LEAVE US ALONE – JUDICIARY
The Herald 11 January 2011
Court Reporter
Courts of law are not political tribunals and the executive and the legislature should not interfere with the judiciary on matters pending before the courts, Chief Justice Godfrey Chidyausiku has said.
This, he said, was central to the independence and impartiality of the judiciary.
In his speech the mark the official opening of the 2011 Legal Year at the High Court, Chief Justice Chidyausiku noted that the separation of powers was critical for an independent and impartial judiciary.
“The tenets of the doctrine are not only meant to stop the executive and the legislature from interfering with the judiciary and vice versa, but to keep each of the three arms of the State separate from each other,” Chief Justice Chidyausiku said.
He said the doctrine demands that for a functional State each of the three arms must respect the constitutional sovereignty of the other two.
This comes at a time when some members of the executive and legislature were attempting to arm twist the judiciary in various cases.
In November last year, Justice and Legal Affairs Minister Patrick Chinamasa complained after Parliament summoned him and businessman Mutumwa Mawere to explain the circumstances that led to the placement of SMM Holdings under reconstruction.
He objected to giving oral evidence to the Parliamentary Portfolio Committee on Mines and Energy saying it would be sub judice as several court challenges instigated by the businessman were yet to be finalised.
Hearing them – the Minister said – would infringe and undermine the role of the judiciary to independently hear, adjudicate and determine matters without interference and undue influence by either the executive or the legislature.
During the same month the Co-Minister of Home Affairs Mrs Theresa Makone was in the eye of a storm when she wrote a letter to the Attorney-General Mr Johannes Tomana complaining about the validity of some offer letters issued under the land reform programme.
She copied the letter to Chief Justice Chidyausiku who was ironically presiding over a case at the Supreme Court involving offer letters.
Both the AG and the Chief Justice are supposed to operate without influence from anyone.
In February 2009, Prime Minister Morgan Tsvangirai offered himself as surety for the release of MDC-T treasurer Roy Bennett who was facing treason-related charges.
PM Tsvangirai had written to all judges in the High Court offering himself as surety, a development legal experts describe as tantamount to the executive interfering in the work of the judiciary thereby compromising its independence.
Said Chief Justice Chidyausiku: “We in the judiciary are very clear that we are courts of law and do not aspire to become members of the executive or legislators. Our constitutional mandate is to interpret the law and apply the law to the cases that come before us. We provide legal solutions to legal problems.
He added that although now and again political disputes spill into court, the courts did their best to resolve them.
“When that happens we do our best to resolve such disputes. It should, however, be appreciated by all and sundry that courts are courts of law and not political tribunals,” he said.
The Chief Justice expressed concern over improper communication by the executive to the judiciary of their legal opinion on pending cases.
He said it was equally improper for Parliament, in plenary or committee, to deliberate on matters pending before the courts and which are yet to be determined.
“A functioning democracy is premised on sound principles enshrining the separation of powers and that while the judiciary and the executive all occupy influential positions in society, we are not one and the same and out decisions on issues need not necessarily be the same,” noted Chief Justice Chidyausiku.
He said 2010 saw a noticeable increase in the number of legal practitioners and other members of the public communicating with the Press on matters pending before the courts.
“Not only were they communicating on the factual background, which is permissible, but going on at great length, as to how the matter should be determined, thus second-guessing the courts.
“The principle that protects matters sub judice is as old as the legal system itself.
“It is a rule that is designed to ensure that there is a fair trial, one that is not influenced by matters that are extraneous to the provisions of the law,” he said.
He said the rule against communicating on matters that are pending in courts should be balanced against the right of the populace to information.
“Thus the reporting of the factual background surrounding the matter before the court is permissible as recognition of the right of information.
“What is not permissible is to intentionally or unintentionally influence the outcome of the trial by not commenting on the facts but giving legal meaning to the events and commenting on the likely outcome of the trial,” said Chief Justice Chidyausiku.
“Worse still, it is in violation of the rule protecting matters sub judice for any other fora to publicly pass its own judgment on facts that will come before the court.”
Chief Justice Chidyausiku welcomed the expanded role of the Judicial Services Commission describing it as a historic development saying it would enhance the independence of the judiciary.
The Judicial Services Act was brought into operation in June last year.
The Act brings all judges of the Supreme Court and High Courts, all presidents in the administrative and Labour Courts, magistrates and Public prosecutor’s Office under the JSC from the Public Service Commission.
Chief Justice Chidyausiku chairs the JSC.
He also touched on some of the challenges that the JSC encountered including inadequacy of funds required in running the commission.
He said it was impossible to hire more qualified staff and manage the commission’s secretariat.
The Chief Justice bemoaned what he described as “embarrassingly low” service conditions and low remunerations of judges and other judicial officers.
“The expectation is high that conditions of service for all judicial officers will improve significantly in 2011 with the removal of the Judicial Services from the Public Service,” he said.
He noted that while the move from the PSC into the JSC would enhance the independence of the judiciary, it did not come with an independent source of funding.
“The judiciary still has to make recourse to Treasury for its needs and the constraints on the national purse are still self evident,” he said.
He implored the executive, the corporate world and well wishers to support in the funding of the JSC.
The contributions, he said, could be made through a trust fund to ensure the insulation of the judiciary from the benefactors.
In the future, he added, the commission has to come up with a strategic plan to work on improving service delivery.
He said the commission would set visible benchmarks that it seeks to achieve in the near future.
“In this regard issues of equipping and funding the courts will loom large, as judicial officers cannot deliver when and if they are not equipped to do so,” he said.
Chief Justice Chidyausiku also said accountability by the judiciary would also have to be factored into the plan.
He applauded the Zimbabwe Republic Police, Zimbabwe prison Service and the Attorney General’s Office for the important role they play in the administration of justice.
He said without the efforts of these offices courts would not be able to operate and implored them to continue co-operating and enhancing the levels of liaison for justice delivery to scale greater heights of efficiency.
Chief Justice Chidyausiku commended judicial officers and support staff for soldiering on despite their unexciting conditions of service.