Lets get the judiciary to account: Part 3

By William Eckem Sithole 31 January 2014

“Who shall guard the guards?” A riddle that speaks to an untenable situation a society can find itself in when those entrusted with the well being of the society are of low moral value and abuse the trust and faith society has given them. This is asked of tyrannical dictatorships, corrupt police forces and compromised judiciary.

Modern consensus posits that it is the duty of society (as owners) to watch over its watchmen. This, (in theory) society does through the holding of regular elections, installing and maintaining checks and balances in the Constitution and by active participation in the programs and actions of governance.

The fourth estate, the media, is tasked with exposing deviations from the accepted norms before things get out of hand. That is why tyrannical governments maintain a tight grip on the flow of information in the society, but this grip is no longer tenable, thanks to advances in communications technologies.

Zimbabwe, like many progressive nations is a Constitutional democracy adhering (in theory) to the doctrination of the separation of powers. We conduct regular elections and can boot the government out and replaces it with the opposition if we are not happy with it.

The judiciary exists as a guard, resolving disputes between private citizens, the citizen and the state, punishing offenders and ensuring that the laws made by the lawmaker are in conformity with the Constitution and the mores of society.

It is another target of many tyrannical regimes, for, if such regime can have the judiciary in its pocket, it can afford to make progressive laws, knowing fully well that the laws will never hinder the regime, for the judiciary will play its part by interpreting the laws in favour of the regime or blocking those cases that could embarrass the regime.

Our lawyers seem to skirt around some very sensitive issues, I presume, for safety reasons and financial survival. I want to believe some lawyers are accomplices after the fact. There is no way that an ordinary citizen can offer the jugde a bribe. But lawyers, as colleagues and friends to judges, can facilitate the process.

Those lawyers who see it and are not part of it choose not report it for, they can easily be destroyed. If the judiciary constantly rules against a lawyer’s clients, his reputation taking a great knock. Word quickly spreads and he stops getting clients. The fear of loss of clients will force lawyers to be circumspect and avoid bringing up matters like judicial corruption, even if it happens before their eyes.

Of course, everybody denies this, but my question to those in denial is:- Why, despite admissions from the Chief Justice, that corruption exists in the judiciary, are we not seeing at least one case reported to the authorities, for, some of you, if not all of you are privy to the details of the corruption?

Society seems to know but also chooses silence. The few comments I have received as feedback indicate a society afraid of bogeymen prepared to kill, to preserve the status quo. This, if true, may explain the legal profession’s silence, but does not excuse it.

In the process of writing these articles,I had to talk about points of law, some of which have been tested in our Courts. I would have expected that at least, if wrong legal conclusions have been made, those in the know would be kind enough to correct such, either in public or by private correspondence. In fact, these discussions should have been lead by the lawyers, but they are otherwise engaged elsewhere, leaving the victims to initiate and sustain the dialogue.

Make no mistake. This is a job that must be done. After appointing its guards, society must ensure that its guards have not been compromised by those seeking to be unjustly enriched, at society’s expense.

To avoid such, society must ‘pressure test’ the judiciary to ensure that as a system it is still safe to use. At an individual level, I detected massive systems failure, leading me to want to engage society in a bid to answer the question; where these failures isolated incidents or an indicator of failure across the board.

How do I propose we do the test. Since the outcome of court proceedings are judgements, test that the judgements do conform with the Constitutional requirement for lack of favour, influence or bias. The Chief Justice admitted that corruption exists in the Judiciary when he addressed the profession at the opening the legal year 2013.

Our test parameter must be:- Will the judiciary co-operate and willingly assist in investigating possible cases of breach of oath of judicial office? If it co-operates, then any corrupt members within its ranks will be flushed out. However, if it refuses, society must build a case against the judiciary, so that the Lawmaker can institute judicial reforms.

I am confident that in the event of non co-operation, the Lawmaker, as the People’s representative, will side with the people, for if with misguided wisdom, the Lawmaker does not, I can hear society singing “Tonosangana kuma vhoti”, “We will meet come the General Elections”.

This explains my call to society. Those of you are convinced that you can make out a case for bias or favouritism or influence, in your judgement, then let us use it to test and correct the system.

While it is impossible to lay down with precision what conduct by a judge may constitute evidence of breach of oath of office, the following do provide guidelines as to where to start searching;

When the judge ignores evidence submitted before him,

When he twists your case from what it is to what he wants it to be (i.e an application for review suddenly mutating and becoming an appeal),

When he deliberately creates an incomplete record, manufactures facts or points of law to support your adversary or ignoring those facts or points of law advancing your cause, When he allows infirm claims (i.e wrongly decides that your matter is res judicata) or dismissing your valid ones (i.e that even though the parties are the same, the causes of action are different), denying the admission of evidence prejudicial to the favoured party or supporting your cause, all the above executed for the sole purpose of obstructing/ denying a party justice.

The Constitution of Zimbabwe is not clear on how a person must file a complaint that will lead to the beginning of impeachment proceedings against a judge. I am not aware of the existence of any Act of Parliament or a statutory instrument detailing the procedure to be followed in initiating the impeachment proceedings.

What it simply says is “If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, …” without specifying how and why the JSC will see it fit to so advise the President it when no complaint has been laid against a judge and some formal enquiry done to show that a prima facie case can be made against the judge.

Whether this was an oversight on the part of the Lawmaker or a deliberate ploy to discourage aggrieved people from initiating proceedings leading to the impeachment of the judge is anyone’s guess, but Parliament must make such regulations and make them known. We have an ideal window of opportunity, since our laws and statutory instruments must be aligned to the new Constitution.

If any member of the public is aware of the procedure, society will be indebted to you if you can share the details of the procedure with us, either by e-mailing them to me at my e-mail address below (if you wish to remain anonymous) or publishing them as an article for public consumption under your own name.

Faced with such a predicament myself, I chose to be guided by two objectives, namely, that I needed to undo the negative consequences of what I considered to be an illegal and illegitimate judgement while at the same time filing a complaint against the judge who granted the judgement.

Using the Bill of Rights, I filed a Constitutional Application praying that the Court declares that my right to a fair hearing before an impartial and independent authority had been violated by the actions of Judge X.

Because once the Constitutional Court is satisfied that, yes indeed, there has been a breach, it can exercise its wide powers to remedy the breach. Again, since the Constitutional Court was made aware of the judge responsible for the breach, it can bring it to the attention of whosoever is mandated by the Constitution to initiate impeachment proceedings, to consider the question of initiating the proceedings.

Obviously, the Constitutional Court would not make such a recommendation lightly and the person to whom the recommendation is made would not dismiss it lightly, lest he brings public scrutiny on himself.  Granted, the process is long, cumbersome and not efficient, but in the absence of the right legal procedures to initiate impeachment proceedings, it is effective.

To begin with, if the pleadings, the heads of argument and the judgement are taken together with the record of the proceedings, the matter can be decided on the papers, without need for trial and calling of witnesses.

Second, any body that seeks to interfere and is not the Constitutional Court will have to explain the source of power entitling it to so interfere. If the interfering body does not have legitimate grounds for interference, then, he (the interfering busybody) breaks his own oath of office, for he is attempting to defeat the ends of justice.

There may be instances where the interference is legal, under the existing laws and provided for in subsidiary legislation. Here, society can ask the legitimate questions:-

v  Should some covert power, granted under subsidiary legislation be allowed to defeat a genuine case of seeking redress for infringement of one’s rights under the Constitution?

v  If such covert power is necessary for the efficient administration of justice, what checks and balances exist to prevent abuse of such necessary power to defeat the ends of justice?

v  Does a just and democratic need people with the ability to veto the pursuit of redress for breaches of Constitutional rights.

All the above hurdles cleared and having made out a strong case for the Constitutional Court to exercise its collective mind on, the true state of the Judiciary will soon reveal itself. If it is seriously executing its mandate, those judges guilty of breaking their oaths of office will soon find themselves under impeachment proceedings.

However, if the Constitutional Court ducks, dives or in any manner seeks to avoid its responsibilities, it will soil its good name. This will not happen as a result of one case, but many. How many are needed. I do not know, but, if you feel you were denied justice, this could be your chance to join others who feel the same.

Genuine freedom is fought for. It is never given. The battleground for this fight is the Courtroom. It is in parliament. It is for your mind and thereafter, your vote. Where do you stand? 

William Eckem Sithole is a victim of justice gone to the dogs. He is currently based in South Africa. He can be contacted on e-mail at eckysithole@gmail.com