HomeAnalysisCandid Comment: Probe whole justice delivery system

Candid Comment: Probe whole justice delivery system

BY Nevanji Madanhire
THE number of judges who have come under scrutiny recently is a cause for concern for it points to the possibility of deep-rooted corruption in the justice delivery system.

In this issue, we report that High Court Judge Justice Webster Chinamora has been brought before the Judicial Service Commission (JSC) Ethics Advisory Committee, which is probing the way the honourable judge handled a case between Delta Corporation and a South African company, Blakey Plastics.

In the recent past, several other judges have been dismissed from JSC, notably Supreme Court judge Francis Bere and High Court judge Erica Ndewere.

The corruption of highly esteemed individuals, such as judges, who sit at the apex of the justice delivery system, not only undermines the public’s confidence but tarnishes the country’s image globally.

As one of the three pillars of our governance system, the public looks up to the country’s judiciary as the final arbiter of every conflict that affects the general populace.

The world at large, in its analysis of any country’s progress as far as the rule of law is concerned, looks at how independent the judiciary is in its conduct.

The JSC should not just look at the apex but must also probe corruption at the lower courts where many people claim it is rampant.

In the past few weeks I personally have come across a case with so many anomalies that it demands a probe. A man goes to the magistrate courts as a state witness and emerges as a convict. You may say that is possible, but let us look at the anomalies.

First, there was no application to the court, as is constitutional, that the witness now changes to a suspect. The country’s constitution demands that a witness can only turn into a defendant through such a court order.

Second, the now-suspect is tried without a Criminal Record Book (CRB). The CRB is often referred to as the docket. The importance of this document in any criminal proceedings is indisputable; it is the pith and fulcrum of any trial. The docket is opened by the police after they finalise their investigations and are satisfied that the matter must go to prosecution. The decision to prosecute can only be made by the police, not by the public prosecutor.

Third, the CRB must contain a warned and cautioned statement. In this case there is no such statement.

And, fourth and most curious, the prosecutor commands the Clerk of Court to generate the CRB after the state witness-cum-defendant has been convicted. This is to facilitate that the Prison Services can put him into remand for they cannot incarcerate a person without a CRB. No precedent exists where a docket is opened after a defendant has been convicted.

This is a straightforward case where the defendant was not fairly or procedurally before the courts and needs a review of the whole trial.

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