A number of junior legal practitioners have expressed a desire to write and publish reviews on judicial decisions.
They have, at the same time, expressed some apprehensions arising from the sensitivities such criticism and analysis might have in relation to contempt of court. Indeed, the subject of assessment of judicial decisions can be said to be currently topical in Zimbabwe.
Judicial decisions are not just important on the cases they deal with, but perform numerous functions, including that of setting precedents and shaping jurisprudence.
Given the importance of judicial decisions, it is hardly surprising that they are sometimes hotly contested and controversial.
The importance of a critical evaluation of judicial decisions cannot be over-emphasised. Judicial officers discharge an important public function. They carry enormous public power. A critical evaluation of their decisions and conduct is important to the development and clarification of the law.
There is a lot emanating from the courts that requires clarification. We should assist our judges build a legacy we can all be proud of. Furthermore, criticism ensures accountability for the public power exercised by the judicial officers.
We are perhaps fortunate as a country in that our judiciary has generally welcomed commentary on judicial decisions. The Chief Justice Luke Malaba highlighted the importance of such commentary on more than one occasion.
Legal practitioners and analysts should seize relevant opportunities to critique, analyse and debate judicial decisions to enrich processes of judicial decision-making and development of the law and legal system.
There are, however, safeguards aimed at protecting the independence, dignity and authority of our courts. Criticism of judicial decisions and judicial conduct is required to be factual, temperate and respectful. It must not be aimed at exerting improper influences on members of the judiciary. That would be inconsistent with the independence and impartiality of the judiciary and the dictates of fair trials. All comments with a real and substantial danger of interfering with the administration of justice have to be avoided.
A matter of balance
There has, consequently, to be a balance between exposure of improper conduct and incorrect interpretation of the law, on the one hand, and the independence, dignity and authority of the judiciary, on the other. As long as that balance is maintained, there should be no reason to be apprehensive about criticism of the judiciary.
Judges and media
The traditional justification for cautioning against statements made during pending proceedings is to isolate the jury from communications which carry a danger of exposing them to improper influences. This justification fell away in 1971 when the jury system was abolished in this country.
Most court hearings do not have assessors and at Supreme Court level, there are no assessors. There are no lay persons who sit in our Supreme Court. In the South African Law Journal of 1993 at Page 530, Lord Salmon was quoted by Craig Cleaver as having observed that: “If a judge is going to be affected by what is written or said he is not fit to be a judge.”
Similar sentiments were expressed by Lord Parker in R versus Duffy and Others, ex parte Nash, , QB 188 at 189 or 1960 Volume 2, All England Reports, 181 at 895 B to C when he stated that: “A judge is in a very different position to a jury man. Though in no sense a superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case.”
Dignity and authority
The dignity and authority of our courts is not served by protection from criticism.
Lord Denning recognised in R versus Metropolitan Police Commissioner, ex parte Blackburn Number 2, 1968, All England Reports, Volume 2, page 767 that: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say we are mistaken and our decisions are erroneous whether they are subject to appeal or not.”
As was observed by Lord Salmon in the Blackburn matter, the authority of our courts is not so frail that their judgments need to be shielded from criticism. The judgments often deal with matters of considerable public importance. He proceeded to point out that: “It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.”
Compare values half a century ago
The criticism, which was found by Their Lordships in the Blackburn matter not to found a contempt charge was more rumbustious than I normally see in our papers.
Their Lordships in that case found as way back as 1968 that it did not, in a democratic society, justify the exercise of the jurisdiction for contempt in that matter. The accused person had described the court’s judgment as “a strange example of blindness which sometimes descends on the best of judges”.
He pointed out that the court had rendered legislation unworkable, unrealistic and contradictory. He pointed out that after creating the mess, instead of apologising, all that the court could do was to attack the police for not enforcing the law which they themselves had rendered unworkable. He referred to the weaknesses in their decision and went so far as to advise the judges that “silence is always an option”.
Prosecutions are rare
It is indeed a significant fact that notwithstanding its long history, it was the first time that the House of Lords was considering an allegation of contempt in the form of scandalising the court.
The sentiments of the House of Lords were welcomed by a South African Court even during apartheid (See S. Van Nierkert 1972, Volume 3, SA 711).
Although that court did not and perhaps was not in a position to go further to consider the justification for the offence of scandalising the court in South African law, its comments were substantially similar to those of the House of Lords.
Scandalising a court or a judge generally regarded as obsolete
As way back as 1936, Lord Morris recognised in Andre Paul Terence Ambard versus The Attorney General of Trinidad and Tobago 1936, All England Reports Volume 1, Page 245, that the offence of scandalising a court or a judge had no relevance in a modern democratic and progressive state. He thought it could perhaps be relevant in small, backward, classist and racists communities.
In words which disclosed the racist, classist and colonial character of the offence, he said: “Courts are satisfied to leave public attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect of the courts.”
His Lordship’s excerption is, obviously, entirely repugnant to values Zimbabwe should aspire to promote. Therefore, all that can be taken from what he said is that the offence is obsolete.
Good judgments defend themselves
The independence and authority of the court are protected by the quality of its judgments and not the sanction of criminal action against those who express opinions which disagree, rumbustiously, with the opinions of Their Lordships.
If the opinion is good and a member of the public rumbustiously attacks it, it is the dignity and reputation of the critic which suffers in the eyes of right-thinking people. It is only if the criticism is appealing to the public that the authority of the court is threatened. Good judgments defend themselves.
No danger to the independence and authority of the court arises where all that one is dealing are matters of opinion in respect of which members of the public can agree with either the opinion of the critic or the opinion of Their Lordships.
It is respectfully submitted that it cannot be argued, in this matter, that the statement affected “the authority and independence of the courts.” The authority of the court is affected by statements of defiance of its orders and not criticism of its judgment.
It is a sad indictment on our profession, our academics and the media fraternity that we have not seen much commentary on our judicial decisions. It is not a healthy situation for the development and clarification of the law. It does not promote transparency, a value which is interwoven with the anti-corruption aspirations of the new dispensation in Zimbabwe.
Furthermore, it may tempt those with improper motives to take the lead in criticising the judiciary. That situation is a potential danger to independence, dignity and authority of our courts. In brief, it endangers the due administration of justice and the rule of law.
May our voices be heard.
Sternford Moyo is a senior partner in Scanlen & Holderness law firm.