribunal presents a potential problem should the suspended AG decide to challenge their decision/recommendations on review. The High Court is entitled to handle such a judicial review. The Tribunal is not sitting as a High Court and therefore its decision is not binding on a judge of the High Court. However, there is an anomalous situation where a single judge of the High Court may be required on the basis of the challenge, to sit and review a decision/recommendation of two serving judges at the Tribunal.
This situation creates the impression that the reviewing judge could be in a difficult position to impartially consider and review the decision/recommendation of two colleagues with whom he serves at the same level of the judicial hierarchy. Normally the decision of two judges would bind the single judge. With due respect to the judges, the arrangement provides room for the subject of the decision to challenge its procedural and structural unfairness. This is a situation that could quite easily be avoided.
The redeployment of Judge Patel does not help the administration of justice in Zimbabwe. What is worse is that it could have been avoided. Otherwise, it’s a sad indictment on the legal profession that the executive had no option among the ranks of the profession but to switch a serving judge to take up an important executive post. This has produced an absurd circumstance, in which a fellow lawyer appearing in court against Judge Patel, acting for the government, might be forgiven for wondering whether to address him as a “Learned Friend” or as “Your Lordship”! It is up to the profession’s representatives to challenge what appears to be an unconstitutional and morally reprehensible appointment.
* Dr Magaisa is based at Kent University Law School and can be contacted at email@example.com or firstname.lastname@example.org