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We are equal before the law
Comment, The Zimbabwe Independent
January 19, 2007
Justice Rita Makarau
this week led the judiciary in a rare charge to press for more funding
for the legal system.
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
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.
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.
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."
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
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.
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.
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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