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Judges must be accountable

THE worst form of injustice in any civilised society is an injustice perpetrated through the judiciary — that third arm of the state entrusted with judicial responsibility.

Tererai R Mafukidze and Maureen S Shonge

Courts are expected to provide respite and not exacerbate injustice. Justice’s delays are almost always human caused. Our judges must earn the moral authority and justify the faith Zimbabweans have placed on them, through professional and ethical conduct.

Opening the 2015 legal year last month, Chief Justice Godfrey Chidyausiku decried the poor performance of some members of the judiciary, especially in the High Court ranks. This strong rebuke and call for better performance was accompanied by the naming of judges he considered to have performed well during 2014. It sent shockwaves across the legal fraternity.

On February 4, a letter reportedly written by 21 aggrieved High Court judges on January 28 before being sent to the Chief Justice via the Judge President was leaked to the media.

In the letter, the High Court judges wanted the Chief Justice to correct “the wrong impression created” and repair the damage inflicted on their reputation and dignity by placing all relevant information in the public domain.

What makes this a curious accusation is that the majority of the High Court judges were appointed while the Chief Justice chaired the Judicial Service Commission (JSC) which recommended appointment. But that does not exclude possible appointment mistakes as the recent sets of interviews have revealed. Maybe the judges conflate issues. One may be appointed on merit and yet be dreadful in performance. Some judges are never promoted from High Court ranks owing to poor performance post-appointment.

The Chief Justice has suggested a period of probation for new appointees before confirmation. This would be dangerous to judicial independence as judges under probation lack security of tenure and may therefore be pliable in order to improve confirmation chances.

What our focus should be is to improve the selection process, and tie up performance management systems. Appropriate disciplinary action must be invoked for those who fall below acceptable standards of performance.

On same day, February 4 when the letter was sent to him, the Chief Justice responded through the JSC at a special press conference. This response was given by the chairperson of the Zimbabwe Electoral Commission (Zec), who also doubles up as acting secretary of the JSC, Justice Rita Makarau. Zec, being a frequent litigant before the courts, the chairperson’s dual role is constitutionally problematic.

Furthermore, Zec appears to be struggling to fulfil its constitutional mandate and therefore requires greater hands-on focus.
Makarau announced that the Chief Justice would not be deterred by complaints raised by some of the judges he singled out as lazy. She defended the performance assessments and disclosed that the criticism had immediately bore fruits as Chidyausiku had already started observing an improvement in the judges’ performance.

Firstly, we should not simply celebrate numbers. Quality is very important. Our legal system is based on judicial precedence. Judgments must be well thought-out and speak to the issues decided. Judgments of higher courts also provide essential guidance to lower courts.

Secondly, the revelation that there could be judges who were sitting on review records for up to seven years is scandalous. Such cases are not matters for indirect rebukes. Firm disciplinary action is necessary. But that kind of dereliction of duty is not new. It was rumoured a few years ago that one judge at some point sat on 200 review files for years.

Reviews are meant to correct errors committed by lower courts. If these files lie unattended for long, they pose the real danger that wrongly sentenced or convicted people will wallow in jail for no reason awaiting intervention by a lazy judge.

This is a denial of justice and a clear affront to the judicial oath. Such serious dereliction of duty deserves the most severe of censure. Judging from the response, delinquent judges have been coasting along comfortably.

However, the nature of the public response of the Chief Justice delivered via Makarau is worrisome.

If the High Court judges have genuine grievances, the JSC as a constitutional body must address them. The constitution requires the JSC to conduct its business in a just, fair and transparent manner.

Threat of disciplinary action in response to complaints yet to be investigated is not the way to deal with the situation. It heightens tensions. With the Chief Justice himself embroiled in this matter, this will potentially cause more difficulties.

It has also been reported that Justice Custom Kachambwa of the Gweru Labour Court has written to the Chief Justice after he was criticised over delays in disposing of cases. Justice Lawrence Kamocha, the most senior judge at the Bulawayo High Court, also made a speech while opening the Gweru High Court circuit, in which he complained about the excessive volume of work that the five judges in Bulawayo have to carry. It was clearly a response to the Chief Justice’s public rebuke.

It cannot be seriously disputed that 35 years after Independence, the failure to create permanent high courts in Mutare, Masvingo and Gweru is a major disservice to a big part of the population. With the sudden surge in interest in appointments to the High Court bench, it should not be difficult to set up new high courts. This matter requires urgent attention.

It is most regrettable that the tensions in judicial ranks are likely to continue and may result in embarrassment on both sides. The Chief Justice is right to demand performance, but the cry by other judges seems to be that measures employed to judge performance must be clear, transparent, fair and objective.

The spirit of collegiality among judges often ensures that tensions and quarrels in judicial ranks remain dignified and private. The apparent unrest in judicial ranks is a positive development. It is a great moment in our legal history that we have at last reached a point where judges are quarrelling about their performances.

That rare public event is probably the most important heritage from this embarrassing drama. Our brief is not to judge the judges, though this is probably the most appropriate occasion to employ the aphorism: judge and be judged.

Judges are rarely called upon to justify their performances. They are often perched on high pedestals shielded from the prying eyes of public democratic accountability. That state of affairs has gone on for far too long and is very dangerous.

It eats at the heart of our constitutional democracy. As the then Chief Justice of South Africa, Ismail Mahomed said of judicial power: “Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power, but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary, but there is no effective constitutional mechanism to police the abuse of judicial power.

It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”

Constitutions have been fashioned over centuries with detailed provisions intended to force the executive to account to the nation through elected representatives.

The elected representatives themselves have to account to the nation through regular elections. Notionally, those who do not perform well are replaced regularly through free and fair elections. This process of accountability is unknown to the judiciary — traditionally for good reasons. Judges are not elected. They have secure tenure. They serve the constitution and the law, which they must apply without fear, favour or prejudice.

Judges are often shielded from criticism. Yet, as has been said, justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary souls.

In exercising judicial authority, judges wield immense power. For example, judges have the power to declare a law passed by an elected parliament unconstitutional and therefore invalid. They can set aside unlawful decisions of the executive. They can issue the death penalty. They can deprive a convict of freedom for life.

They decide disputes that concern huge sums of money. Their decisions determine the status of persons. They are upper guardians of all minor children. For these and many other decisions, judges account to no one for their decisions.

In the last 25 years, therehas been a growing disenchantment with the absence of adequate accountability mechanisms. Judicial officers, like other human beings, can and do abuse the power of their offices. They sometimes fail to live up to the performance standards required of their offices.

The problems of delayed judgments, judges avoiding work, judges avoiding sensitive cases, judges throwing out urgent cases, have allegedly been in the system for many years. The handling of high-stakes electoral cases and delays in finalising some of these have in some instances attracted muted criticism of judges.

The legal profession and the litigating public have been complaining without much response or improvement. We scrutinise judges based on their written judgments. The failure to deliver written judgements in high-stakes elections-related cases has caused a lot of disgruntlement.

Some legal practitioners and litigants who have dared to complain about delayed judgments have received indirect threats of contempt of court prosecutions for their efforts. Delays in handing down judgments destroy the public confidence in the judiciary.

The last people who should deny justice through delays are judges.
The trouble is that the problems are not restricted to the concerned judges. They even infest the Supreme Court, and the newly created Constitutional Court.

Just a few weeks ago, we came across a judgment by a five-judge bench of the Supreme Court in a case heard in 2011. Judgment was delivered in 2014 — three years and three months after. There is a growing practice in which the highest court issues orders and promises reasons. The reasons then take an inordinate time to be delivered.

The Law Society of Zimbabwe has already highlighted this problem. Judgments are written particularly for the party who loses. It is important that the party who comes second receives a prompt explanation of the decision arrived at by the court. These delays cannot be right.

Some judgments in the High Court have been outstanding for years. One lawyer has been waiting for judgment in a matter heard four years ago. The introduction of the Judicial Code of Conduct in 2012 was a welcome effort. It requires that judgments be handed down in less than 90 days. But this seems to be ignored by many judges at all levels.

The new constitution reveals a committed shift from the days of an imperious unaccountable judiciary. We are now in the world of open and accountable exercise of public power. The constitution expressly reminds the judiciary that its judicial authority “derives from the people of Zimbabwe”, a point readily acknowledged by the High Court judges in their letter to the Chief Justice. Acknowledging judicial accountability, the judges stated: “This reminds judicial officers that, judicial authority and with it judicial independence, exist for the benefit of the judged and not the judges.”

Judicial officers are required to strive to enhance their independence in order to maintain public confidence in the judicial system.

For the public to have confidence in the judiciary, its members must have skills and qualities of a high order. They must, according to Justice Brennan, have “unquestioned integrity of character, human understanding, intellectual capacity especially in analysis, knowledge of the law, social awareness, wisdom, patience, industry and a willingness to expose one’s every judicial word and action to public observation and comment”.

What the country needs is an urgent, honest and open discussion about problems in the judicial system. If judges do not, as collective, quickly realise the deep frustrations that the general public has with the legal system, the legal system is in peril.

The problems did not start in 2014. As way back as in 1993, former Chief Justice Anthony Gubbay had to issue a practice directive on delayed judgments. The problems do not reside only in the courts criticised by the Chief Justice. They run from the lowest to the highest court in the land.

The complaints by the High Court judges about low pay and conditions of service need to be considered seriously. The setting of the conditions of service and the levels of pay must be transparent. But judges, many of whom were allocated land, need to tamper their expectations with reality.

They cannot earn what is disproportionate to the burdens that Treasury can carry. We live in difficult financial times. The reputation of judges will suffer incredibly should they earn exorbitant sums disproportionate to the levels of pay the country can afford for public officers. Thrift is a necessity. We do not want to ever see again the Reserve Bank or any other state institution outside constitutional charges on the Treasury “donating” personal benefits and luxury goods to our judges.

As former British prime minister Winston Churchill put it: “Our aim is not to make our judges wealthy men (and women!), 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.”
Judges being human like all of us also have many shortcomings.

Progress starts with that acceptance. Constitutional compliance is achieved by honest efforts to live up to the judicial oath to do justice promptly to all, irrespective of status.

Mafukidze and Shonge are lawyers. They write in their personal capacity.

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