The Sunday Mail
Kuda Bwititi Chief Reporter
Under-performing High Court judges face disciplinary action and possible dismissal from the bench under new rules tailored to promote judicial efficiency and excellence. The dispensation, which takes effect this legal term, has the Chief Justice assessing the individual performances of judges based on their rulings.
Under-performers will be answerable to the Judicial Service Commission which can advise the President to set up a tribunal to assess the performances in question.
The tribunal will then determine the judges’ fate, with a possible outcome being dismissal.
Section 187 of Zimbabwe’s Constitution provides that a judge can be removed from office for, among other issues, gross incompetence or gross misconduct.
The JSC has the prerogative to advise the President on the question of removing any judge and if such a recommendation is made, the Head of State must appoint the said tribunal.
JSC Secretary Justice Rita Makarau told The Sunday Mail that the Commission communicated the new rules to judges after Chief Justice Godfrey Chidyausiku’s recent warning against lackluster work.
She said, “We have given a warning to the judges to say that this term, together with the Office of the Chief Justice, we are now going to be closely monitoring them and they are going to be held accountable.
“It has been the tradition that at the end of each new term, the Chief Justice asks for a review of judges’ performances and compares them against those of their peers.
“In the past, some judges got away without any action being taken against them, but for this term, it is not going to be business as usual for those who under-perform.”
She added, “There are those who stand out for good performance while others stand out for poor performance. (After their cases have been brought to the JSC), the concerned judges will be allowed to comment and explain why they failed to perform to expectations.
‘‘These explanations will also be used to determine their fate.”
Justice Makarau said the number of judgments set aside by the Supreme Court was also an assessment benchmark.
The Supreme Court is empowered at law to nullify a High Court judgment.
“The performance of judges does not involve the quantitative side alone, it also involves the qualitative aspect. While on the quantitative side, a judge may be deemed to have performed poorly based on the number of judgments made, one of the benchmarks of the qualitative aspect is whether a judgment has been set aside by the Supreme Court.
“Other indicators on the qualitative side are adverse comments made regarding a judgment.
‘‘So it is not just a matter of counting the judgments that one has made, but it also involves looking at the merit of judgments.”
At the opening of the 2017 legal year, Chief Justice Chidyausiku said although judicial service has improved, “one or two judges remained unacceptably poor”.
He disclosed that the JSC asked him to caution one judge for poor performance last year.
“. ..There are, however, one or two judges whose performance remains unacceptably poor. In one instance, the Judicial Service Commission directed me to write a letter of reprimand to the judge concerned.
“The Judicial Service Commission also made it clear that they did not accept flimsy excuses such as ‘I cleared all the work assigned to me’.
‘‘The Commission also emphasised that they expected judges to write judgments and not simply make determinations.
“The judge in question was warned of disciplinary action in the event of no improved performance.”
Harare-based lawyer Mr Terrence Hussein told The Sunday Mail last week, “The policy to assess judges is fairly a recent development, which was introduced by the Chief Justice a couple of years ago, and I think it is commendable that they are fine-tuning the system every year.
“There is no specific law that requires judges to be assessed but the Chief Justice has used his powers as the chief administrator of justice to promote a better judiciary system.
“Given that judges are appointed for life until their retirement age, it is important to have a system to monitor their performance.”
University of Zimbabwe law lecturer Mr Rodgers Matsikidze added, “It is very important to assess the performance of judges to ensure the judiciary system is efficient. What we are doing is similar to what is being done in other countries.
“In Europe, for example, they classify cases according to civil, trial, motion, pre-trial cases and so on. Under this case classification, the judge is given a target that is scientifically determined to say you should have a certain number of trials for each class.
“So, if you are a judge, you then seek to meet those targets and you are rated according to those targets. It’s quite a composite set of rules, but if you don’t meet the targets, you are still required to give your side of the story if there were compelling reasons why the targets were not met.
‘‘If the reasons are not justifiable, you are deemed to have underperformed.”
