THE executive and legislature branches of government are usually held to account by the people through various mechanisms, including periodic elections, to ensure they perform their duties or mandates to the expectations of the electorate.
Editor’s Memo with Dumisani Muleya
As for the executive branch, comprising politicians elected and appointed, they are constantly criticised and held accountable primarily, but not exclusively, by the opposition represented in the legislature.
The media and public play a critical role in this. This is as it should be in a reasonably free, democratic and civilised society. The cycle of confrontation and sometimes collegiality serves the government and country well.
However, the judiciary is somehow expected to be above all this — except where judges are elected — and thus immune to contentious engagement associated with the flaws of mere mortals.
Once upon a time, judges were clothed with an aura of infallibility and revered. The work of their institution was never questioned and not generally understood.
Lord Devlin’s observation comes to mind: “The English judiciary is popularly treated as a national institution, like the navy, and tends to be admired to excess”.
Although things have changed dramatically in contemporary England, in countries like Zimbabwe the work of judges and the courts still remains fairy mysterious.
The way judges are treated is still as if they are superhuman and infallible even if it is common cause, and obvious, they are not.
It is difficult to scrutinise them and hold them accountable because they sort of operate below the radar or behind the closet on a terrain not known or familiar to the public.
The field of jurisprudence is often out-of-bounds to the majority in terms of knowledge, understanding and familiarity. The public simply doesn’t have the capacity and skills to unpack and dissect legal concepts and judgments.
This provides judges — including lazy and incompetent ones — with convenient cover, a sanctuary or immunity from scrutiny; besides the Sword of Damocles they always precariously hang over citizens’ heads to prevent criticism of their conduct and output: contempt of court.
This is the context in which the ongoing quarrel over lack of delivery which borders on, and may very well be, incompetence between Chief Justice Godfrey Chidyausiku and senior judges, mainly High Court ones, should be seen and understood.
Chidyausiku stirred a hornet’s nest while opening the 2015 legal year on January 12 when he publicly complained about the poor performance of some judges, especially in the High Court. He made references to the whole judiciary and lambasted under-performers, suggesting some judges were so lazy that they only managed two cases the whole year.
His strong rebuke of non-performers provoked a vicious backlash on January 28 from 21 High Court judges who claimed they had felt “humiliated, dejected and despondent” by his “inaccurate and damaging analyses, impressions and conclusions”.
On February 4, a letter written by the 21 aggrieved judges was leaked to the media. Chidyausiku reacted, first through Judicial Service Commission secretary Rita Makarau, threatening stern measures against under-performers unless they improved.
Then on February 5, Chidyausiku personally responded to the January 28 memo fiercely attacking the judges, some of whom he said still has reviews dating as far back as 2008. He noted for the first time in history the High Court has a 700-case backlog in unopposed divorces, while also acknowledging some judges reacted positively to his remarks as shown by the delivery of 105 judgments since his speech.
Now in terms of separation of powers, judicial independence is key. Judges must be allowed to do their work without interference, fear, favour or prejudice, but they must be accountable.
It’s time Zimbabweans scrutinise the judiciary and hold judges to account. So many issues arise out of this and must now be addressed. Chidyausiku has set the ball rolling.