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Judges’ avoidable conflict of interest

A STORY in Wednesday’s NewsDay raises an issue about the problem with our electoral landscape, but more generally about the manner in which we have treated and compromised the institutional framework of the state.

Alex Magaisa

The story tells us that Justice Rita Makarau is the acting secretary of the Judicial Services Commission (JSC).

But Justice Makarau is also the current chairperson of the Zimbabwe Electoral Commission (Zec), the body that administers and supervises the electoral system in Zimbabwe.

The JSC is a constitutional body that deals with matters affecting the judiciary. Part of its constitutional functions in terms of Section 190 of the new constitution is to advise government on matters relating to the judiciary or the administration of justice, and to promote and facilitate the independence and accountability of the judiciary.

In order to run its affairs, the JSC has an administrative arm. This administrative arm is headed by a secretary.

It is this position that Justice Makarau held while she was a judge of the Supreme Court, before she was appointed to be the chairperson of Zec.

And now we learn that she is still the acting secretary of the JSC.

I have nothing against Justice Makarau — she is my former teacher and I like to think we have a sensible, respectful and professional relationship — but with respect, this situation in which she is both chair of Zec and acting secretary of the JSC cannot be right on many levels.

Principally, as a body that deals in highly contentious terrain, Zec is highly exposed to litigation before the courts.

It is true, in fact, that even at this moment, there are various electoral matters that are pending before the courts.

Such cases might require judges to make pronouncements about her position and conduct as chairperson of Zec.

And yet the chairperson of Zec is also the same person who, as secretary of the JSC, handles the administrative aspects the judiciary — which include dealing with conditions of service for judges.

In this particular case reported by NewsDay, the new judges are demanding farms from the state as part of their conditions of service and Justice Makarau, as acting secretary of the JSC, is handling the matter on their behalf.

They will get the farms, thanks to the facilitation of the acting secretary of the JSC who is also the chairperson of the country’s principal elections body.

This is not to say that these things have actually influenced the judges or will influence them in the way they handle matters involving Zec. It is not even to say that Justice Makarau is incapable of doing her job, no. She is an honourable lady.

But perception matters in these matters. The mere fact that her holding these two positions raises a potential of doubt; the possibility of a perception that individuals may become corrupted by such situations is damaging to both the judiciary and Zec as institutions of the state that are supposed to be independent, but also it does no good to the reputation and standing of the individuals concerned.

The whole point of creating the JSC was to ensure there is administrative independence for the judiciary. This is compromised if a person from another body comes in to preside over its administration. That is why a serving judge is appointed as the secretary of the JSC.

With so many judges on the bench, why can’t the JSC select a new person to take over as their secretary?

Why should they place Justice Makarau in this invidious position which compromises the dignity of her office as Zec chairperson and creates negative perceptions about the judiciary when it handles matters affecting Zec?

Practising lawyers will find it hard to raise these issues with the judiciary for fear of being accused of maligning or disrespecting the judiciary, but there must be serious doubts among them and this situation cannot give them comfort.

On her part, Justice Makarau needs to look at it carefully and choose where she really wants to be: with Zec as its chairperson or with the judiciary as secretary of the JSC.

It is not right that both posts should be held by one person. It creates potential for conflicts that can easily be avoided.

We know that the appointment of a serving judge to Zec does not mean one has to resign as a judge, but there is a good reason why one cannot perform his/her functions as a judge while he/she is chairing Zec.

It is to avoid these compromises. If, therefore, one cannot perform their judicial functions while they are chairing Zec, it must follow, on the same rationale, that they cannot be secretary of the body that administers the judiciary.

They might as well sit in judgment of their own cause. If Justice Makarau cannot sit as a judge while she is Zec chairperson, surely, she can’t be running it as acting secretary of its administrative arm.

It is possible that poor remuneration and conditions of service of commissioners at Zec has resulted in this situation where its chairperson now has to moonlight as an officer of another commission.

This is not fair on her and her office and indeed on the other commissioners at Zec and other commissioners.

If this is the case, which is quite likely, then the state must work to address the conditions of service of all commissioners, otherwise there is no point thinking that they are independent when their impecunious circumstances forces them to take up other shifts elsewhere. What else could they be doing that we do not know — just to make ends meet?

Magaisa was legal adviser to MDC-T leader Morgan Tsvangirai. He can be contacted on waMagaisa@yahoo.co.uk

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