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Justice Delayed is Justice Denied
International Bar Association (IBA)
IBA Weekly Column on Zimbabwe - No 043
August 02, 2004

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Like every developing country that still relies largely on a manual system, Zimbabwe experiences delays in its justice delivery system. Such delays can be attributed to human error, absence of urgency in the prosecution of the case by the lawyers, a failure to properly co-ordinate witnesses, in criminal cases, and a host of other reasons.

However, of late the delays have increasingly come from the bench after a case has been argued or prosecuted. This alarming trend has become of grave concern to litigants and the legal profession, particularly as the delays in passing judgment have become endemic in the Superior Courts such as the High Court and the Supreme Court, which also doubles as a Constitutional Court. It is no longer unusual for litigants to wait for more than six months for a judgment that does not involve complex issues of law. Indeed, even applications that are heard on an urgent basis can have judgment passed many months afterwards and long after the feared harm has occurred. It has also become normal practice that applications determined in the High Court on an urgent basis receive no urgent attention in the Supreme Court if an appeal is lodged.

The Law Society of Zimbabwe has raised the issue of delays at the highest possible level in the hierarchy in the Judiciary. Although the Chief Justice acknowledged the delays, he attributed these to the inexperience of both the High Court and Supreme Court judges following the forced departure of more experienced judges. The Judge President in the High Court has directed his judges to deliver judgments within six months of hearing argument, unless the matter is particularly complex, in which event the parties and his office must be informed.

There is general skepticism surrounding the reasons given for delays as these have, in the main, been cases that involve the Government and in which a delayed result would suit it. The recent revelation by Judge Michael Majuru that the Minister of Justice had asked him to delay the Daily News case for at least three months gives credence to the belief that certain delays are deliberately engineered in order to favour one of the litigants, usually the Government or its agents, and to inflict maximum harm or damage on any litigants that are perceived to be anti-government. A look at the Daily News cases will show that although the High Court and the Administrative Court heard the cases fairly urgently, the appeals in the Supreme Court have moved at a snail's pace. The Constitutional challenge filed in January, 2003 still awaits determination. Although argument on the Constitutional challenge, which the court had already looked at when it made the startling 'dirty hands' judgment was heard in March 2004 judgment is yet to be delivered. The effect of this is that the Daily News remains in limbo and the general belief that this delay will persist until after next year's general election cannot be discounted as fiction.

The contempt of court application against the Immigration Officers who unlawfully deported Andrew Meldrum was argued in the High Court in August, 2003. Yet as at the end of July 2004, no judgment had been delivered. The election petitions that were heard mainly in 2001 and 2002 still remain unresolved as not one appeal has had judgment delivered. With the looming general elections in the first half of 2004, there can be no question that the entire exercise has been rendered academic as Parliament is now in its final session before the next elections.

The failure to timeously deliver judgments has of course spread to virtually all kinds of litigation, including mundane issues dealing with normal family law disputes and normal commercial litigation. This is a spin off of the general decay in the judiciary where litigants no longer take center stage. The delays have also become endemic in the general day to day operations of the courts as time is no longer an important consideration. In the Magistrates Court, although the courts are supposed to sit at 0830hours, litigants and accused persons are told to be at court by 0800hours. However, virtually no court sits at the starting time of 0830hours and cases are unlikely to be called before 1000hours.

In the High Court, the judges generally regulate their commencement times although the normal starting time is 1000hours for trials and 0900hours for applications. While there is a small number of judges in the High Court that still have respect for time, the majority simply do not care for time. One judge who lives many kilometers away in a farm allocated to him through the fast track land reform routinely starts his court long after the time he would have advised to the parties. Regrettably, very little is being done about this as those tasked with ensuring the smooth running of the Judiciary are as guilty of these delays as their juniors. The net effect of these deliberate delays in the administration of justice is that unnecessary bottlenecks are created. Once one case or judgment is delayed, a ripple effect is created and an unnecessary backlog is created.

There can be no question that these delays are extremely prejudicial to the litigants as their rights are not timeously determined. The financial prejudice in these cases that involve money assume proportions that could lead to bankruptcy, particularly in a country with the high inflation that Zimbabwe has. And of course, the general populace loses confidence in a judiciary that fails to determine litigants' rights in a speedy manner. But however adverse the situation, the judiciary can redeem itself from the general belief that these delays are deliberate by ensuring that judgments are delivered in a timely way.

Urgent and stern measures are needed to correct this development, but if the delays are deliberate and meant to serve certain purposes, Zimbabweans will continue with the charade of a functioning judiciary until the political will to change things returns to those responsible for the present decay.

The adage that justice delayed is justice denied is no longer a cliché in the Zimbabwean legal system, but a grim reality.

The International Bar Association is an organisation that represents the Law Societies and Bar Associations around the world, and works to uphold the rule of law. For further information, visit the website www.ibanet.org

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