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We are equal before the law
Comment, The Zimbabwe Independent
January 19, 2007

JUDGE President Justice Rita Makarau this week led the judiciary in a rare charge to press for more funding for the legal system.

Opening the first term of the judicial year in Harare this week, Justice Makarau drew up an inventory of problems being faced by the judiciary in the performance of its duty saying judges were working in "hellish conditions".

The judge said courts were running out of basics and the constant response from the Ministry of Justice which is responsible for financing the courts was that it had no funds. She lamented the underfunding of prisons which had resulted in dreadful conditions in state jails. The judiciary was operating without computers and adequate stationery. The library available for use has been described "as varying only in their degrees of uselessness". The country's economic crisis has now caught up with the judiciary.

"I wonder how many of us here present have really given thought to the importance of an efficient and impartial justice delivery system . . . When shortages of certain grocery items manifest in the local supermarkets, we shop in neighbouring countries. We have managed to avoid what we perceive as shortcomings in the local educational system by sending our children to schools in South Africa, the United States of America, Australia and the United Kingdom.

"When we need complex medical procedures and attention that the local hospitals cannot provide, we fly mainly to South Africa but sometimes to the United Kingdom or the United States. Yet when we have to sue for wrongs done to us, we cannot do so in Australia or South Africa and have to contend with the inadequately funded justice system in this country."

Justice Makarau also said that "the place and role of the judiciary in this country is under-appreciated".

The Judge President is right in saying that the judiciary should not be reduced to begging the state for sustenance. A self-respecting judiciary cherishes its independence from state intervention and intrusion and also from the general public. In its discharge of duty the judiciary should never be seen to be beholden to the state lest it becomes an extension of the executive. The current Judicial Services Commission offers a wafer-thin buffer to judicial independence. If anything, judges are no different from our poorly equipped ordinary civil servants.

The political establishment in Zimbabwe would very much love to have a suborned judiciary which comes to politicians begging bowl in hand. A weakened judiciary is an essential ingredient for a government on a mission to subvert human rights. The breakdown of systems at the courts makes them less attractive as institutions where people go to seek justice. There are lengthy delays in the conclusion of both civil and criminal cases. Justice Makarau — on a visit to the Remand Prison in Harare Central last year — discovered hundreds of inmates festering in filthy cells without trial.

Her exercise of judicial activism by clearing the overcrowded cells was immediately attacked by Home Affairs minister Kembo Mohadi who accused the judiciary of abetting criminal activity in the country. The absence of a response from the judiciary following these slanderous executive pronouncements is emblematic of the government's perception of the Bench. Judges should partner with the executive in the assault on human liberties, Mohadi's statement seemed to suggest. This explains why the police — in cases challenging the land reform — stubbornly refused to enforce orders from the courts on the pretext that the issues at stake were political.

The purge of the judiciary and the execution of the land reform was therefore no coincidence. The government wanted a pliant Bench that would not erect a legal blockade to its designs. And it was prepared to pay for acquiescence with land grants. Even today, the Zanu PF government is keen to have a judiciary that serves its narrow political interests rather than upholding the rights of Zimbabweans as set out in the constitution's Declaration of Rights.

Upon his resignation from the Bench, Justice Michael Gillespie in 2001 aptly captured the state of affairs in the judiciary.

"I cannot sit as an effective and independent member of this Bench," he said. "The executive has contrived to politicise the Bench. A judge . . . who finds himself in the position where he is called upon to administer the law only as against political opponents of the government and not against government supporters, faces the challenge to his conscience."

It is clear money alone is not the problem. There is a need for principled leadership and independent judgements in our courts if Zimbabwe is to recover its respect for the rule of law.

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