The credibility, independence and competence of Zimbabwe’s judiciary will come under scrutiny next week when the Constitutional Court hears an MDC Alliance petition challenging the presidential election result declared by the Zimbabwe Electoral Commission.
Considering the self-evident importance of this high-stakes legal contest, nobody needs reminding that the whole world is closely watching the case to see whether the judges can exercise their constitutional mandate without fear, favour or prejudice.
Just like a free press, an independent judiciary is one of the cornerstones of a democratic society. To fully discharge its responsibilities, the judiciary must not be subject to the improper influence of other arms of government, particularly the executive which is notorious for tampering with the wheels of justice. Judges must be guided by the law and not pander to partisan interests.
A judiciary that lacks independence and impartiality loses all credibility in the eyes of the public and is a disservice to the national interest. An independent judiciary is vital in safeguarding the rule of law and due process in a constitutional democracy. Without the rule of law, society degenerates into chaos and disintegration.
While Zimbabwe’s judiciary has some distinguished jurists, whose judgements have been cited and referenced in leading journals, there has always been a concern about some judges’ willingness to act boldly and independently, especially when handling election petitions.
There are valid reasons for this apprehension. It will be remembered, for instance, that the late opposition MDC leader Morgan Tsvangirai filed a court petition against the 2002 presidential election outcome. The court case was dismissed, but the ruling has never been made public. It is such behaviour that erodes confidence in the judiciary.
In line with ethical principles, judges should ensure that their conduct — in both private life and in the discharge of their official functions — is above reproach. A compromised judge who flouts the law or engages in corruption is prone to manipulation by political overlords. Judges who also accept trinkets and other gifts from any quarter become compromised and conflicted. In recent times, there has been an outcry in civil society, as well as among lawyers in general that there appears to be a tendency by some judges to dismiss cases on technicalities rather than on merits. Faced with a tricky case, some judges look for an easy way out by dismissing it on technicalities. An election petition, given its importance, cannot be dismissed on mere technicalities. Every Zimbabwean has a right to fair justice administered by impartial and independent judges.
Judicial independence is not a privilege at the whim and caprice of politicians, but a constitutionally guaranteed pillar of democracy.
The taxpayer who pays the salaries of all judicial officers expects nothing but professionalism from judges and not politically convenient rulings. As they roll up their sleeves and get on with the tough task of hearing the election petition, the judges are expected to wear their jurisprudential wigs and not political hats. The world will be watching them. Judges must act in the best interests of justice, not politics.