IT boggles the mind that the judiciary, which should be the most venerable institution in our country can be so desperate as to accept “donations” from the Reserve Bank clearly in breach of all known constitutional and ethical principles.
It was reported with great delight by the Herald of August 1 that the central bank had “donated” a fleet of new vehicles, generators, sets of plasma screen televisions, and full sets of satellite dishes for the sitting judges to improve their conditions of service.
The report would shock any jurist who cares about judicial independence. The “donations” are unlawful and unconstitutional.
Firstly, the Constitution of Zimbabwe states clearly that the remuneration of judges should be charged on the Consolidated Revenue Fund.
It clearly states in Section 88 (1) that: “There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament.”
Parliament passed the Judgesâ€™ Salaries, Allowances and Pensions Act [Chapter 7:08] which empowers the president to set the conditions of service for the judges through a statutory instrument.
The Minister of Finance is required to review salaries, pension benefits and allowances payable to judges whenever an increase is to be awarded to persons employed in the public service.
This is obviously an unsatisfactory and unconstitutional delegation of power by parliament.
It leaves the judiciary susceptible to control by the executive through financial pressure.
Secondly, there is no relationship between the judgesâ€™ salaries and the salaries of civil servants. They perform different functions.
The responsibility to set the remuneration of judges in many progressive jurisdictions has now been given to commissions or bodies that are independent of the judiciary, parliament or the executive.
This achieves the necessary protection for judges from possible influence by the executive through the use of financial means.
Under the current constitution, the central bank is not the custodian of the Consolidated Revenue Fund. It does not run the treasury notwithstanding the grand-standing and improper splashing of state funds. Any payments from the consolidated fund must have statutory or constitutional permission.
Judges are paid from the treasury specifically because they are supposed to be independent.
The charge on the consolidated fund ensures that there are funds always available to remunerate them. Their remuneration must be paid by the state. This also removes the danger of parties or other over-zealous entities making payments to judges on shaky philanthropic grounds.
How the central bank and its zealots end up “donating” various luxury goods and trinkets to the judges is beyond me.
It sets a very dangerous precedent and poses a real threat to the rule of law, independence of judges and their impartiality. Their independence is the cornerstone of their impartiality.
It is the international convention that no judge should receive any payment for his judicial work except as provided for under the necessary legislation.
In other words, no matter how poorly-paid the judges maybe, Anglo-American Corporation or the Reserve Bank cannot pay them any salary or provide them with the necessities of life even if they are desperate.
That responsibility lies with treasury through the existing constitutional and statutory provisions.
The Latimer House Guidelines of the Commonwealth adopted with the full participation of Zimbabwe in 1998 provide under judicial funding that: “Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards.
Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary.
Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary. As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.”
It is the responsibility as the law stands of the president and the minister of finance to ensure that judges are adequately remunerated. Our judges are not and should never be a charity case.
The salaries and benefits of judges must be set at the right levels and be known publicly in the same way changes to presidential or ministerial salaries and allowances are publicly gazetted.
As Justice Francois-Beaudoil of Quebec, Canada observed: “When you are reduced to begging for a decent salary, how can you be truly independent?”
Judicial office is a matter of great personal and professional sacrifice. It is very important that the benefits attract the best legal brains without making it difficult for them to maintain their families, earn and live a decent lifestyle. The structure of salaries and benefits must reflect the dignity of the judicial office. As Winston Churchill put it decades ago:
“Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge.”
We must make the remuneration of judges attractive so that we can defeat any temptation to compromising by the judiciary. This will not only be intended to benefit judges but the greater benefit is to the administration of justice itself. And yet while there is unanimity that the conditions of service for judges need improvement, it does not mean that our judges must resort to luxuries delivered outside constitutional and legal imperatives. Even then, benefits that appear designed to suit farmers are in fact obscene. The 4×4 trucks have nothing to do with the judgesâ€™ ability to discharge their judicial function.
These so-called “donations” have heavily compromised the independence of the judiciary. How does a party who has a dispute against the Reserve Bank or its governor believe that he will receive justice from a judge who is watching a plasma screen powered by a generator provided by one of the parties? Judges are not required to be independent only.
They are required to be seen to be independent. Any perception that judges are in the pocket of one institution or a party to a dispute or that they have lost their ability to discharge their responsibilities without fear or favour, further harms the already tattered reputation of our legal system.
As it stands, all the judges who have received these donations are disqualified from hearing matters involving the Reserve Bank or its alter ego, “Our governor”.
You would expect those that demand high standards of corporate governance from bank directors to understand that a lot more is demanded of judges. The reputation of judges stands or falls on their moral authority.
If this “donation” practice is not nipped in the bud, what stops accused persons or litigants donating groceries, cigarettes, and sanitary ware, fertiliser, whisky and farmer boots to the obviously underpaid judges?
The honour and principles of human beings are put at the greatest test in times of hardship. It is at these times that those who are principled must suppress the obvious temptation of luxury to uphold and defend the principles and ethos of our legal order.
It is common in developing countries for judiciaries to receive donor-funding but that donor-funding is targeted towards the improvement of the institutions of administration of justice and not for the personal and family or farming comfort of judges.
The funding is provided for specific projects and the purchase of books and equipment.
The funding is secured from foreign entities and not from entities within the jurisdiction of Zimbabwean courts. This ensures that the independence of judges is not compromised by benefits received from potential litigants.
The funds are managed in a transparent manner and usually through a public trust. Proper donations directed at improving the administration of justice can do wonders.
When not done properly, they pose a serious danger to our constitutional values.
I therefore call upon the honourable judges to return the “donations” received from the Reserve Bank.
Any efforts to improve their conditions of service must be done in terms of the law as currently provided.
It remains for the individual conscience of each judge to guide them on whether they can serve their oath of office as required by the constitution while receiving alms from unlawful sources.
Should the learned judges not heed my call to return these unlawfully received luxuries, it is imperative for the Law Society to take legal action to protect the independence and integrity of the judiciary.
The only difficulty they will face is that if all the judges have received these luxuries, none of them will be allowed by law to hear this matter. This will necessitate the employment of possibly foreign acting judges to hear the challenge.
These judges will need to be paid in foreign currency.
The Reserve Bank (which has usurped the Minister of Financeâ€™s power as the Exchange Control Authority), who will certainly be one of the defendants together will all the judges in the case will not be friendly to this cause.
There are too many vivid lessons in history that the corruption of the legal system is the last act in the destruction of the rule of law, democracy and human rights. The independence of our judges is the foundation of our constitution, our rights and our freedom.
It cannot be compromised for personal comfort or political expediency. Once independent and impartial judges are gone, who will protect us?
By Tererai MafukidzeÂ :Â A lawyer. He writes in his personal capacity.