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Your Honour, it's not just about money
Gugulethu Moyo
January 19, 2007

http://www.theindependent.co.zw/viewinfo.cfm?linkid=11&id=9825&siteid=1

WHEN it comes to questions of money, everybody is of the same religion, so said Voltaire, the 18th century neoclassical French philosopher. Indeed, it is difficult not to agree with Judge President Rita Makarau-s assertion that justice in Zimbabwe is imperilled because the country-s judicial institutions are inadequately funded.

In a speech to mark the start of the legal calendar, Justice Makarau made a forceful case for the government to increase funding to the judiciary: last year, the High Court failed to go to circuit in the province of Masvingo. As a consequence, 104 murder trials did not take place.

Criminal suspects are being held in what she describes as "inhuman, degrading" conditions at police stations. Witnesses in criminal cases are paid $5 a day for their attendance in court, an amount which she considers to be "an insult".

The courts operate without computers or adequate stationery, and she adds that the court libraries have been "aptly described" by the chief magistrate as "varying in their degrees of uselessness".

The damning piece of evidence: "Reports have reached my office and the office of the chief justice that support staff are engaging in corrupt practices," she told her audience.

Who could have disagreed with the judge-s statement that: "Judging from the paltry funds that are allocated," as she states, "the place and role of the judiciary in this country is under-appreciated"?

The hard fact is that: "For justice delivery, we cannot escape the local system no matter how rich or influential we are. We cannot escape the inefficiencies created by lack of adequate funding.

"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 central government," she said, closing her case.

She is right, of course. And there must have been many converts among her audience.

As with all other crumbling institutions of government, money is needed. It is needed now in order to prevent total collapse.

But throwing money at the problems of Zimbabwe-s judicial institutions will not solve them all. The shortage of funds is not the whole problem.

Other derelictions of the executive arm of government equally undermine the delivery of justice. Hundreds of court judgements remain unenforced, ostensibly because the government does not agree with the orders of the court and, unlike in this particular instance where Justice Makarau has decided to put her head above the parapet in order to draw public attention to a financial crisis, judges need not break taboos in order to hold those responsible for defying the law in contempt of court. But, they have yet to do so.

In the hands of judges, scores of cases remain undecided in instances where it appears that the political, not the monetary, costs would be too high.

These days, Justice Makarau and Chief Justice Godfrey Chidyausiku may be receiving reports of corruption among their staff, but the corruption of judges has long been the subject of debate about justice in Zimbabwe.

The actions of some judges who, years ago, accepted land from the government under legally questionable arrangements created the perception that those judges were willing to subordinate their obligations to justice in order to amass wealth.

Some would say that this is the cause of the judiciary-s present predicament and that it should not come as a surprise that justice itself is not valued because certain judges have done much to devalue its ideals.

And, arguably, the palpable failure of the higher courts to uphold fundamental rights — freedom of expression, freedom of association, the right of citizens to elect their government — and the absurd departure, in numerous cases, from established legal principles in order to legitimate executive action have done more to harm the administration of justice in the country than any shortage of funds, no matter how serious, could ever do.

Justice Makarau may be pleading on behalf of the judiciary now, but when those who were more free to speak — in this case ordinary members of the legal profession — marched last year to protest the encroachment of the government on judicial independence, her colleagues in the Supreme Court bolted the door and refused to hear them.

And just last year speakers at the opening of the courts used the podium to issue thinly veiled threats to lawyers who dared to speak out in defence of the integrity of judicial institutions.

It makes you wonder just how bad things must be.

* Moyo is a Zimbabwean lawyer who works for the International Bar Association.

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