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Reforming the criminal justice system in Zimbabwe: Lessons from Kenya
Obert Hodzi
March 15, 2011

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1. Introduction

1.1. Objectives of the Study

Lack of accountability and impunity are the hallmark of weak institutions operated on the dictates of patrimonialism. In a society where clientelism determines how institutions, such as the judiciary, prosecution authorities and the police operate, laws are applied selectively and justice is mocked; the public lose confidence in the justice system and the likelihood of mob justice is prevalent. At the ruling elite level, and to those well-connected in the corridors of power, impunity becomes a survival instinct.

But, what really is impunity? The amended set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity defined impunity as "the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims." And as observed in the Waki Commission Report the ingredients for impunity are: "elements of systematic and institutional deficiencies, corruption, and an entrenched negative socio-political culture."

Without public accountability in the exercise of its powers, a government breeds corruption, abuse of office and impunity. In Zimbabwe, as it was in Kenya, both direct and indirect presidential control of the criminal justice system meant that institutions, such as the police, attorney-general's office and the judiciary's independence and impartiality are stifled. Resultantly, state officials and politicians enjoy widespread impunity, apply the law selectively and can hold the court in contempt at whim.

Through a comparative analysis of the criminal justice system of Kenya and Zimbabwe; this study will examine the role, action and issues affecting the two legal systems as they relate to issues of accountability and impunity. It will critically explore reforms and measures taken in Kenya to address issues of accountability and impunity in the country's criminal justice system, with the intention of making recommendations on how the criminal justice system in Zimbabwe can be reformed to purge the culture of impunity and lack of accountability seemingly characteristic of the system.

1.2. Relevance of the Kenyan Experience to Zimbabwe

When supporters of the Orange Democratic Party (ODM) were told to channel their electoral grievances over the disputed elections of 27 December 2007 they refused; claiming that courts in Kenya were neither independent nor impartial. Instead, they took to the streets. A few months later, Zimbabweans held general elections; when a subsequent run-off election was declared, the Movement for Democratic Change (MDC) led by Morgan Tsvangirayi pulled out citing voter intimidation and violence. Electoral petitions were neither contemplated nor suggested. Like in Kenya, the courts were considered biased and incapable of conducting themselves independently. In both cases, previous handling of election petitions had illustrated the Judiciary's inability to effectively deal with such critical matters in a professional, robust and independent manner. "Accordingly, it became a matter of public notoriety over the years that presidential and parliamentary election petitions would not deliver electoral justice."

Post-election happenings in both countries simply amplified demands for reforms that had long been demanded by progressive politicians and the civil society. Yet, they are by no means the only reasons for the need for reforming the judicial system in both countries. The Republic of Kenya's Final Report of the Task Force on Judicial Reforms cited patron-client based relations between the executive and the judiciary as having contributed immensely to the breakdown and subsequent loss of legitimacy of the judiciary system in Kenya. The same can be said of Zimbabwe were the appointment of judges, their promotion and patronage based rewarding system, such as the allocation of farms compulsorily acquired under the government of Zimbabwe's land reform programme and the giving of flat screen televisions, decoders and generators to judges by the Reserve Bank of Zimbabwe seemingly, compromised their independence and impartiality.

With both countries being led by governments of national unity and having suffered serious human rights violations arising from disputed elections that exposed deficiencies in their justice systems, the urge to compare their criminal justice systems is compelling. While Zimbabwe lags behind in reforming its justice system, Kenya seems to have made grant steps towards constitutional reforms in general and plausible criminal justice reforms in particular. Inroads made in transitional justice, the obvious aim being to break the cycle of impunity that characterized Kenya's justice terrain and to concretize accountability of government arms are plausible. With the new Constitution promulgated on the 27th of August 2010 at implementation stage, the wagon of reforms appears to be on track and in stop less motion. Yet, Zimbabwe trails behind, with no formal and serious transitional justice process, the constitution-making process marred by controversy and no meaningful discussion on the need to reform the criminal justice system.

It is within this context that this study seeks to critically analyze developments that have been made in reforming the criminal justice system in Kenya with the obvious objective of informing and making considerable recommendations on how Zimbabwe can reform its own justice system. Kenya is by no means the ultimate model of criminal justice reforms, and in using it as a case study, this study does not infer that it is. It should be noted that many of the reforms provided for in its new constitution are still at implementation stage and the implementation has by no means been smooth. But, the fact that they have gone further than Zimbabwe has within a short period of time suggests that Zimbabwe can draw some lessons from their experiences.

Based on the Kenyan experience, recommendations will be made, yet a footnote has to be added: "Problems of corruption, political influence and patronage in the [criminal justice system], appointment of judges and in the constitution of the Judicial Services Commission, as well as the general lack of independence of the judiciary from the executive, cannot be addressed administratively but require a radical transformation of the relationship between the judiciary and the executive" Hence, in order to adequately reform the criminal justice system of Zimbabwe administrative reforms should be accompanied by institutional reforms aimed at transforming the justice system, particularly the judiciary into an independent, transparent, legitimate and impartial institution. Institutional reforms will invariably require the enactment of a new constitution or at least far-reaching reforms on chapters that deal with the independence and impartiality of the judiciary and the overall administration of justice in Zimbabwe.

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