Justice system in the dock
Thursday, 28 June 2012 09:45
What could be the solution to all the problems in the judiciary service?
Chief Justice Chidyausiki is for a "carrot and stick" approach where an
improvement in remuneration is seen as crucial to stemming systemic
corruption, writes Tinashe Madava.
IN April this year, Chief Justice Godfrey Chidyausiku complained that the
lack of adequate funding was fuelling corruption in the justice delivery
His admission that the Judicial Service Commission (JSC) has had to accept
that the judiciary will never be adequately funded and so has to learn to
live with under-funding, rang alarm bells.
What really is the extent of corruption in the judiciary? How has it
affected the ordinary people in the street?
Critics argue that the state of the judiciary represents everything that is
wrong with Zimbabwe today. This group of critics argue that the corruption
starts at the very bottom, where justice delivery originates in terms of the
law. They contend that the police force is so corrupt that sometimes the
perpetrators of crime go scot free because they would have paid the
arresting officers to look the other way.
In some instances, police officers have been accused of conniving with
prosecutors and lawyers to the detriment of justice delivery. So, Chief
Justice Chidyausiku's lamentations while launching a Code of Ethics for the
judiciary service two months ago need further scrutiny. Spot on as he may
have been, it left a chilling question: Are innocent people being sent to
prison while guilty ones walk away free?
Law Society of Zimbabwe (LSZ) president, Tinoziva Bere, believes there is
some justification in concerns about corruption in the delivery of justice
but it is not confined to the judiciary alone. He says corruption pervades
the whole administration of justice chain.
"Corruption of the administration of justice system is present among some
police officers (the most visible ones being the Traffic Section), some
prosecutors (or Attorney General staff), some judicial support staff
members, some judicial officers themselves (magistrates and judges), some
lawyers (including very senior ones) and some prison officers," said Bere in
written responses to questions sent to him by The Financial Gazette
He charged that there are similar problems in quasi-judicial bodies such as
labour dispute resolution mechanism, local authorities, mining
commissioner's office, government licensing authorities and all public
offices that make quasi judicial decisions.
"Even land allocations do not escape the poison. The rot is not confined to
administration of justice. Our society is rotting and political patronage is
corruption," he added.
But Bere admitted that corruption of the administration of justice was the
worst kind as it undermines rule of law and the very orderly fabric of
"It is, however, not helpful for society to continue to replay one statement
without any investigation being done or some form of documentation or
redress. It is equally unfair and harmful to recklessly generalise. As
criticism becomes less and less fact-based and less and less objective, it
becomes dangerous sloganeering, which causes more harm than good. It can
lead to people calling for scrapping away of the justice system and
replacing it with extrajudicial processes. So we at the LSZ appeal to all to
do something and stop sloganeering," cautioned Bere.
Lawyer, Aston Musunga of Musunga Law Chambers, contends that the judiciary
has generally fared well.
"I think since independence, we have had a satisfactory judiciary system,
which consists of the lower court as magistrates then the High Court and
Supreme Court. We have also maintained a Labour Court," said Musunga.
"The only loophole I have seen is in terms of constitutional matters, which
have all been heard by the full bench of the Supreme Court.
"I am of the view that if we had an independent constitutional court it
would address constitutional matters far better since it would take off the
load from an already overloaded Supreme Court bench," added the veteran
The issue of a constitutional court has been raised in the current draft
constitution being debated by the Global Political Agreement parties under
the Constitution Parliamentary Committee, ZANU-PF is resisting having a
constitutional court, insisting instead, on the current set up which Musunga
contends as overburdening the Supreme Court judges.
However, while commending the system under which judges are appointed,
Musunga thinks that recent appointments to the bench have departed from
tradition and compromised justice delivery. In terms of the appointment of
judges, this has been made by the President on recommendation of the JSC.
"The system worked well from independence as the JSC followed output from
the University of Zimbabwe (UZ). The more senior lawyers would be appointed
first but as we went along, that system has been disregarded.
"Junior lawyers have been appointed to the bench most probably ahead of more
senior members . . . the system has now been compromised," said Musunga.
So, do we have the right crop of judges at the helm of justice delivery?
One lawyer who requested anonymity said while the judges could be qualified,
political partisanship had pervaded the judiciary and compromised justice
delivery especially in matters to do with political violence.
He made comparisons on the treatment of the Shamva policemen who allegedly
murdered Luxmore Chivambo and injured 11 others at a mine compound in one
night of "madness" this year and the murder of a policeman in Harare's Glen
View high density suburb last year. The Shamva policemen were granted bail
within two weeks, ranging between US$50 and US$100 while the Glen View
suspects who are all believed to be Movement for Democratic Change
supporters, are still languishing in remand prison. They were recently
"Such a scenario exposes the judiciary to criticism because while the Shamva
policemen acted knowingly and under instructions from a senior officer, and
they got bail quite easily the Glen View 29 have been in the cells for close
to a year," said the lawyer.
At the time, Deputy Minister of Justice and Legal Affairs, Obert Gutu
clashed with the Attorney General (AG) Johannes Tomana as he ramped up
pressure for a level playing field in justice delivery. Gutu has for a long
time accused the AG of bias when it comes to cases with political links.
"I feel that the AG's office is severely compromised when dealing with
politically sensitive cases," said Gutu who has consistently described his
ministry as a haven of corruption.
"This just shows the general pervasion of the justice delivery system. This
is a politicisation of the matters that are supposed to be dealt with
professionally. In all criminal matters, the court should always lean in
favour of the liberty of the subject.
"This is a well grounded principle in Roman Dutch criminal jurisprudence,"
said Gutu, a lawyer by profession, in an earlier interview with The
Early this year, Gutu attacked Zimbabwe's justice system at a Southern
African Development Community (SADC) meeting in South Africa, alleging that
the system is riddled with "corruption, political bias, and in some cases,
"Many political activists have been hastily arrested on flimsy and or
trumped-up criminal charges, detained for inordinately long periods of time
and eventually acquitted after undergoing trial. It is a fact that in most
politically sensitive criminal cases, the Attorney General's office has had
a spectacular if not embarrassing failure rate," he said at the SADC
But Bere said; "In respect of politically sensitive cases, the current High
Court and judiciary has suffered from the stigma of the past. That human
made crisis that saw may judges forced out of office or unable to continue
and a new bench appointed.
"That stigma lives today and is visible in the absence of praise when the
courts do well and the immediacy of criticism when they fail.
"The LSZ understands the history of this problem and has chosen not to
participate in the perpetuation of the stigma and rather seek ways to
actively engage the judiciary and offer assistance in retraining of both the
profession and the judiciary"
That some judges have benefited from the land reform through pushing out
other beneficiaries of land reform has also increased criticism of the
judiciary. The farm row between UZ professor Lovemore Gwanzura and High
Court judge Justice Chinembiri Bhunu has raised a stink. While another High
Court judge, Justice Francis Nere is also involved in a farm row in
So, what could be the solution to all the problems in the judiciary service?
Chief Justice Chidyausiki is for a"carrot and stick" approach where an
improvement in remuneration is seen as crucial to stemming systemic
corruption. He believes that wielding the stick alone would not help
although he is for the imposition of severe penalties for those found guilty
Justice Minister Patrick China-masa is also on record lambasting corruption
in the delivery of justice in the country and acknowledging that documents
disappear from court records.
"While I can live with the outcome of a court judgment that is bad in law
and with a factual basis which has been erroneously arrived at due to
incompetence of a judicial officer, I cannot live with an outcome of
judgment that has been bought," said Chinamasa.
"More seriously, members of the public allege rampant corruption in the
courts involving all key players in the justice delivery system. (They
include) judicial officers and support staff, clerks, interpreters and the
lot of police investigating officers, prosecutors, lawyers in the private
sector not to mention touts who impersonate lawyers, prison officers whether
in civil and criminal matters," China-masa has previously said.
But, while his statement might have reflected a true picture of the goings
on in the justice system, it remains to be seen whether any action would be
taken to stem the tide. Bold measures transcending the whole of society have
to be adopted. A whole culture has to change to a point where bribery is
totally unacceptable and people are afraid to even attempt it.
The LSZ president cautions on a wholesale labelling of the judiciary as
corrupt. He contends that while his organisation has accepted, based on
repeated complaints, that the chain of administration of justice has been
polluted by individuals who are corrupt, they have been cautious not to
undermine the "very foundations of administration of justice and to tarnish
those whose hands are clean. The administration of justice still works.
There are many honest serving members in the administration of justice