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Judicial system under siege
Zimbabwe Independent
April 08, 2004

By Beatrice Mtetwa

Beatrice Mtetwa is a practising lawyer. This article was written in a personal capacity.

I read Alex Magaisa's excellent article in the March 12 Business Digest on the effect of manifestly unconstitutional laws being used to deal with persons who are alleged to be economic saboteurs and I agree that such laws should not be selectively used to instil good corporate governance.

However, I think he left out one of the crucial reasons why the majority of people who are suspects will feel anxiety about being subjected to the legal system as presently constituted.

I believe that one of the main reasons why suspects are reluctant to subject themselves to the country's legal system is the perception that they won't get a fair trial. The operations of the judiciary have been compromised in a number of respects in the past four or so years to an extent where basic administrative rules have been changed without the formal rules of court being amended. This includes the process by which cases are allocated.

The control of the judicial process by a few has affected such mundane things as the entry into the High Court building after normal court hours. Lawyers and court staff are no longer allowed to enter the High Court building when bringing urgent applications after hours unless they have been cleared by the President's Office.

A colleague and I recently had to spend hours sitting outside the High Court building whilst awaiting clearance from the President's Office and the arrival of a clerk who was to issue and stamp the papers that we were bringing in an urgent application. When the clerk finally arrived that Saturday morning, he was equally not allowed into the court building and was instead taken across the road to the President's Office for "clearance".

No one knows what such "clearance" consists of. Does it include being told which judge to call for the particular case? Does it include instructions to pretend that no judge can be found?

It is equally difficult to understand why a duly registered legal practitioner, who holds a valid practising certificate, must be "cleared" by the President's Office each time he or she brings an urgent application outside court hours. This is particularly so as none of the laws relating to the administration of justice fall under the President's Office. It is therefore generally perceived, rightly or wrongly, that these "clearances" are meant to influence the choice of judge in the particular case, and that such influence may have a bearing on the result at the end of the day.

I believe that all of these elaborate rules have been introduced to interfere with the judiciary's right to fairly and impartially discharge the functions of an independent judiciary. It is in such light that the actions of those suspects who have taken flight must be considered. I have no doubt that regulations such as the ones under which James Makamba was detained, coupled with the judiciary's apparent reluctance to openly declare them unconstitutional, could influence a suspect to flee rather than face the uncertain prospect of being shunted from one court to another without one's basic rights being considered. We have already seen a Supreme Court judge expressing an opinion that the regulations are "patently unconstitutional", yet no steps have been taken to restore the suspect's fundamental right to liberty and freedom of movement.

One would expect that once a Supreme Court judge has expressed an opinion that the law is patently unconstitutional, the judiciary would take immediate and urgent steps to ensure that rights that are being violated under such a law are immediately restored. Indeed, one would also expect the state to take steps to ensure that persons whose rights have been taken away under such a law have them restored.

Even where the courts order the release of accused or detained persons, there is of course the now all too familiar disregard for court orders. Even before the latest regulations were gazetted, we all know that court orders are routinely selectively enforced. The police and prison authorities no longer consider the courts as final arbiters of basic rights: politicians and the police now determine which court orders are to be respected and which are to be ignored. The courts have regrettably shown a reluctance to have those flouting court orders locked up for contempt.

How many of us would want to submit ourselves to a system without rules which would result in the accusers ultimately deciding one's fate and having the final word? Why go through the charade of a legal process that is unable to enforce its own decisions? If the policeman who effects the arrest in the first place is the one whose opinion counts at the end of the day, why go through the pretence of court proceedings?

I believe that the perception that the courts, especially the superior courts, are now there largely to rubber stamp executive decisions, has contributed to the fear that once one is arrested, he will serve a "sentence" for as long as the authorities want him to remain in custody. Indeed, the fact of one's arrest is now interpreted as meaning that the establishment wants you in custody for as long as possible. We have seen how many of those who were arrested and locked up for long periods of time without bail hardly ever face trial in the courts at the end of the day.

It has also become common practice to subject judgements that are not in favour of the government to vilification by the state media. The criticism of such judgements is normally directed to the judicial officer in language that is not only intemperate, but is meant to belittle, humiliate and intimidate the judicial officer.

There is absolutely nothing wrong with criticising the reasoning of a court in a particular judgement so long as this is done in language that is not personalised and is not seeking to attack the person of the judicial officer.

The attacks and vilification by the state media are always justified as these being the opinions of legal "experts" or people who claim to be lawyers but who are at all times anonymous. If a lawyer believes he is castigating a judgement on sound legal basis, I have difficulty in understanding why he cannot put his name to his beliefs and opinions. The perception that the "legal experts" that are routinely quoted by the state media are in fact politicians masquerading as lawyers becomes reinforced when such legal experts routinely give their views not only anonymously, but in a one-sided manner.

But what does the public bashing of judicial officers do, not only to their confidence, but to their constitutional right to interpret the laws of the land without fear, favour or being called names in the state media? There can be no question that the state media bashing of judicial officers is meant to intimidate them into making judgements that are favourable to the state.

We saw clear attempts at intimidating judicial officers in the Administrative Court in the Associated Newspapers of Zimbabwe case, and we have once again seen it in the Makamba case where judicial officers have been castigated for making a decision in favour of the accused person. What is most unfortunate in the bashing of judicial officers is the behaviour of government lawyers who immediately don political garb and make statements that are meant to please the politicians.

Once a judgement is made against the state and the politicians criticise it, the Attorney-General's office immediately issues statements that it will appeal against the judgement and it then invokes every other law to ensure that the suspects remain in custody. These protestations are rarely followed by appeals that are argued in court, as most of the so-called appeals are not proceeded with.

Whilst one understands that officers in the Attorney-General's office also operate under difficult conditions characterised by a lack of independence and fear of the political consequences, law officers must be reminded that they are officers of the court who have a duty to represent the rights of all the people of Zimbabwe. Law officers have as much a duty to secure the liberty of an individual against whom there is no reasonable suspicion, as the lawyer representing that individual. Law officers must therefore be encouraged to exercise the right to have the ultimate say on whether or not a case should be taken to court, which right they are now perceived to have surrendered to members of the ZRP and politicians. It is the duty of every law officer to take to court only those cases that deserve to be taken to court, regardless of political considerations that might exist. It is equally the duty of every law officer to ensure that state officials comply with court orders, even if the politicians do not like such court orders.

On March 10, one of the state newspapers carried a most scurrilous attack on judges alleging that they are corrupt and that they are taking bribes from members of the public. Despite the article being factually baseless, no one has pointed out that no judge has been convicted of a crime of corruption and that no judge is in fact accused of taking a bribe. The failure to protect the integrity of judges can only serve to intimidate judicial officers into making judgements in favour of the state for no other reason than to avoid being publicly attacked. If there have been any inducements at all, these have arguably been from government as we have seen judges being allocated farms in circumstances where it might be perceived, rightly or wrongly, that such allocations are meant to induce judges to make judgements that are in favour of the state.

In my view, it is these perceived irregularities and uncertainties in our legal system that will persuade suspects to leave the country as the legal system is so compromised as to offer little justice to members of the public once politicians have determined that a particular individual must be locked up.

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