There has been much talk recently about the need to strengthen the rule of law which has prompted Veritas to summarise the Chief Justice’s speech at the opening of the 2019 legal year – “Consolidation of the Rule of Law”. [The full text is available on the Veritas website [link]].
The Chief Justice’s starting-point was that:
“The rule of law is the foundation of any democratic society and is essential to the cohesion of a community. … In itselementary sense, the rule of law simply implies that no-one is above the law and that all existing laws must berespected by everyone. Individuals, corporate entities, the State and all its organs are subject to the law and are allequal before the law. The concept provides a framework for the orderly and objective relationship between citizens andthe State and among the citizens themselves”.
Respect for Court Decisions Essential to the Rule of Law
While acknowledging the existence of other role players in upholding the rule of law, the Chief Justice identified the courts as:
“ … the last line of defence to the concept of the rule of law. They are the final arbiters and the vanguard that holds together the system of justice. The courts musttherefore always take the lead in upholding the rule of law. Put simply, the Judiciary is the sine qua non of the concept of the rule of law.”
The courts are obliged to ensure both procedural and substantive fairness to both sides in cases before them, to make a finding as to the facts and to apply the law to those facts in reasoned judgments. In the circumstances, the Chief Justice said:
“The rule of law demands in the circumstances that the decision of the court be respected. A party does not have to agree with the decision. He or she or it does not have to denigrate the person of the judicial officer.”
Instead of resorting to insulting and denigration of judicial officers, unsuccessful litigants should, he said, make use of the rule of law’s “inbuilt self-correcting mechanisms”, which allow anyone who is aggrieved with the decision of a court to take it on appeal or review:
“Court decisions may only be challenged by following proper legal processes such as appeal or review. This is the bedrock of the concept of the rule of law. … Courtdecisions may only be challenged by following proper legal processes such as appeal or review. This is the bedrock of the concept of the rule of law.”
But judges not immune from criticism Respect for judges’ decisions, the Chief Justice continued, did not mean that their decisions are immune from criticism. The rule of law concept encourages scrutiny, comment and even criticism – as long it remains “professional, impersonal and constructive” and is made without being “scurrilous” about the judicial officer: “Comments which degenerate into confrontational or personal insults on judicial officers have no place in this jurisdiction.”
Starting with the proposition that “corruption is the antithesis of the rule of law”, the Chief Justice said the Judicial Service Commission and the judiciary were playing their part in the fight against corruption.
Specialised anti-corruption courts During 2018 specialised anti-corruption courts, staffed by a specially trained group of magistrates, had been opened in Harare and Bulawayo as pilot projects. The aim was to ensure the opening of further such courts in Masvingo, Mutare and Gweru during 2019.
Streamlining corruption-related offences from the normal run of cases had been considered necessary because they are usually complicated crimes, perpetrated by sophisticated and well-resourced individuals. But, said the Chief Justice, this did not imply “trampling upon the rights of those accused of corruption” to fair hearings.
“It simply requires lawyers, judges and magistrates to take cognisance of the harmful effects of the scourge of corruption on the livelihoods of all Zimbabweans. If we do not coalesce around this scourge, we all stand to be doomed as a nation.”
New Rules of Court
Decades-old and sometimes obsolete rules of court had been reviewed and replaced under the stewardship of the Judicial Service Commission – for example, the new Labour Court Rules and Supreme Court Rules had been gazetted.
New Magistrates Court Rules would be gazetted in time to come into force on 1st February 2019.
Note: the Magistrates Court Rules were gazetted on 25th January in Statutory Instrument 11/2019 and are available on the Veritas website [link].
Replacement of the High Court Rules of 1971 had already been extensively debated by stakeholders. During the first half of 2019 the new rules would go to the Attorney-General’s Office to be finalised.
Access to Justice: New Courts, Court Rooms, More Magistrates
High Court The new Mutare High Court had been opened in May 2018 and would operate with two resident judges from January 2019. Three new courtrooms had been commissioned at the Bulawayo High Court, which would improve the turnaround of cases and enable increasing the number of judges in Bulawayo in due course.
Magistrates Courts New magistrates courthouses were scheduled for completion in Mount Darwin and Lupane by June 2019.
New magistrates and supporting staff Following a reversal of the freeze on recruitment, 233 new officers had been recruited from July to November of 2018. 60 of them were magistrates, 57 of whom had already been deployed to various stations across the country, where they had alleviated shortages.
Regional courtsThe number of regional magistrates had been increased and Chipinge, Plumtree, Karoi, Beitbridge and Guruve had been raised to regional status.
Resident magistrates The courts at Mutasa and Concession had been upgraded to resident magistrates courts.
The Chief Justice confirmed that:
a “huge portion” of the recently recruited officers had been female;
the ratio of females to males in the JSC now stood at 53.6% to 46.4%;
of the 64 judges in the country, 30 are women: 46.9%.
women account for 128 of the 249 magistrates: 51.4%.
Note: The 64 judges referred are the judges of the Constitutional and Supreme Courts, the High Court, the Labour Court and the Administrative Court.
Performance of the courts
All judicial officers, the Chief Justice said, had performed “pleasingly” in 2018. There had been good performance in all courts and an overall reduction in backlogs of cases.
Constitutional Court The number of cases filed had dropped from 70 in 2017 to 59 in 2018. The Chief Justice commented that “the number of cases received are still far higher than expected in an apex court”. The backlog of cases had been reduced from 68 in 2017 to 42 by the end of 2018.
Note: the Chief Justice did not give figures of the number of outstanding judgments yet to be delivered and the average delay in delivering them.
Professional Development of Judicial Officers
Calling on all judicial officers to ensure that “quality justice” prevails in the courts, Chief Justice Malaba reminded judges of all superior courts of their constitutional “responsibility to model the country’s jurisprudence by developing the common law for the sustenance of the rule of law”. During the year 2019, all judicial officers would be exposed to various forms of training within and outside Zimbabwe. Some Zimbabwean judges would join other judges from SADC countries for a training session in Victoria Falls in the first week of February.
Other Plans for the Future
Labour Court The court would move into a new more spacious building once it had been renovated and customised to the court’s needs.
Commercial Division of the High Court The establishment of the court would be a priority for 2019. It would operate from the former premises of the Labour Court once the building had been customised into its special needs. The aim was to have a paperless state-of-the-art court with an Integrated Electronic Cases Management System. The court would be capable of dealing with commercial disputes expeditiously as part of Zimbabwe’s efforts to open the country for business by re-opening factories and inviting foreign direct investment.
Separation of Constitutional Court and Supreme Court Plans had already been laid for the separation of the Constitutional Court and the Supreme Court. This will occur, in terms of the Constitution, on 22nd May 2020. The old Supreme Court building would house the separate Supreme Court. Some Supreme Court judges were already using the old building. More Supreme Court judges would be needed and the JSC would shortly start the process for recruiting them.
Other Documents Available on Veritas Website
Constitution of Zimbabwe as amended by Act 1/2017 [link]