COURT WATCH 1/2023
[27th January 2023]
Opening of the 2023 Legal Year: Theme –
“Promoting competence and quality of service to enhance
public confidence in the judiciary”
On Monday 9 January 2023 Chief Justice Luke Malaba delivered his speech for the official opening of the 2023 Legal Year in Harare [link] reflecting on the major achievements and challenges relating to the discharge of the Judiciary’s and the Judicial Service Commission’s constitutional obligations.
The Chief Justice presided over the main ceremony in Harare, with other Constitutional Court judges and the Judge President of the High Court presiding over opening ceremonies in other provinces across the country: Deputy Chief Justice Elizabeth Gwaunza in Bulawayo [link]; Justice Rita Makarau presided in Masvingo [link]; Justice Paddington Garwe in Mutare [link]; and Judge-President Justice Mary Dube in Chinhoyi [link]. All the speeches are now available for downloading on the Veritas website at the links indicated.
The theme for the official ceremonies was: “Promoting competence and quality of service to enhance public confidence in the judiciary”. This bulletin summarises the Chief Justice's speech.
Independence of the Judiciary
Section 164(1) of the Constitution of Zimbabwe states that courts are independent and are subject only to the Constitution and the law, which they must apply impartially, expeditiously, and without fear, favour, or prejudice. Section 164(2) specifically requires "Members of the judiciary, individually and collectively, [to] respect and honour their judicial office as a public trust and [to] strive to enhance their independence in order to maintain public confidence in the judicial system". The Judicial Service Commission is required by section 190 of the Constitution to conduct its business in a just, fair and transparent manner. The need to ensure public confidence and trust in the judicial system is undoubtedly one of the reasons why the Judicial Service Commission must act in a just, fair, and transparent manner. Similarly, Justice Malaba said, when the National Prosecuting Authority [NPA] exercises its mandate to decide whether to prosecute a matter or to decline to prosecute a matter, this is a mandate provided for in the Constitution and it is improper for other institutions, including the Judiciary, the Police and the Zimbabwe Anti-Corruption Commission, to attempt to interfere with the NPA’s decision.
Judiciary the Last Line of Defence in the
Protection of Fundamental Human Rights
The Chief Justice told those present in Harare that the Judiciary was the last line of defence when it comes to the protection of fundamental human rights. Where the Judiciary makes a decision on a matter, whether it is the granting of bail or refusal to do so, or whether it is the conviction of a suspect or his or her acquittal in criminal proceedings, it would be highly improper for other institutions to purport to interfere with the process or make extra-judicial comments imputing corruption in the Judiciary. Whilst cooperation between State entities is encouraged to enhance efficiency in the criminal justice system, the independence of the Judiciary must be respected, consistent with the dictates of the constitutional doctrine of separation of powers.
Fight against Corruption
Failure to deal with allegations of corruption in the courts may result in the loss of public confidence in the criminal justice system. It is equally important that the public is given accurate information on the matter. Currently there are 147 corruption related cases pending in the courts. Of these cases, 89 cases are either in progress or have been finalised, with 16 cases having trial dates, whilst for 52 trials have commenced. A total of 21 cases have already been finalized, according to Justice Malaba.
Chief Justice Malaba said these statistics from the Anti-Corruption Courts show that arresting agents and prosecution agencies are busy at work. They also show that the courts are dealing with these cases actively when they are brought before them. These remarks were made to quash the idea that there is no activity in courts in respect of corruption cases:
“The cynical suggestion has been that courts are involved in a conspiracy arrangement with the other State agents in the criminal justice system to release persons accused of corruption in what is called a “catch and release” phenomenon. When a person has been arrested, he or she is entitled to bail as of right unless there are compelling reasons not to grant bail. When a person accused of a crime is released on bail, this is a legal and constitutionally provided for process, not to be derogatively dismissed as a “catch and release” procedure,” he said.
He added that a person who has gone through the criminal proceedings and is released on acquittal cannot be dismissed as a “catch and release” case. The Constitution guarantees a fair criminal justice system.
Unjustifiable attacks on the judiciary
The Chief Justice bemoaned unjustified attacks on the judiciary, adding that the performance of judicial officers was generally good. He said the common source of criticism received emanated from litigants who would have had court decisions made against them:
“The tendency is to blame lack of judicial competence for the loss. At worst, they allege corruption. Whilst the tendency to blame a judicial officer for a negative decision is understandable in the cases of self-actors who may not be aware of the available legal remedies for redressing the perceived wrong, it becomes a cause of concern when a legal practitioner, who is an officer of court, is involved.”
Whilst constructive and measured criticisms of court decisions are welcome and encouraged as they add value to jurisprudential development, the Chief Justice said that “no value is added to the justice delivery system from scandalous attacks on the integrity of judicial officers”.
Complaints from the members of the public to the JSC
The Judicial Service Commission received hundreds of complaints from members of the public, legal practitioners and other Government agencies during the course of the year. During the year under review, 322 complaints were made by persons who in one way or another had contact with the courts were received. The policy, according to Justice Malaba, is that each complaint must be properly investigated and the complainant given feedback without delay. Whilst some of the complaints related to grievances against decisions made by the courts which can only be dealt with in terms of court processes, those that had merit were attended to and remedial action taken.
The Judiciary, through the Judicial Service Commission, has undertaken and will be pursuing several initiatives that are aimed at ensuring competence and improving the quality of service provided. These include the training of judicial officers and support staff, the digitisation of the courts, and the procurement of resources necessary for the proper administration of justice.
Serious Backlog on Murder Cases
Chief Justice Malaba said serious concern has arisen relating to the slow movement and finalisation of criminal matters especially murder cases. Statistics, he said, show that there is in excess of 1 000 cases pending indictment to the High Court for trial. “The attendant difficulties and anxiety experienced by the accused persons waiting for trial, the witnesses (including complainants who would want closure to cases), and members of the public with interest in the outcome of the trials cannot be ignored. He said it was important for all stakeholders in the criminal justice system, especially the Judiciary, the National Prosecuting Authority, the Zimbabwe Republic Police and the Law Society of Zimbabwe, “perform their respective functions efficiently so that the unacceptable situation is eliminated”.
Introduction of National Council on the Administration
of Criminal Justice
In order to address the issues related to delays in handling criminal cases, the Chief Justice said, it became necessary to set up a committee of persons constituted by representatives of stakeholder institutions in the criminal justice sector, known as the National Council on the Administration of Criminal Justice. He said the rationale for the setting up of the National Council on the Administration of Criminal Justice is the fact that the finalisation of criminal cases is dependent on inter-institutional cooperation. The criminal justice system represents the most basic form of the law and one of the essential means within the judicial system for the protection of fundamental human rights and freedoms. Under the Constitution, the criminal justice system is designed to guarantee the respect and protection of the rights of persons brought before the criminal courts.
Addressing Challenges Associated with Sentencing
Chief Justice Malaba said Section 334A of the Criminal Procedure and Evidence Act [Chapter 9:07] mandates the JSC to convene a sentencing conference, bringing together the Judiciary and other important stakeholders in the justice, law and order sector, as well as other bodies and institutions that have interest and expertise in crime, punishment, and rehabilitation or treatment of criminals. To that effect, a Sentencing Conference Council was set up to organise and manage the affairs of the Sentencing Conference. The Sentencing Conference was convened and held from 5-7 December 2022.
The Sentencing Conference was attended by various players in Government and civic society. Draft sentencing guidelines were drawn up for presentation to the Judicial Service Commission, which will study them for submission to the Minister of Justice, Legal and Parliamentary Affairs.
The process will obviously bring about uniformity and consistency in the sentences imposed by the courts. Public confidence in the criminal justice system will be enhanced.
Introduction of the Integrated Electronic Case Management
Justice Malaba gave an overview of the flagship activity that the Judiciary had taken to enhance efficiency and the rule of law through the introduction of the integrated electronic case management system (IECMS):
“It is in this respect that the Judicial Service Commission introduced the Integrated Electronic Case Management System (“the IECMS”) in the courts, on the basis of the belief that the digitisation of the courts would ensure the provision of quality service to the public.”
The first phase of the system last year was implemented at the Constitutional Court, the Supreme Court and the Commercial Court. The second phase of the IECMS is expected to see the implementation go live in the Labour Court and Administrative Courts starting on February 1 this year.
The adoption and use of appropriate technology in the delivery of justice does not mean that the system would lose the fundamental attributes of transparency, independence, impartiality, accountability, openness and ability to present one’s case on which it is anchored.
Infrastructural developments in 2022 and 2023
During the year 2022, the JSC embarked on a number of infrastructural developments including the launch of the Commercial division of the High Court (Commercial Court) and the commissioning of the Lupane magistrates court. After expanding the High Court, the commission is now constructing courts in high density suburbs with the aim of taking the justice delivery system close to where the bulk of people stay.
Construction of Epworth Magistrates Court in Harare is at an advanced stage with more courts expected to be built in Glen Norah and Budiriro, while in Bulawayo they will be established in Nkulumane and Entumbane.
The exercise continued throughout last year which saw the installation of equipment across the 10 provinces.
Performance of the Courts and Conditions of Service
Overall, the Chief Justice gave a statistical account of the progress of the courts. The analysis showed how much backlog the relevant courts had, how many cases they received and how many they were able to discharge during the course of 2022. The data shows an improvement in how courts have managed to discharge and deal with cases efficiently as compared to the previous years which were affected by the Covid-19 pandemic.
Conditions of service for members of staff are a sensitive area because a demotivated workforce will not produce desired results. Salaries of judicial officers remain divorced from the reality of the importance of the judicial functions they perform.
This year the nation is due to hold harmonised elections later in July or August. The Chief Justice said that the Constitution makes it very clear that every citizen is entitled to peaceful, free and fair elections. The obligation is therefore on all the political parties, the candidates and their agents to ensure that conditions conducive for the holding of peaceful, free and fair harmonised elections are created and maintained.
Chief Justice Malaba also said the Judiciary expects the rule of law to prevail, especially in the coming months when political parties start their campaigns. “This is the only way that will ensure that the elections are free, fair and credible,” he added.