via Lets get the judiciary to account JANUARY 4, 2014 By William Eckem Sithole NehandaRadio
Our major problem as a nation is that we are too educated and selfish for our own good. We identify problems, create action plans to solve them and suddenly stop there. We are not prepared to implement the plan, unless we are to be paid.
Funds, work and sacrifice for a common good are required and we are not prepared to work unless there is some immediate benefit. If funds are involved, we go dizzy, trying to scam the system and line our pockets.
Look at the behaviour of MDC politicians, once they we let near the feeding trough. Some are now career Members of Parliament. The Government of National Unity exposed the majority of them as chartallans, ready to consort with the devil, damn the consequence. But, I digress.
ZANU PF’s continued hold on power, in my opinion, has always been the use of the iron fist, hidden behind the velvet glove. This is the security-legal complex, the security cluster being the iron hand and the legal complex being the velvet glove.
I am not worried about the security cluster, because, in the long term, violence is not sustainable. I verily believe that as a society, our attention should be focused on making our judiciary accountable.
If the judiciary sticks to its constitutional mandate of applying the law without fear or favour, then we will have a flourishing democracy, for justice will prevail and the guilty will pay for their sins and victims compensated for their injuries. However, if justice is prostituted, bad things happen man, very bad things.
Our Courts can sanitise electoral theft and help to subvert the will of the people. They can delay the dispensation of justice (effectively denying victims justice). They can abuse their offices and sell justice for personal gain (turning national institutions into Kangaroo Courts, with judges hopping from one dirty file to another, seeking private gain).
They can only do that with the active acquiescence of society. So far, the default position is that the losing party quietly tucks his tail between his legs and hides his head in the sand, hurt by the injustice perpetrated on him, totally lost as to the existence of remedial action.
Once in a while, we hear populist rhetoric that judge so and so is corrupt or makes politically influenced decisions, in the mainstream newspapers and online forums, but besides that, no further action is taken. Such posturing is usually dismissed as a sour losers’ blowing his top.
But the possibility exists that such a loser was made to lose a case that he should have won, were the judge not partial. It is such people who can be effective in bringing about a peaceful revolution. How?
When the guns fell silent after the General Ceasefire on 29 December 1979, the war front moved from destructive physical war to an intellectual war in the Court room, with the judge given the mandate to unearth the truth, and dispense justice.
When he assumes office, all judicial officers take an oath or affirmation, binding their conscience to applying the laws of the land without fear, favour or influence from any party. By and large, the laws of Zimbabwe, are progressive and if implemented, can create a just and free society.
Thus, when a judge makes a retrogressive judgement, (s)he is;
1. Failing/ refusing to apply the laws of the land. For those in the know, they will tell you that if such can be proven, this is dismissible conduct on the offending party, judges included, after following due process.
2. Automatically be in breach of oath of judicial office. The consequence is that without more ado, the judge guilty of such breach destroys, nullifies and extinguishes his office the moment he hands down such a judgement. What would be left only will be to follow the legal procedure for confirming his removal from office.
In the majority of the cases, a judge would normally unilaterally introduce evidence to justify his erroneous judgement or suppress evidence proving the guilt of the guilty party. The rules of Court have provisions for correcting such, for they call them patent errors.
So the party injured by the patent error in a judgement is given the opportunity of requesting the judge responsible to correct his patent error. If after being so asked, a judge refuses to correct the patent error and dismisses the application to correct, this will constitute the necessary and sufficient proof that, yes, a judge is in breach of his oath of judicial office and must answer as provided for in the Constitution.
Again, if a judge makes a judgement so grossly unreasonable that no other adjudicating authority possessed of reasonable skill and diligently applying his mind, could have reached, given the same facts, this would be necessary and sufficient proof that the judge is grossly incompetent and should be released from his duties. This may be shown when, on appeal, the judgement of the lower court is overturned.
So, this is a call to arms, Zimbabwe. Study your judgement. Does it pass constitutional muster? Did the judge clearly explain why you lost your case? Did he consider your submissions and show why they did not advance your cause?
Did he explain why the protection that you thought you enjoyed from the statutes, does not apply in your case. Are you satisfied that you lost your case because you failed to adequately prosecute it? If you think that you unfairly lost your case, ask yourself why you are convinced that your case was wrongly decided. Then, kindly contact me at the e-mail address given below.
I am one of the affected and would like to seek redress, not only for myself, but for others who find themselves unfairly losing their cases. I have seen short comings in the existing institutions, as there is none pursuing cases beyond prosecution and appeal.
It is my hope that should there be other victims of judicial indiscretions, such victims constitute themselves into a body that can facilitate their seeking redress. It must be understood from the onset that this may be a long and bitter fight.
If we can call those judicial officers abusing their oath of judicial office the enemy, it will be acknowledged that the enemy has superior fire power. For one, he takes you down one by one, as each case is dealt with individually, so you are divided and you never communicate.
Second, he has de facto authority to render judgements. Even when he has lost the moral right to make judgement, the de jure authority still resides in him until he is divested of such, hence he may be both a player and referee at the same time. Third, society sees you as a loser and not a victim.
They are programmed to believe in the infallible judge, an ideal that has been corrupted. Just like society says the rape victim asked for it, society says you never had a case to begin with, you were taking a chance. Nigger, you are on your own, in the deep blue sea and the sharks are circling.
But, it does not need to be this way. As much as the enemy has superior fire power, we can overwhelm him with our superior numbers.
Let us use the Constitution to hold our judges to account. Even if they were put on the bench for partisan purposes, the bench is a straight jacket. Those who do not conform to the dictates of the job, let us facilitate their impeachment and removal.
If it is only done by me, the request for impeachment can simply be ignored, for it is but one drop of water. But if the drops come together, they do form a raging torrent, capable of sweeping anything standing in the way. So, let us join together and reclaim our birthright.
Society at large can help by mobilising resources. This typically is a war of attrition and the enemy can prolong the fight, knowing that sooner or later you will run out of money to continue the fight or that you will fall on a technicality and based on that technicality, they will dismiss your case, effectively shutting you out.
If society were to let such victims fight on their own, society does itself a disservice. Divided we fall, but united we stand. By helping such victims, binding precedents are created, controlling the judges and safe guarding the same society.
Funds, Rules of Court, Law Reports and statutes must be sourced to assist in the fight. Progressive and fearless lawyers must be commissioned to assist in preparing and arguing cases before a hostile bench.
My pet gripe against members of the legal profession being why they seek to profit from helping fight national causes. But if they must be paid, then, I hope society can see it fit to contribute.
Those members of the judiciary whose consience is still bound by their oath/ affirmation of office, Zimbabwe thanks you. But those who have prostituted justice, take heed, the day of reckoning is coming. What are you going to do when we come for you.
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 firstname.lastname@example.org