RESPECT CONSTITUTIONAL SOVEREIGNTY OF JUDGES
We publish here the full text of the speech made by Chief Justice Godfrey Chidyausiku at the opening of the 2011 Legal Year in Harare yesterday.
Mr Anderson
Allow me to recognise and acknowledge the presence of:
· The Minister of Justice and Legal Affairs;
· The Attorney-General;
· Members of the Judicial Services Commission;
· Deputy Attorney-General’s here present;
· The Deputy Chairman of the Law Development Commission;
· The Permanent Secretary for Justice and Legal Affairs;
· The Commissioner-General of the Zimbabwe Republic Police and his Deputies;
· The Commissioner-General of the prison Service;
· His Worship the Mayor of Harare;
· The Clerk to Parliament; and
· Senior Government and police officers here present.
It gives me great pleasure to welcome all of you to this year’s historical event as we open the 2011 legal year. For us in the Judiciary it is an historic event because, after years of lobbying and agitating, the judiciary is finally united. The coming into being of the Judicial Service and the expansion of the mandate of the Judicial Service Commission to become the employer of all magistrates and support staff in the courts are significant milestones in the history of the Judiciary in Zimbabwe.
Creation of the Judicial Service
On 18 June 2010 His Excellency, the President, brought into operation the provisions of the Judicial Service Act (Chapter 7.18). One of the immediate effects of this was to create a Judicial Service, whose employer is the Judicial Service Commission. Of necessity, the functions of the Judicial Service Commission were expanded to take into account its new role as the employer of officers and support staff in the Judiciary. Thus, with effect from 18 June 2010, all Judges of the Supreme Court and Higher Courts, all Presidents in the Administrative and Labour Courts, the Public prosecutor, all magistrates and all staff working in the courts and in the Public prosecutor’s Office adopted a new totem and they all became members of the Judicial Service.
Challenges
Whilst a welcome move, the creation of the Judicial Service, and the accompanying expansion of the mandate and role of the Judicial Service Commission, has not been without its challenges.
The Judicial Service came into being in the middle of a financial year. Financial arrangements for the running of the Commission’s affairs were inadequate and were still controlled by the Ministry of justice and Legal Affairs. The inadequacy of funds made it impossible for the commission to hire any qualified staff to manage the affairs of the Commission at secretariat level. Consequently, the Commission made a robust decision to second staff from the courts to set up and run the Commission on a temporary basis whilst awaiting the provision of a budget to find the hiring of suitably qualified personnel. I would like to take this opportunity to acknowledge the sterling work of Makarau JA and her skeleton staff that they have done in setting up the Secretariat of the Commission. With the approval of the Commission’s budget for the financial year ending 2011, a few of the posts within the Commission’s Secretariat will now be filled substantively.
It is not a secret that the conditions of service of judges and other judicial officers are embarrassingly low. Whilst the coming into operation of the Judicial Service Act moved the magistrates and support staff from the Public Service into the newly created Judicial service, this move was not accompanied by a simultaneous improvement in the conditions of service of the transferred members. The members remained at the low levels of remuneration that Treasury had budgeted for them as employment costs for that year.
The expectation is high that the conditions of service of all judicial officers will improve significantly in 2011 with the hiving off of the Judicial Service from the Public Service. Indeed it is also my fervent hope that this will be the case. However, judging from the allocations that have been set aside by Treasury for employment costs, it is highly unlikely that salaries for all who are paid from the common purse will improve significantly.
In my view, it must be a sobering thought to all of us in the Judiciary that, whilst the move from the Public Service into the Judicial Service will enhance the independence of the Judiciary, it does 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.
As chairperson of the Judiciary Service Commission, I do not for one doubt that task of building a unitary Judiciary with acceptable levels of remuneration for all of its members is daunting. I, however, believe that it is achievable and am fortified in my belief that the Judicial Service Commission will receive support from all – the Executive, the citizenry and from its members – because it is a truism that without an independence and well resourced Judiciary there can be no justice.
Planning Ahead
It is the intention of the judicial Service Commission to forge into the future on the basis of a strategic plan, clearly outlining our constitutional mandate as the Judiciary and how we can improve on service delivery. In coming up with this plan, we hope to set for ourselves visible benchmarks that we hope to achieve over the years. In this regard, issues of equipping and resourcing the courts will loom large, as judicial officers cannot deliver when and if they are not well equipped to do so. Issues of accountability by the Judiciary will also have to be factored into the plan as we cannot hope to be independent without being accountable.
The fact that the national purse cannot fund the Judiciary to acceptable levels admits of no debate. Consequently, serious consideration should be given to the enlistment of assistance from the corporate world and other well-wishers to contribute, through a trust fund, towards the funding of the Judicial Service. The contributions through a trust fund, towards the funding of the Judicial Service. The contributions through the trust fund will ensure the insulation of the Judiciary from benefactors.
2010 Under Review
I have dwelt at length on the setting up of the future plans of the Judicial Service Commission. As I indicated in my introductory remarks, we regard the establishment of the Judicial Service and the expansion of the mandate of the Judicial Service Commission as very important milestones in the judicial history of this country.
The occasion of the official opening of the legal year has always been an occasion to review the work of the superior court over the past year. To fulfil this tradition, I will now give you the highlights of the performance of each of the superior courts over the past year.
Supreme Court
The Supreme Court continued to carry out its dual role, serving as the Constitutional Court and final court of appeal in the land.
During the course of the year under review, the Supreme Court received a total of 31 constitutional applications. Twenty-five of these were not ready for set down, mainly because the heads of argument had not been filed by the applicants. Five were disposed of, whilst one was withdrawn.
The above statistics give the impression that there is a huge backlog of constitutional applications pending before the Supreme Court. This is far from being true. About 50 percent of the constitutional applications, or to be precise, 17 out of 31 filed with the Supreme Court, were referrals from the magistrates’ courts across the country wherein white farmers mainly were resisting their eviction from gazetted farmland. Out of these 17 applications 13 are not ready for set down as the applicants have not filed their heads of argument or pursued the applications further.
Our court system is adversarial and it is party driven. When a party files an application with the Supreme Court, the court will not take it upon itself to set the matter down for hearing. Our rules provide that the party seeking relief from the court will do all that is required in terms of the rules to prepare the matter for hearing. It is only when the Registrar is satisfied that all the Rules of the Court have been observed that a matter is then set down. This explains why some applications take long before they are heard. The parties would have sat back after filing the application with the Court and the other side would have equally not demanded action by the applicant. The Court has no role to play in making matters ready for hearing.
Whilst the above holds true for all constitutional applications, with regard to constitutional applications on land matters the matter has changed somewhat with the handing down of the Supreme Court decision on 26 November 2010, in the case of Commercial farmers’ Union and Nine Others v The Minister of Lands and Rural Resettlement and Six Others, SC81/10. This judgment has had the effect of determining virtually all the constitutional issues in the constitutional applications relating to land acquisition pending before the Supreme Court.
The Supreme Court also received more civil than criminal appeals from the High Court. A total of 134 civil appeals were noted against the High Court decisions whilst 29 criminal appeals were noted. Of the civil appeals, 18 were disposed of and five were withdrawn whilst 111 are not yet ready for set down. The main constraint creating the bottleneck is the preparation of court records. No appeal can be heard without a record.
Due to the amendments in the law, which now only allows for appeals on points of law to be noted from the Labour Court, the Supreme Court received 34 appeals from that court and only five from the Administrative Court.
High Court
The High Court welcomed the appointment of three new judges and the return of Justice George Chiweshe as the Judge President. I take this opportunity to welcome justices Mawadza, Mathonsi and Mutema to the High Court Bench and wish them and the Judge President satisfying careers in the High Court.
The appointment of the three new judges has seen Bulawayo High Court having a complement of four judges, which greatly eased the burden of the judges in the Court.
Generally, the High Court was busy, with more cases having been filed in 2010 as compared to 2009. For example, 186 criminal trials were set down during 2010 as compared with 115 during 2009.
The increase in the number of criminal trials coming to the High Court is a cause for concern as it tends to indicate that levels of criminality in the country are rising instead of decreasing.
I, however, wish to commend the Police for a good job well done in apprehending these criminals even though this has the effect of increasing the workload of the courts.
Administrative Court
The Administrative Court has over the past year seen reduced capacity in terms of both manpower and workload. It is currently manned by two Presidents. Currently, its heaviest workload is rent appeals. During the year it received a total of 31 compared to 36 received during 2009 and 46 received in 2008. The decrease in workload of the Administrative Court must be viewed against backdrop where land cases, which used to comprise the heaviest workload for the court, have dwindles to almost zero, following the amendment to the Constitution and to the Land Acquisition Act on matters relating to land acquisition for rural resettlement. The Ministry of Justice and Legal Affairs may have to rethink on the efficacy of retaining this court as an independent and full-time court given the low levels of workflow into the court.
Labour Court
The housing of the Labour Court in Robinson House continues to pose both health and convenience problems. The building is too small for the size of the court and the number of Presidents manning it. It has perennial water problems as the piping and plumbing in the building is reportedly old and needs to be replaced.
The secretariat of the Judicial Service Commission will engage the relevant departments of Government over the issue, with a view to securing appropriate accommodation for the court. The Labour Court is still battling to contain the backlogs that have accumulated over the years, and it is my hope that in 2011 significant strides will be made to bring the backlog under manageable levels.
Public Protector
The provisions of the Judicial Service Act bring the office of the Public protector under the Judicial Service Commission. The Public protector is required by the Constitution to report to Parliament. This has the effect of placing the Public protector in an invidious position where she is now subject to two authorities. Making the Public protector accountable to two authorities is undesirable. Serious consideration should be given to rectifying this anomaly.
The Doctrine of separation of Powers and Matters Sub Judice
Recent media reports have placed under the spotlight issues relating to the doctrine of separation of powers and the need to refrain from commenting on matters that are sub judice or under consideration by the courts. In the light of that, I wish to make the following observations. We in the Judiciary regard the separation of powers as very critical and a sine qua non for an independent and impartial Judiciary.
The tenets of the doctrine are only meant to stop Executive and the Legislature from interfering with the Judiciary and vice versa, but to keep each of the three arms of State separate from each other. The doctrine demands that for a functional State each of the three arms must respect the constitutional sovereignty of the other two. 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. However, we accept as inevitable that now and again political disputes spill into the courts. 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.
May I also take this opportunity to make the observation that it is inappropriate for members of the Executive to communicate to the Judiciary their legal opinions on matters that are pending before the courts. It is equally inappropriate for Parliament, in plenary or committee, to deliberate on matters that are pending before the courts and 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 our decisions on issues need not necessarily be the same.
On a similar note, during the year 2010 there was a noticeable increase in the number of legal practitioners and other members of the public communicating with the Press on matters pending before the court, not only commenting 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 legal trial, one that is not influenced by matters that are extraneous to the provisions of the law.
The rule against commenting on matters that are pending trial has to 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 to information. What is not permissible is to intentionally or unintentionally influence the outcome of the trial by not only commenting on the facts but giving legal meaning to the events and commenting on the likely outcome of the trial. Worse still, it is a 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 courts.
Acknowledging Other Stakeholders in the Justice Delivery System
Finally, I would like to acknowledge the important roles that are played by the Police Force, the prison Service, the Office of the Attorney-General and the legal profession in the administration of justice. Without the efforts of these offices, the courts would not be able to operate. It is my hope that all these offices will continue to co-operate and enhance the levels of liaison amongst themselves so that we can all witness justice delivery scaling to greater heights on efficiency.
I also wish to commend judicial officers and support staff in all the courts who have soldiered on despite their unexciting conditions of service.
With these remarks, I pronounce the 2011 legal year open. The court will now stand while Archbishop R. C. Ndlovu of the Roman Catholic Church will lead us in prayer, after which the Court will adjourn.