The Sunday Mail
Tazorora Musarurwa
In 2010, while giving the key note address at the opening of the legal year, then Judge President Rita Makarau removed kid gloves.
The state of decay in which the judiciary had found itself operating, no longer required the business as usual approach.
She opened her speech by congratulating the principals of the Government of National Unity for forming such a government, something that had been urged in the previous year’s speech of opening the judicial year. She, however, made it very clear that she did not believe for a second that it was such calls that urged the parties to finally come to a consensus.
What the learned judge was in fact making sure was that this speech would not be like the usual run of the mill speeches which only end in the courtroom, but will be heard in all the corridors of power.
The extracted excerpt from the learned judge’s speech clearly puts into perspective what was going through the mind of the judge at that time:
“Allow me to digress briefly and express a view that has exercised my mind for quite some time and I must confess, a view that should not ordinarily occupy the mind of a judge.
Zimbabwe subscribes to the doctrine of separation of powers amongst the three organs of state. We in the judiciary have no role in matters of the executive and of the legislature. The reverse should also hold.
However, I am of the view that the doctrine of separation of powers has been applied against the judiciary to place it in an isolation that is neither splendid nor beneficial to anyone.
AS citizens, we in the judiciary witnessed debates held at political levels as to the number of legislators that can effectively represent the population in the sphere of law making and providing oversight over government spending and government activities.
The result of that debate was the creation of the second chamber to cater for the needs of the populace. It is a welcome development as it seeks to enhance efficiency and a better service to the populace.
We even hear of late that the legislature is to erect a state of the art parliament that will cater for the increase in the number of legislators and one that will include on site accommodation for legislators coming from outside Harare, in the form of a motel. Again as citizens, we witnessed debates on the creation of the Government of National Unity.
Ministers were appointed to various ministries and we have seen the careful thought that has gone into ensuring that every aspect of the executive function has a responsible minister or two overseeing it. Again we applaud the development as it seeks to enhance efficiency on the part of the executive.
Resources were found to cater for the increases in the legislature and in the executive, to ensure that these two arms of state deliver effectively to the populace.
As we speak, four Governors and Resident Ministers and a host of Senators and Members of Assembly serve the same population that the three judges in Bulawayo attempted to serve during the year 2009.
A convenient answer from the politicians will be that different considerations apply amongst the three organs of state. This is indeed correct. But should service to the populace not be the paramount consideration?
Separation of powers surely does not mean separate development of the organs of state? Or does it?
I have no further submissions to make on the digression”
In the same speech Justice Makarau lamented the fact that the Judicial Service Act that had been enacted in 2006 was still not in operation as it was waiting to be put into operation by the President. For this reason, she decried at not being able to give a full overview of the entire judiciary as the magistrates, who hear most of the cases, still fell under the Public Service Commission.
This seemed to be a Waterloo speech because after its pronouncement a number of changes came into effect.
On 18 June 2010, the Judicial Service Act came into operation. This was a milestone for magistrates.
I remember back in 2007 when I was a junior magistrate in Murewa, my then superior, one Mr Magwagwa (MHSRIEP) cajoling me not to consider resignation because the Judicial Service Act was going to improve our conditions of service. We would even get a station vehicle, he would say. Unfortunately, I could not wait for that and I resigned later that year to pursue postgraduate studies.
In May 2010, just before the bringing into operation of the Act, Justice Makarau had been promoted to the Supreme Court and was now a Judge of Appeal.
I stand corrected, Justice Makarau, although having sat on the Supreme Court bench, has never written a Supreme Court judgment.
This is so because soon after her appointment, Makarau was appointed the Acting Secretary of the Judicial Service Commission (JSC).
Clearly, the authorities wanted Makarau to be responsible for fixing that which she claimed had been harming the judiciary.
Her failure would leave no one to blame. Considering the political and economic environment, she has done well.
Before proceeding let me take a little time to explain what the JSC is and why it is such a vital cog in the administration of justice and our constitutional setup.
The JSC is a constitutional body and not a statutory one. While it is a constitutional body, both the old and new constitutions delegated parliament with the responsibility of enacting a law that gives the JSC additional functions.
This is why the Judicial Service Act becomes of paramount importance.
Section 190 of the current constitution gives just three main functions to the JSC which are:
i. To tender advise to the government on any matter pertaining to the judiciary which advice must be regarded by the government;
ii. To promote and facilitate the independence and accountability of the judiciary;
iii. To make regulations in consultation with the Minister of Justice
The new constitution also mandates the JSC with the task and procedure of nominating judges including acting judges.
Unlike the old constitution, the new constitution makes it mandatory for magistrates to fall under the JSC and makes it mandatory for there to be an act of parliament providing for such.
The JSC further has the important task of recommending to the President to establish a tribunal to look into the question whether a judge has committed an act of misconduct or remains suitable to hold the office of a judge.
The constitution also seems to give the JSC the same oversight role with regard to the office of the Prosecutor-General. These are also new powers given to the JSC by the new constitution.
These powers have been recently flexed and I will comment briefly on the use of these powers within this article.
The JSC, in consultation with the Ministers for Justice and Finance and with the approval of the Presidents, sets the salaries, allowances and benefits for all judicial officers.
In addition to these powers the JSC must be consulted by the President when he makes appointments of Chairpersons of other constitutional commissions such as Zimbabwe Electoral Commission, Zimbabwe Human Rights Commission and Anti-Corruption Commission.
The appointment of a Prosecutor-General must also be with consultation with the JSC.
What is clear from the above is that the JSC not only plays a key role as custodian of judicial services in Zimbabwe but is given a status higher than all the other independent commissions as it is participates in the appointment of the chairpersons of those commissions.
This status results from the fact that judges are eminent persons in society and their decisions, although not above rebuke, are considered to be made rationally without the imperfections of politics, bias, prejudice or such other forms of discrimination.
The JSC could be said to be the church of the political state in Zimbabwe – where all the other organs go to in search of wisdom and untainted advice.
Unlike South Africa and other jurisdictions, Zimbabwe’s JSC is not constituted by members of parliament or politicians.
It is constituted by judges and other eminent legal persons.
The JSC thus has the onerous task of being perfect. While perfection remains a Utopian ideal, Society expects it anyway from certain people and institutions.
We are all sinners but people do not expect their church leaders to sin. That is the position the JSC finds itself in.
It is a super commission and society does not expect anything less. The JSC is aware of this onerous task and it is for this very reason it promulgated the Judicial Service (Code of Ethics) Regulations, 2012.
The Code of Ethics regulates judicial life not just in the court room but outside as well. Members of the judiciary are required to maintain high standards of integrity wherever they are.
A reading of the Code makes it very clear that our judiciary is alive to the high standards expected from them by society. This brings to fore the fact that this high standard is expected not only from individual judicial officers but from the JSC as an institution with overall responsibility over those judicial officers amongst other responsibilities.
This is a fact which the JSC is also alive to. This can be seen by the transformation of the judiciary ever since Makarau took over in 2010. Members of the public may have noticed an improvement in the provision of judicial services post 2010. For instance, there is now signage clearly identifying the courts.
The High Court in Harare has had significant renovations. The toilets are no longer living stink bombs.
There is abundant stationery. Clerical staff can confirm the provision of teas. (Tea is very important in the civil service.) Courts and offices now have new furniture restoring dignity to the courtrooms and support offices.
There are also innovations that have been introduced. The High Court’s now scan all documents filed and store them in an electronic database.
There is therefore an electronic record and gone are the days when an entire record could go missing and little could be done about it.
To be continued next week
Tazorora TG Musarurwa is a lawyer in private practise and writes in his personal capacity. He can be contacted at [email protected]
