Comment: Courts not Serving Interests of Justice

THERE is no hiding the fact that the there is an unhealthy friction between the judiciary and lawyers.

The nature of this friction is captured in Judge-President Rita Makarau’s speech to open the 2009 legal year, and the response by Law Society of Zimbabwe president Beatrice Mtetwa which we carry in this edition.

Justice Makarau referred to “unfair attacks” on the judiciary by lawyers which she said showed “lack of respect and utter contempt” for the judiciary.

She also pointed out that “a few of us judges and legal practitioners had allowed transient politics of the day” to affect the relationship between the legal profession and the bench.

She did not say which judges had been affected by the transient politics on the bench, but did more to show how lawyers had become political and were acting at variance with the tenets of the profession.

There is plenty of evidence that there is a problem in the execution of justice in this country. This sad state of affairs does indeed stem partly from the politicisation of the bench and the legal profession. But we believe that the judiciary cannot blame lawyers before serious introspection of its own output.

It is true that there are now Zanu PF lawyers and those deemed to be pro-MDC. It is also true that there are honourable members of the bench whose utterances, demeanour and decisions have placed them in the ranks of political creatures.

The most competent jurors in the efficacy of the bench are the public who approach the courts seeking justice. We do not believe that the bench has of late  demonstrated the requisite aptitude that builds confidence in the public.

Indeed it is most unfortunate that we now have a situation where the public approaching the courts for justice do so with trepidation.

They do not believe justice will be served. Today, if the truth is to be told, no white farmer would approach a Zimbabwean court with confidence to seek justice in a land ownership dispute. Experience has been their best teacher.

Justice Makarau in her speech on Tuesday spoke of what seemed like “the hand of providence” in the almost equal distribution of electoral petitions from political parties.

She said the lawyers were “abandoning their training and ethics and were simply following the instructions of their clients even when they were convinced that such instructions were wrong”.

Can lawyers and dispossessed farmers also not turn around and allege similar predictability that has been a factor in the conduct of the judiciary when handling cases involving land reform?

Then there is also another disturbing trend which Makarau briefly alluded to: the failure by the courts to clear their ever-increasing backlog of cases.

There are always excuses for the backlog ranging from staff shortages, lack of stationery, and lately we have heard of the extra burden on the judiciary brought about by the electoral petitions.

Meanwhile, many judges are busy with their farms and other businesses.

People’s rights are being trampled on here. Prisons are teeming with suspects on remand because courts have failed to deliver justice timeously.

The statistics presented by Justice Makarau show a huge accumulation of criminal reviews which have not been dispensed with.

Decisions of the inferior courts are subject to review by the High Court which can quash a sentence or reduce it if it deems the lower court to have erred.

The large number of cases awaiting review means there may be hundreds of prisoners who should have been freed.

There are also prisoners who have been on death row for more than two years as their cases cannot be taken to the Supreme Court on appeal because the High Court is yet to transcribe court records, or the records have gone missing altogether.

The delays in delivering justice has resulted in the country’s jails teeming with prisoners on remand. As a newspaper, this is a subject we will be pursuing vigorously soon with a view to exposing the blatant violation of individuals’ right to freedom.

There have also been inordinate delays in the completion of civil cases with severe social and economic repercussions to the litigants.

In Bulawayo this week during the opening of the legal year, Deputy Chief Justice Luke Malaba said dispossessed commercial farmers should not have taken their case to the Sadc Tribunal before exhausting local remedies.

He revealed that the farmers had made an application to the Supreme Court in March 2007 challenging compulsory acquisition of their properties.

“The applicants had not exhausted all remedies … as the Supreme Court was still to make a determination of the matters raised by the application…” said Justice Malaba.

Has the Supreme Court handed down judgement on this case yet, we want to know?