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'Judiciary only interprets the law'
Justice Chinembiri Ernest Bhunu
February 15, 2006

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This speech was delivered at the opening of the 2006 legal year in the High Court's Masvingo circuit.

The just ended legal year closed on a rather sour note following the sad loss of Justice Sandra Mungwira in December 2005. She succumbed to a debilitating fight against an insidious cancer. We who had the privilege of knowing and closely working with her appreciate and acknowledge that she was a judge among judges. She was imbued with a sharp, discerning mind of the highest legal acumen.

May I please take this opportunity to pay special tribute to our fallen judge, friend and colleague by observing a minute's silence. May we all stand up while we observe a moment's silence. Thank you. You may all sit down.

Having started my legal career here in Masvingo sometime in 1981 as a young magisterial assistant of no more than 23 years of age, this place occupies a special soft spot in my heart.

Despite the sad loss of Justice Mungwira, we meet once again in a year full of promise, blessed with abundant rain, peace and tranquillity. It is our fervent hope that the year has better things in store for us, both on the legal and economic spheres.

As most of you will undoubtedly be aware, the judiciary is one of the vital pillars of government, comprising the executive, legislature and the judicature.

The three arms of government keep an eye on each other in a system of checks and balances, but are not antagonistic. They complement and support each other, ensuring that none strays from its tour of duty.

The three organs of the State exist in a delicate balance of power where they are independent of each other yet they must police each other to ensure that each organ properly discharges its constitutional mandate.

No system of governance can function properly without an efficient, competent and credible judiciary. This is for the simple but good reason that it is the custodian of rights. It defines, determines and protects legal rights according to law.

It is the onerous duty and burden of the judicature to keep an eye on the legislature and the executive to ensure that they do not stray into the wilderness of illegality as they go about their difficult job of governing the country.

That duty is by no means an easy one, particularly in times of economic strife and volatile agrarian reform, in circumstances where the "haves" are determined to retain their cake and the "have-nots" are equally determined to get a fair and equitable share of the cake.

While it is the duty of the judiciary to protect legal rights against the high and mighty, the great and small, the powerful and the weak, it is certainly not the function of the judiciary to create or preserve non-existent rights.

A case in point is the recent Constitutional Amendment Number 17 (Act) of 2005 which had the effect of divesting a certain class of our society of certain existing rights. The dispossession is deemed lawful in the eyes of the law in so far as it was done in terms of the supreme law of the land.

Laws emanating from the legislature and duly assented to by the executive are valid until abrogated through the due process of law.

Thus, the stark reality and bitter truth which we must all come to terms with, no matter how others may detest it, is that Constitutional Amendment Number 17 of 2005 is, in the eyes of the law, valid and binding as long as it continues to exist in our statutes and, indeed, the same applies to any other law.

We as judges are not sworn to make or unmake the law, but to interpret and enforce existing laws of the land.

When accepting judicial office, judges take and subscribe to the oath of loyalty and allegiance to the State. By virtue of the judicial oath, they undertake to do justice according to the law to all manner of people without fear or favour.

Judges have, therefore, a sworn duty of allegiance to the State of Zimbabwe and to observe all the laws of the land. Doing otherwise can only amount to treachery, abdication and betrayal of the oath of office. While the judiciary is cognisant of foreign laws, where those laws come into conflict with local laws our own laws will take precedence.

For instance, the mere fact that it is lawful to drive on the right side of the road in America does not make it lawful to drive on the right side of the road in Zimbabwe.

We, as serving judges, believe that we have steadfastly discharged our sworn duty without fear or favour. Those judges who were unable to come to terms with the current realities, we believe, have since exercised their democratic right to leave office. Their decision must be respected.

As public officials, we appreciate and acknowledge that we are subject to public scrutiny. The sad development is, however, that demonising and maligning Government, its organs and servants has since become big business, if not a whole industry, both locally and abroad.

Merely demonising one's own country and leaders has turned some erstwhile paupers into instant billionaires financed by the country's detractors. Yet others have earned residence and work permits in foreign lands.

The judiciary, being an integral organ of the State, has not been spared the flak and hostilities.

Since the beginning of the land reform programme, there has been a concerted vicious onslaught against the judiciary, particularly in the so-called independent and foreign media.

To add insult to injury, the judiciary has had its fair share of unwarranted criticism from both the opposition and the ruling party. Both parties have taken certain judicial pronouncements with a pinch of salt, if not outright vitriolic attack.

The sober truth is, however, that both parties have fought bitter, countless legal battles in the courts in which both have scored spectacular victories and losses. There has been no logical explanation of how this could be possible if the judiciary was aligned to one party or the other.

The absence of a logical explanation in this respect tends to leave one with a rather unpleasant feeling of it being a case of sour grapes where one has lost the legal battle fairly.

The high rate of unsuccessful, abandoned or withdrawn appeals leaves one with the impression that most criticisms levelled against the judiciary are usually a face-saving device in the face of defeat.

Judging from the way they stampede to get to the courts, it is clear that they have great faith in the justice of our courts.

It must be appreciated that as members of the judiciary, it is our unpleasant duty to resolve bitter conflicts. We deal with angry, furious people almost all the time. It is not surprising that in most cases wherever there is conflict or contest, there is bound to be a loser and most losers will always have a complaint.

We in the judiciary are not unduly perturbed or disturbed because of the knowledge that they will be only letting out steam for they will have had a fair trial.

It is, therefore, necessary to remind everyone concerned at this juncture that the courts are neutral arbiters.

They are neither for nor against anyone. The courts will not help spring anyone into power nor help anyone to remain in power. Those who desire political office must go to the people and not the courts.

The courts have neither the power nor desire to usurp the function of the people. It is the people who are kingmakers, not the courts.

This brings me to the question of the workload and discharge of the judiciary's duties. It is an open secret that the judiciary is currently labouring under a huge backlog of cases. This has been a subject of much debate and criticism.

The hard reality is that, generally, the judiciary is under-funded, understaffed and underpaid. The judiciary, therefore, continues to suffer from a serious brain drain with the net result that Government has merely become a training ground for the private sector as it is used as a stepping stone to greener pastures. This is not a new issue; there is urgent need for redress if disaster is to be averted.

Ideally, all members of the judiciary, from the Chief Justice to the rustic headman, should lead exemplary lives. That being the case, they need to be accorded conditions of service which are commensurate with their dignity and station in life. Failure to do so can only be a fertile ground for corruption in the judiciary.

Judging from Press reports, there can be no denying that corruption is fast permeating all facets of the judiciary, particularly in lower ranks and supporting staff. Some corrupt members of the judiciary are being paid to reach predetermined judgments. In some instances, friends and relatives, the powerful and the rich may influence the outcome of cases. Litigants are being made to pay for services that they ought to get for free.

Generally, cases should be heard on a first-come first-served basis. Some people are, however, paying either to jump the queue or have their cases delayed, whichever way may suit them. Judicial officers, in some cases, are being impersonated and fake judgments produced by supporting staff. A person who has fairly won his case has the issuing of his judgment withheld under the false pretext that the presiding judge or magistrate wants his cut. The judgment is only released upon payment of a bribe.

If one is not sure of the authenticity of any court judgment, order or anomaly, he or she must not hesitate to approach the authorities for verification.

While the Government should be commended for creating the Anti-Corruption Commission, that is not an end in itself. That effort will come to nought if the commissioners are not well remunerated because they suffer more exposure to corrupt rich members of society. They, therefore, stand more in danger of being corrupted than ordinary members of society are, if their conditions of service are not right.

The current rampant corruption and high crime rate in our society are symptomatic of a sick economy. Corrupt Government officials come from society. Events in the recent past tend to suggest that corruption may be worse in the private sector than in Government circles.

A corrupt society is, therefore, more likely than not to produce corrupt Government officials, chief executives and citizens. As long as our society continues to be corrupt, there can be no hope of producing and maintaining a clean judiciary untainted by corruption.

The most efficient method of fighting corruption and crime is not arrests, but to cure the economy and pay everyone a living wage. In my view, no amount of arrests will deter starving people from committing economic crimes and corruption. Because of economic hardships, some people are prepared to exchange their own freedom with a few thousand dollars.

Some people prefer prison to freedom where they are assured of a square meal, free boarding and lodging. Arresting such a person will not deter him from committing crime in future.

The task of rebuilding the economy should not be left to a few individuals. We all must participate. Merely being bystander critics will not help rebuild the economy. No amount of fleeing to foreign lands to become economic refugees performing menial jobs will help heal the economy.

I now turn to consider the heavy workload in the courts. The current huge backlog of cases in our courts, I believe, can partly be blamed on the litigants and society at large. Our society, with progressive sophistication, has become extremely litigious as people assert their rights in the courts.

The modern trend is, however, to shift away from the courts and make more use of alternative dispute resolution mechanisms such as conciliation, mediation and arbitration. These are more expeditious and efficient modes of settling civil disputes, because the parties have the luxury of choosing their own judges and to control the time frame within which the dispute must be settled.

To facilitate more use of these cheap and expedient alternative methods of settling disputes, the Ministry of Justice ought to embark on a concerted outreach programme to educate members of the public on the virtues of these alternative methods of dispute resolution.

People and organisations need also to rely more and more on domestic remedies. Recently, a prominent political party comprising eminent lawyers and professors of law needed the court to tell them that they could resolve their domestic squabbles in terms of their own constitution.

For the due administration of justice, all the law enforcement agencies must unite and work together in tandem. So far I am pleased to say, the Police, the Attorney General's Office and the Prisons have not been found wanting in discharging their duties.

At this session the High Court is going to preside over 10 murder cases. The court is, however, concerned that this province has gained the notoriety of having the highest murder cases in the country.

The rate is as high as 60 percent of all the murder cases committed countrywide. It is the function of the provincial leadership and everyone concerned to educate their subjects on the virtues of peace and respect for the sanctity of human life.

Zimbabwe is our country; its destiny is squarely in our hands. We must always strive to redeem ourselves without mortgaging our precious country to foreigners.

With these few words, I now declare the 2006 legal year at Masvingo duly opened.

Once again I wish to thank you all for gracing this occasion. We shall all stand while Reverend Chimeri leads us in a closing prayer for the good Lord's blessing and guidance throughout this legal year.

Immediately after the prayer you are all invited to a small reception to which you will be directed by the Provincial Magistrate.

* Justice Chinembiri Ernest Bhunu is a Zimbabwe High Court Judge.

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