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Speech
by the Hon. Mrs Justice Rita Makarau Judge President of the High
Court of Zimbabwe on the occasion of the opening of the 2007 legal
year, Harare High Court, 15 January 2007
Mrs Justice Rita Makarau
January 15, 2007
I am humbled
by this opportunity afforded me by the Chief Justice to address
all of you on his behalf and on behalf of the entire Judiciary on
the occasion of the opening of the legal year for 2007. I acknowledge
with gratitude all present in this courtroom. In particular, I wish
to acknowledge the presence of
The Minister
of Justice,
The Minister of Anti-Corruption and Anti-Monopolies,
The Permanent Secretary in the Ministry of Justice, Legal &
Parliamentary Affairs,
The Resident Representative of the United Nations; Dr. Zacharios
Representatives of the Commissioner of Police;
Representatives of the Legal Fraternity of Prisons;
Members of the Legal Fraternity and
Members of the media
6 July 2006
saw the much-deserved elevation of Justice Garwe to the Supreme
Courts as Judge of Appeal and my assuming the post he had vacated.
I wish to thank all of you who have wished me well in my new post.
It is a post that I have assumed with some trepidation as I take
the reigns from a long line of eminent jurists and administrators
who have graced the High Court Bench. Those of who keep their history
will recall that prior to independence in 1980, Sir Vincent Quenet,
Justice MacDonald and Justice Lewis were the Judge President in
that order. Justice Lewis continued as Judge President until 1982
when he was succeeded by Justice E A T Smith. Justice Smith served
in the post for only one year to give way to Justice E. Dumbutschena
in 1983. After Justice Dumbutschena came Justice Sandura in 1984.
The Chief Justice in 1998 and Justice Garwe in 2001. I therefore
am fully aware of the size of the shoes that I have to fill.
Low
level of funding to the justice delivery system
2006 was a particularly difficult year for the whole country and
we in the judiciary were not spared. While over the years the funds
allocated to the judiciary have dwindled against an increase in
the workload, the funds allocated for 2006 were significantly inadequate.
For the first time in history, the High Court in Harare could not
travel to Masvingo on circuit in the third term to hear the hundreds
of criminal cases that have been awaiting trial in that province
for the past two years. At the last count in August 2006, Masvingo
had 104 murder trials awaiting trial.
Courts ran out
of basics and the constant response from the Ministry of Justice
Legal and Parliamentary Affairs where the budgetary vote for the
judiciary is housed was that it was not in funds.
Judging from
the paltry funds that are allocated to it, it is my view that the
place and role of the judiciary in this country is under-appreciated.
Phrases that it is the third pillar of state or that it is an integral
part of a democratic state are often used as appropriated fora by
politicians and social scientists and have become clichés
whose real meaning is not sought after or given effect to.
I wonder how
many of us here present have really given thought to the importance
of an efficient and impartial justice delivery system to us as individuals
generally and as Zimbabweans in particular and on a practical as
opposed to a concept basis. As a people, Zimbabweans have been described
as resilient and innovative. 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 education system by sending our children to schools and universities
in South Africa, Australia, United States and the United Kingdom.
When we need complex medical procedures and attention that the local
hospitals cannot now 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
and South Africa and have to contend with the inadequately funded
justice system in this country.
When someone
breaks into our houses and steals our hard earned assets, we cannot
call the well resourced police force of a neighbouring country to
come and investigate the offence. Worse still, when we are suspected
of having committed an offence, either rightly or wrongly, we are
to be held at local police station cells where due to under funding,
some conditions have fallen to inhuman and degrading levels. If
placed on remand, we are to be held in the local prison where the
conditions are no better. Innovative as we are, we are yet to find
a way to be held in a prison in Pretoria or Cape Town to avoid the
conditions in the inadequately funded cells at home.
For justice
delivery, we cannot escape the local system no matter how rich or
influential we are. We cannot substitute the justice delivery system
in Zimbabwe. we cannot escape the inefficiencies created by lack
of adequate funding. We can only work on it to rid it of the inefficiencies
by funding it at appropriate levels so that it regains its position
as a torchbearer on the subcontinent.
We are aware
that the Ministry of Justice Legal & Parliamentary Affairs has
over the years been making representations on behalf of the judiciary
and prisons to Treasury for funding of these institutions at appropriate
levels. We are also aware that the Ministry's budgetary allocation
over the years has been amongst the lowest yet it houses critical
institutions in the justice delivery system.
It is not in
the tradition of the judiciary to publicly speak on any issue including
calling attention to needs. The unique feature that sets the judiciary
apart from other State organs, that of carrying out its mandate
without fear or favour, necessarily prevents the judiciary from
crying out when it is in need lest help comes from undesirable sources.
I am breaking that tradition briefly and for today only to agitate
for better funding to the justice delivery system as a whole, generally
and in particular, to the judiciary. It is wrong by any measure
to make the judiciary beg for its sustenance. It is wrong to make
the judiciary beg for resources from any other source. Yet, if I
do not do so today, the judiciary shall continue to operate without
computers, without adequate stationery and shall continue to use
libraries that the Chief Magistrate has aptly described as varying
only in their degrees of uselessness.
Witness
expenses and accessories
When I agitate for better funding to the justice delivery system,
I am not only agitating for better remuneration for judges and support
staff or limiting myself to the provision of material resource for
use by judges. I will give two examples of my other concerns.
In his annual
report to the Chief Justice for the year 2006, the Registrar commented
on the amount we pay per day to witnesses who testify in criminal
trials in the High Court. We pay them $5.00 for each day spent in
court or waiting to go to court!
We all understand
the difficult times that the country is undergoing and how treasury
cannot cope with the demands made on it. However, for us to pay
a witness $5.00 per day brings the administration of justice to
disrepute. It is also a downright insult to the witnesses, most
of whom are simple rural folk from around Zimbabwe who will be justified
in thinking that their testimony was worthless if they were paid
only $5.00 for it. It may be worth the while for the policy makers
to debate whether the payment of witness expenses should not be
scrapped altogether if it has become an expense that treasury cannot
bear.
Due to the shortage
of funds, at times witnesses have appeared before a judge hungry.
This situation came to light when one witness, bravely informed
the court that he could not testify as he was weak from hunger.
The trial had to be stopped and at that stage it emerged that our
registry did not have sufficient funds to pay for the meals of witnesses
who come from out of Harare.
The same goes
for the payments made to assessors for sitting in criminal trials.
The amount paid them per day is a pittance that is not commensurate
with their importance in the justice delivery system. Invariably,
they are the most senior members of the court and come with a wealth
of experience and represent the views of the community during the
trial. The reward they get for so doing detracts from their importance.
Corruption
As I have said above, conditions of service for judges and for support
staff are an ongoing cause for concern.
Today, I wish
to highlight the conditions of service of support staff and how
this is negatively impacting on the administration of justice.
Reports have
reached my office and the office of the Chief Justice that support
staff in the courts are engaging in corrupt practices. Whilst these
reports are alarming, one can understand without excusing such conduct.
Salaries for support staff are not commensurate with their place
in the administration of justice system. Custodians of court records,
processors of judgments and court orders can work great mischief
to the litigating public. Access to judges is but through the support
staff and may be blocked or fast tracked. Records may be tempered
with or may go missing for short or long periods of time. Important
court notices may not be delivered on time or at all.
Support staff
play a vital role in the administration of justice and while they
remain civil servants, they are civil servant in a very vulnerable
organ of the State. In his speech to mark the opening of the legal
year in 2005, the Chief Justice reminded all judicial officers that
within the judiciary, the level of tolerance for corruption is zero.
I would want to remind all that the level of corruption still stands
at zero. Due to the reports that we have received concerning the
practices of some of the support staff, strategies have been put
in place to tighten our administrative systems and to weed out members
of staff whose practices may not be above board.
For the benefits
of the public and some misinformed legal practitioners, it may be
necessary to dispel two misconceptions that may have been created
by our support staff.
1. Judges are
not influenced by their clerks or by registry staff or by anybody
else for that matter in the content of their judgments or orders.
The relationship between a judge and support staff is generally
not one of confidantes. Reports have reached my office of how some
support staff may have been fooling members of the public that for
a reward, they will make the judge grant or dismiss their prayers.
Support staffs do not have such influence.
2. Judges are
individually responsible for the delays in handing down their judgments.
Support staff cannot tell or influence a judge on which matter to
pass a judgment before the judge is ready to do so. Reports have
also reached my office that some registry staff may have been giving
out to litigants that for a fee, they can have a long delayed judgment
written.
New
developments
During the last half of 2006, we began experimenting with a fast
track system of dealing with civil trials in the Harare High Court.
This saw the disposal of 91 cases in the months of September, October
and November. Of the 91 cases completed, 89 were completed to judgment
level leaving only two judgments to be handed down this year. We
are quite pleased with the results and have since made the fast
track civil court a permanent feature of the court roll. I want
to thank legal practitioners and the litigating public for making
this experiment the success that it was. I also wish to publicly
commend the industry of the entire High Court Harare bench during
the last legal year. This, despite the hellish conditions they had
to operate under. In particular, I was humbled by the industry of
the team of the three judges who presided over the fast track civil
court and would at times sit in court will into the evening to complete
cases. These are Justices Uchena and Kudya with Justice Bhunu as
the senior judge of the team.
Legal practitioners
and the litigating public must brace themselves for a further no-nonsense
approach to litigation as another tem of 3 judges take charge of
the fast track civil court for the first term of 2007 with Justice
Hungwe as the senior judge and Justices Chitakunye and Chatukuta
as his team mates. For greater efficiency in the disposal of cases
that come before us, we are introducing other changes that will
unfold during the course of the year.
Criminal
cases
We have managed to accumulate embarrassing backlogs in our criminal
division. Delays of four or more years are now fast becoming the
norm rather than the exception. Trials are set down and fail to
take off for a number of reasons adding to the backlog. In his report
to the Chief Justice, the Registrar expressed the need on the part
of the courts, prisons, the police and the Attorney-General's
office to synchronise their operations. He proposed the setting
up of a joint Liaison Committee that should meet regularly and report
on progress. I fully support his suggestion as the only possible
way forward. Acting alone none of us will make any headway in reducing
the backlog or in stamping out crime.
In its comment,
the Herald of Friday 12 January 2007 put it in language that I wish
to borrow when it said "it is important to understand that
the police arrest on suspicion and not on conclusive evidence, which
is why the likelihood of wrongful arrest is also high".
The Criminal
Justice delivery system is neatly structured in such a way that
the police will arrest on suspicion, the Attorney General will accuse
on prima facie evidence, the legal fraternity will defend at all
times and the courts will convict on proof beyond reasonable doubt.
Each office has a role to play and when the system fails to play
out in full, the suspect or accused person is entitled to his or
her freedom.
CONCLUSION
While 2006 was a difficult year for us in the judiciary, our spirits
were somewhat lifted by efforts from well wishers who engaged us
in various discussion on enhancing the capacity of the judiciary
and in reiterating what we have always believed that the fortunes
of Zimbabwe cannot be turned without an impartial, vibrant and efficient
justice delivery system. To all those who dialogued with us in 2006,
I say thank you for your support.
Finally, I would
like to command the cordial relationships that exist between the
courts and the legal profession, the police, prisons and the office
of the Attorney General. Dialogue has already been opened between
my office and the other four offices for the enhancement of justice
delivery in the High Court. Let mutual respect continue to be the
force that binds us. Let the strengthening of the justice delivery
system be our rallying call and let respect of the rule of law and
the rights of all Zimbabweans be the principles that guide us and
let the best interests of the people of Zimbabwe be our common vision
and justice our common goal.
With these few
remarks, I pronounce the 2007 legal year open. The Court will now
stand while Reverend Eben Nhiwatiwa of the United Methodist Church
leads us in prayer. After the prayer the court will adjourn to the
courtyard where refreshments have been laid out for us.
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