Alex T Magaisa
A STORY is told of one judicial officer in a certain African country. The man of the law was known to have a habit of demanding “a small fee” from litigan
ts appearing before him. The word was that he even had a “tariff” indicating the cost to a litigant of obtaining a favourable judgement depending on the type of matter.
To avoid detection during surprise inspections, the judge would deposit his illicit proceeds in the rubbish bin located his office. He would later collect the total proceeds at the end of the day. On this occasion, however, the office cleaner came earlier than usual whilst the good judge was in court. He collected the bin to dispose of the rubbish, whereupon he stumbled upon a substantial amount of cash. The cleaner could not thank his ancestors enough for this unusual generosity.
Upon his return later that afternoon, the good judge noticed that the bin had been emptied. He was not a happy man. He found the cleaner and a dispute ensued over the fate of the bin’s contents, which neither could mention in exact terms. A colleague who offered to arbitrate enquired into the subject-matter of the dispute. The judge claimed that the bin contained valuable “things” that belonged to him and the cleaner argued that it was not his business to verify the value of a bin’s contents before chucking them. A crowd had gathered to witness this extraordinary scene of a judge and cleaner fighting over a bin’s contents. A few who were familiar with the judge’s ways struggled to suppress laughter.
This may be an extreme illustration of the problem but cases of corrupt judicial officers are fairly common, especially in countries where the judiciary is generally under-resourced and judicial officers are poorly remunerated. But bribes do not always take the straightforward form. There is concern that they can be clothed in the form of gifts and other acts of charity to the judiciary.
Compared to last year, Judge President Rita Makarau’s speech at the opening of the 2008 Legal Year in Harare passed with limited media coverage. Last year’s unprecedented pleas for assistance on behalf of the judiciary drew widespread media interest. Even the Governor of the Reserve Bank of Zimbabwe was reported to have taken it upon himself to address the concerns of the forgotten arm of the state — assistance coming in the form of four-wheel drive automobiles, computers, etc.
A point picked from the otherwise diverse speech this year is that the judiciary appeared to be more complimentary, expressing gratitude to public institutions such as the RBZ to private organisations that had chipped in with assistance. That the pleas of the judiciary have been heard by members of society is surely to be applauded. But it is also not without question, not least because of the concern that gifts and alms can in some cases camouflage more sinister intents.
A very good reason why the remuneration of judges is drawn from the Consolidated Revenue Fund as provided for under the Constitution is that there is a definite and neutral source from which the judiciary draws its income. Of course, it would be preferable if the judiciary had total control of its budget. The provisions for judicial remuneration are designed to safeguard the judiciary not only from the arbitrary conduct of the executive but also from exposure to overtures of a commercial nature from both public and private persons, especially big business.
If there were other sources from which they draw their income, it would raise questions about its impartiality. Whether or not the other sources are well-intentioned is often immaterial – the very fact that they are seen to be giving gifts and alms to the judiciary creates wrong and dangerous perceptions about the judiciary’s capacity to dispense justice without bias, especially when the benefactors are potential litigants.
The problem is there is no real limit as to who among those other sources is acceptable as a donor to the judiciary. And where there is a limit questions are raised about the criteria. There must surely be great caution where the person (natural and artificial) is a potential litigant. The reality is that such alms can only come from the well-heeled members of society and corporate citizens that can spare resources. The indigent members of society have reason to feel uncomfortable, especially when they are locked in battles with these rich benefactors to the judiciary. It creates an unfortunate perception of promoting the “rule of money” rather than the “rule of law”.
Confidence in the impartiality of the courts is shattered when it is clear that one of the litigants is a large benefactor of those that sit in judgement. How can an employee of a bank that has donated lavishly to the judiciary feel at ease when he has an employment dispute with the bank? There was recent controversy in Botswana, when it was reported that the local entity of the large diamond multinational company, De Beers donated 100 000 Pula to the Botswana judiciary. At the time, the company was also locked in a dispute with the Botswana Mineworkers Union over the sacking of more than 400 workers. Such a gift may have been well-meant but one can see the concerns raised in those circumstances.
The problem, of course, is that the Zimbabwean judiciary is under-resourced, especially at the lower echelons of the system. It is not unusual for magistrates and prosecutors to be seen jostling with suspects and witnesses at commuter omnibus ranks. How those members are expected to dispense justice fairly and impartially when they are exposed to the temptations resulting from a penurious existence is very difficult to even imagine.
Members of the judiciary occupy an important role in society and they discharge a unique responsibility. It is, therefore, important that they maintain a standard of living that is both respectable and commensurate with their status. It is no secret that one of the main reasons why most senior, experienced and competent members of the legal profession are reluctant to accept judicial office is that the judiciary is financially under-resourced. As a result, the judiciary has long been deprived of more quality and experience that would greatly benefit justice delivery and the development of the law.
There are at least three ways to deal with this problem:
First, private persons or public institutions should be cautious not to promote a “gifts culture” among members of the judiciary. The line that separates genuine assistance from corruption is unhelpfully thin. They should be wary of creating impressions of currying favour with members of the judiciary;
Second, the judiciary should be take a careful approach to acceptance of these alms and gifts from various sources. Tempting though they may be, given the hardships the judiciary faces, one can never be sure of the wider intentions, not least the security breaches that may arise especially where information technology is involved. They have had similar problems more recently but I am advised that the Constitutional Court of South Africa has a way of dealing with this issue of gifts.
There exists a Trust, set up to receive the acceptable donations which are then channelled towards the Trust projects like furnishing the court library. The Trust Accounts are audited and available for public inspection and the trustees are drawn from a large pool of retired and sitting judges, practising lawyers, academics, accountants, etc. Having a structure with a public face can only be a good starting point.
Third and most importantly, the opportunity to give or the temptation to accept such gifts could easily be minimised if the judiciary is given adequate control over its budget and is adequately resourced by the state which is required to do so by the law.
Otherwise, if this “gifts culture” is left unchecked scenes such as that of the judge wrestling with a cleaner for the contents of a rubbish bin may easily become commonplace in Zimbabwe’s judiciary. The issue of gifts is particularly important as Zimbabwe prepares for crucial elections. One does not have to throw bones to predict that there will be electoral challenges before the courts of law in the aftermath of the elections. People will watch closely who is giving what to the judiciary. It also happens to be a key period for salary increases. Of great importance is the need to prevent the risk of promoting the “rule of money” in place of the “rule of law”.
* Dr Magaisa is based at Kent Law School and can be contacted at email@example.com or firstname.lastname@example.org