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A new legal year, but the old concerns remain
Zimbabwe Lawyers for Human Rights (ZLHR)
Janaury 10, 2006

http://www.zlhr.org.zw/media/releases/jan_10_06.htm

The official opening of the 2006 legal year was marked at the High Courts of Harare and Bulawayo on 9 January 2006, with keynote addresses being delivered by the Judge President of the High Court, Justice Paddington Garwe, and Justice Maphios Cheda respectively.

Zimbabwe Lawyers for Human Rights (ZLHR) notes that the Judge President made extensive reference to the sub-standard remuneration and working conditions of judicial officers, the inadequate resources at the courts, and the effect that these have had on their ability to deliver justice efficiently and effectively. This is confirmation of a position long stated by ZLHR as having a material impact, not only on the smooth administration of justice, but also on the independence of the judiciary. ZLHR renews its call for these issues to be addressed without delay.

However, independence of the judiciary necessarily encompasses both institutional independence (as illustrated above) and individual independence. Regrettably the Judge President failed to address key concerns which have been raised as to the individual independence of members of the judiciary, including concerns as to the appointment procedure and political inclinations of certain members of the Bench and the impact this continues to have on their ability to impartially adjudicate on sensitive issues; the fact that many are beneficiaries of a contested land reform programme and receive unofficial benefits from the state for as long as they remain on the Bench which, again, may impact on their impartiality; and the fact that they have also benefited from the implementation of provisions of Constitutional Amendment (No.17) relating to land acquisition which Act is being contested domestically and in international tribunals, amongst other concerns.

Justice Garwe emphasised in his speech the need for a responsive judiciary and criminal justice system which can promote socio-economic development. Whilst this is a commendable goal which all right-minded people in our society support, the actions of the judiciary have in reality failed to give effect to this aspiration. This is evidenced by the failure of the superior courts to deal expeditiously (or at all) with urgent matters involving human rights violations, especially those perpetrated against vulnerable groups by state and non-state authorities during Operation Murambatsvina, their failure to provide substantive relief to those who mistakenly viewed the courts as their protectors, and their reluctance to infuse fundamental rights and freedoms into the local human rights jurisprudence. The sincerity of the Judge President’s assertion, therefore, that "the judiciary will continue to work hard to ensure that all persons approaching the courts will get justice, irrespective of their status in society" (our emphasis) is questionable.

ZLHR also notes with concern the unfortunate and unnecessary attack by Justice Cheda on unnamed law firms involved in human rights litigation. Coming hot on the heels of a similar attack by Chief Justice Godfrey Chidyausiku in late October 2005, it reinforces a growing perception of an arrogant judiciary which believes that its public threats and intimidation will dissuade members of the legal profession from exposing human rights violations and pursuing redress for their clients. It also adds to the mounting hostility which has been evidenced by state organs and public officers against human rights defenders pursuing legitimate activities to improve the socio-economic conditions of the vast majority of disadvantaged people in Zimbabwe.

It is interesting that Justice Cheda heaps praise on lawyers and law firms who fought for the defence of human rights during the war of liberation, and describes them as "unsung heroes", as there are striking similarities in the nature of cases which were taken up by these human rights defenders and those which human rights lawyers are currently pursuing. All these cases, historical and current, are premised on the realisation of fundamental rights and freedoms, such as freedom of expression, assembly and association, participation in the governance of one’s country, and the enjoyment of social and economic rights, which remain unchanged and relevant for all oppressed communities throughout time.

ZLHR expresses its disappointment that neither the Judge President nor Justice Cheda mentioned several other key concerns relating to the administration of justice in Zimbabwe today. Their silence on the ouster of the jurisdiction of the courts through Constitutional Amendment (No.17), even when national and regional law associations and legal practitioners spoke out to protect the independence of the judiciary, was deafening. The continued defiance and disregard of court orders by the executive has been inexplicably tolerated by the judiciary, which has directly contributed to the breakdown of the rule of law and a growing perception of impunity. Executive attacks on members of the Bench who hand down decisions which are not favourable to the state will continue, as neither the Chief Justice, nor the Judge President, nor the Chief Magistrate, have sought to protect their officers from such attacks. The inordinate delays in the disposal of cases, especially the handing down of judgments, are in danger of becoming an accepted part of the justice delivery system, as no concerted and public actions have been taken to accept them as a reality as a first step towards addressing them.

Members of the legal profession, as well as the general public at large, are entitled to an explanation for the current deplorable state of the justice delivery system. Misdirected attacks and threats, and attempts to skirt around serious issues, will not contribute to the restoration of the rule of law; neither will it bring about institutional reform necessary to ensure access to justice and to allow people to regain confidence in the justice delivery system.

The Judge President acknowledged the fact that the judiciary is "not above criticism" and that "if there is a problem with the way the judges do certain things… this should be highlighted". ZLHR does so in the hopes that the shortcomings will immediately be addressed.

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