The Sunday Mail
Tazorora Musarurwa
Continued from last week
The Judicial Service Commission has a website where court rolls are posted and new judgments constantly updated.
In Harare, the High Court now has electronic court rolls on the walls and everyone is able to see the rolls that are also updated electronically.
Courts now have station vehicles. (I probably should have been more patient.)
Borrowing from other advanced jurisdictions, the JSC is now appointing recent graduates or its own legal staff to clerk for judges.
This practice allows judges to assign research tasks to the clerks while at the same time giving the clerks practical experience on the high court process and the decision making process of judges.
By taking their experience back to the lower courts the expectation is that justice is done in the lower courts as it is done in the superior courts.
The refurbishment and renovation of Mashonganyika Building, which housed the old Administrative Court, into the Constitutional Court can also be traced to Justice Rita Makarau pointing out there were plans for a new Parliament yet nothing seemed planned for the judiciary.
The building, although still on the small side, befits the stature of the Supreme and Constitutional courts.
Those who have passed by the building will witness the presence of the latest Discovery Land Rovers; a benefit that was not there in the old JSC. This should keep our judges motivated.
There is more that still has to be done and the JSC is not oblivious to this. The JSC is finalising its 2017-2020 strategic plan.
The current strategic plan coves 2013 to 2016. This plan was reviewed in 2014.
It is oft said, failing to plan is planning to fail. From a management perspective it is therefore pleasing that the JSC takes the issue of the strategic plan is very serious.
In the absence of a public relations officer within the JSC, information is not easily available. Decisions made by the JSC are not readily known until the press catches a scoop. Perhaps, the JSC should consider investing in a professional PR person.
While these improvements deserve an accolade, the internal structure of the JSC still leaves a lot to be desired.
As it stands, Justice Makarau is the Acting Secretary, her deputy Walter Chikwana is also doing so in an acting capacity. A number of the senior posts are in an acting capacity.
This has been the position since 2010 when the Act was brought in to operation. For six years, people have been promoted and moved in acting capacities.
Such an approach leaves room for suspicion of nepotism. To maintain its moral authority, the JSC must be transparent and ethical in its internal recruitment.
This, however, has to start from the head. Currently Justice Makarau is substantive chairperson of the Zimbabwe Electoral Commission.
The outcome of elections is a hotly contested terrain. After elections Justice Makarau will often have to defend the conduct of ZEC in the courts.
To be administering judges and at the same time to be then defending yourself before those same judges is not ideal.
ZEC and JSC are both independent commissions in terms of the Constitution. Independence does not only mean independence from the executive, it also means independence from other State organs and other independent commissions.
The double appointments held by Justice Makarau offend this principle of independence.
She has indeed set the groundwork for the unitary judiciary and the new JSC, but the time has come for her to choose which hat she wants to wear. She certainly should not be wearing both hats.
Should a substantive secretary be appointed, the JSC must make way for all its posts to be substantive.
This should not be a musical chairs game whereby people sit where they are when the music stops. The process should be transparent and allow for the best candidates to assume the posts.
Internally, the JSC has a number of people that have been educating themselves over the years. These people should be allowed to compete for the posts fairly.
Equally so, externally, there are a number of Zimbabweans that remain competent to be officers in the JSC. They too must be allowed to compete for the posts. The practice of creating posts and placing someone to act in that post should not continue.
The perception of corruption within the internal recruitment process spurs corruption within the judiciary itself.
This cancer of corruption is one of the vices the JSC has been very outspoken about. Yet one must not only talk the talk, they must walk the walk.
While no scientific studies have been done on judicial corruption in Zimbabwe, my experience is that internal corruption with the judicial system itself makes corruption with non-State actors seem permissible.
Even though the Constitution does not require public interviews for magistrates and other senior staff as it does for judges; it makes little sense to be transparent when promoting and appointing judges and then cast a blanket for magistrates and senior staff.
The Constitution is a codification of principles. The lack of such codification does not mean the discarding of the principle.
Recently, Commissioner-General of Police Augustine Chihuri was reported admitting that “the system” allows certain people to be untouchable. While his admission of a so-called system was not expounded on, it is interesting that he admitted to the existence of such a system.
It is this same system that gives orders to magistrates as to how they should deal with a particular case.
More often than not, magistrates are instructed not to give a particular accused person bail or to convict (or acquit) a particular accused person.
Should a magistrate not adhere to these instructions, one sees themselves transferred to a faraway place or placed in a court that deals with menial matters or matters that should be dealt with by junior magistrates.
Magistrates who do not toe the line can also find themselves overlooked for promotion to posts they rightly qualify for.
This is why the issue of internal recruitment and promotion is a key factor in the fight against corruption. Some magistrates who have insisted on their independence have been frustrated into resigning.
Meritocracy should be the order of the day.
If not already there, the JSC needs to make a rule that makes it an offence for any judicial officer to instruct another judicial officer how his/her discretion should be exercised pertaining to a matter that is before or will be before such judicial officer.
This should also be made very clear to any member of the Police, the National Prosecuting Authority and any State organ that there is zero tolerance for giving judicial officers instructions and anyone reported for doing so will receive the full wrath of the law.
Once the JSC puts its foot down on internal state corruption, it will easily deal with corruption from outsiders.
It is encouraging that the JSC has appointed an Acting Deputy Secretary to deal with corruption but the manner in which this was done goes against the transparency principle advocated for herein.
The JSC must refuse to operate as a military organisation whereby superior orders are the order of the day.
Stage managed court proceedings should vanish. We call them delayed matches. Everyone knows the outcome, but we want to watch either way and at times we even hope for a different result.
Lately, the JSC has been under the spotlight over its decision to initiate disciplinary processes against Prosecutor-General Johannes Tomana.
While the propriety of this decision is still to be judged in the courts, one thing for sure is that the JSC needs to avoid being a litigant.
It is already perceived as being the mother of judges. People do not believe they are on equal footing when they appear in court with it. JSC decisions, thus, need to be carefully thought out.
When judges sit in the JSC, they to a certain extent become political actors too. Their judicial wisdom should breathe life into their political decisions.
As judges, they should never be trigger happy. When the JSC which is headed by both the Chief Justice and Deputy Chief Justice has to defend itself in a court of law, it confuses the constitutional set up and prospects the possibility of a constitutional crisis. Let politicians or the army cause a constitutional crisis, not judges!
In light of the performance of other institutions a level headed, ethical and dynamic JSC is called for. The Anti-Corruption Commission has been a huge disappointment.
Not only does it suffer from a dearth of no major convictions, its own chairperson was convicted of corruption in 2015 and sentenced to 10 years having bought a house worth over US$400 000 using commission funds.
The Zimbabwe Human Rights Commission is suffering from stunted growth. ZEC itself is constantly mired in controversy and other independent constitutional commissions are still to be born.
Another thesis is needed for a comparison with insolvent, corrupt and mismanaged State-linked firms.
Much still needs to be done by the JSC. The rules of the court are extremely ancient. Access to justice by a majority of Zimbabweans remains an elusive dream.
There is need for more courts. Existing courts need upgrades. Judicial officers are spending more than they earn yet they are not earning much.
This paradox must be fixed. These issues are known as they appear in the strategic plan. Resources are a limiting factor and the justice cluster is too sensitive to be dependent on donor funding.
The need for a well resourced judiciary which at the same time is inexpensive and accessible to the majority of poor citizens is an unenviable funambulist act that should be mastered by the JSC.
The performance of the JSC thus offers a beacon of hope that, maybe, our institutions can actually work in a manner that is not consistent with foreseeable but unwanted failure.
The JSC must be like the proverbial Caesar’s wife – above suspicion. It should not be a smaller public service commission for magistrates and judges.
Like other government departments, it must not be good on paper with excellent strategies on nice glossy sheets but on the ground it has nothing to show.
Most importantly, the JSC must be the colossal commission and torch bearer, leading the way in terms of good governance. After all, lawyers make great leaders!
Tazorora TG Musarurwa is a lawyer in private practise and writes in his personal capacity. Feedback: [email protected]
