COURT WATCH 3/2014
[17th February 2014]
Judicial Service Commission and Improved Court Performance
New Members of the Judicial Service Commission
Under the new Constitution the Judicial Service Commission has been expanded to twelve members, double its former maximum of six. Its responsibilities have been increased, and it “must conduct its business in a just, fair and transparent manner” [Constitution, sections 189-191]. New members of the Commission were sworn in by the Chief Justice at a ceremony at the Constitutional Court on 3rd February. The Commission’s membership is now as follows:
Ex officio members
Chief Justice Godfrey Chidyausiku
Deputy Chief Justice Luke Malaba
Judge-President George Chiweshe
Attorney-General [vacant, awaiting appointment of Attorney-General]
Chief Magistrate Mishrod Guvamombe
Chairperson of the Civil Service Commission Dr Mariyawanda Nzuwah
One judge nominated by judges
Justice Happias Zhou
Three legal practitioners designated by Law Society of Zimbabwe
Mr Lloyd Mhishi
Mrs Priscilla Madzonga
Mr Josphat Tshuma
Law professor/senior lecturer designated by university law teachers
Accountant designated by Public Accountants and Auditors Board
Mrs Priscilla Mutembwa.
Judicial Service Commission as Administrator of the Judicial Service
The Judicial Service Commission was originally an advisory and consultative body only. But this changed dramatically with the coming into force of the Judicial Service Act in June 2010. The Act severed the magistracy from the Public Service and resulted in the Commission assuming responsibility for the administration and supervision of the Judicial Service as a whole [including control of the funds appropriated by Parliament for the Judicial Service, court property and donated funds]; this had previously been the responsibility of the Ministry of Justice. Similarly, the Commission took over from the Public Service Commission the responsibility of fixing the conditions of service of the magistracy and the support staff of the Judicial Service. These were major steps towards the achievement of a judiciary independent at all its levels. .
The new Judicial Service set-up has resulted in improved infrastructure and working conditions, higher morale amongst judicial officers and their support staff and increasing efficiency in the court system. The donor community and other benefactors have shown greater readiness to assist a self-administered judicial service. Gradual progress has been reflected in addresses given by the Chief Justice at the annual January ceremonies to open the legal year in 2011, 2012 and 2013. In January this year, too, the Chief Justice was able to report continuing progress, as follows.
Chief Justice’s Address at the Opening of the 2014 Legal Year
On 13th January, in Harare, Chief Justice Chidyausiku presided over the High Court ceremony to mark the opening of the legal year. He described the ceremony as:
“an acknowledgement by the judiciary that judicial authority derives from the people of Zimbabwe and that the judiciary is in consequence thereof accountable to the people in its performance of the judicial function.”
The primary obligation of the courts, he said, is to give effective service to all litigants that seek justice from them.
Theme The Chief Justice therefore made Effective Service Delivery the theme of his address.
Performance of the Courts in 2013
Elaborating on this theme, the Chief Justice dealt with the performance of the courts during 2013, starting with the highest court in the land, the Constitutional Court, and descending through the court hierarchy.
This new court, created by the new Constitution, came into being on 22nd May, with both appellate and original jurisdiction in constitutional matters. It will eventually be an entirely separate court with its own nine judges, but until 22nd May 2020 judges of the Supreme Court must double as judges of the Constitutional Court [Constitution, Sixth Schedule, paragraph 18].
The court inherited responsibility for finalising the Supreme Court’s 30 uncompleted constitutional cases and by the end of 2014 had received 81 new cases, of which 50 were lodged between June and September – an influx, the Chief Justice said, which was clearly occasioned by the July harmonised elections. 24 out of these 111 cases were disposed of, leaving the court to start 2014 with a backlog of 87 cases.
Remedying the backlog: The Chief Justice said that non-prosecution of constitutional cases had been a major contributing factor to the backlog [this included land cases brought under the old Constitution in which there had been little movement]; he was referring to cases lodged for “ulterior motives, with no intention whatsoever of pursuing the matter to finality”. [Such cases tend to leave proceedings in lower courts indefinitely suspended, or lower court decisions unimplemented, to the benefit of appellant but the prejudice of the other party and the court system.]. Accordingly, he said, the court’s Registrar was working on reforms intended to:
· achieve “swift and smooth movement” of constitutional cases, and
· ensure that ”all approaches to the Constitutional Court are genuine requests to have a constitutional injustice redressed and the Constitution respected”.
The Law Society of Zimbabwe and the offices of the Attorney-General and Prosecutor-General would be consulted before the reforms were implemented.
CJ’s Assessment of this performance: “too early to judge the performance of the Constitutional Court, as 2013 was a unique year for that court”.
Comment on failures to give court’s written reasons for decisions reached: The Chief Justice did not mention the fact that the court has delivered its written reasons for judgment in only four of the 24 cases disposed of [the Mawarire case, Judgment CCZ 1/2013, and three others, including Chimakure & Kahiya, and Brian James]. Nor did he say when, or if, reasoned judgements will be provided in the other 20. This means that interested persons – the parties, other courts handling similar cases, other arms of government, the legal profession and members of the public – must do without the benefit of the court’s reasons for deciding these 20 cases the way it did. These cases include: the four applications, consolidated into one for the purposes of argument, that gave rise to the court’s crucial upholding of the harmonised election proclamation, the election date and the use of the Presidential Powers (Temporary Measures) Act to allow the election to go ahead; the Mawere case [significance of the right to dual citizenship in the new Constitution]; and the Bukaibenyu case [ZEC’s denial of effective voting rights to Zimbabweans in the Diaspora]. [See Court Watch 12/2013 of 3rd September 2013 on the vital importance of reasoned judgments, particularly from appellate courts and courts of last resort.]
With the number of judges increased to nine by new appointments and the return to duty of Justice Gwaunza from international duties in the Hague, a clearance rate of 78% for the year was achieved. At this rate, the court would be dealing with current appeals by mid-2014.
CJ’s Assessment of this performance: “remarkable”, “pleasing”.
Six new judges had been appointed, but all divisions of the court remained dogged by backlogs.
CJ’s assessment of this performance: The “substantial imbalance” between case inflow and outflow is a “cause for concern”, and he and the Judge-President are considering strategies to ease the workload.
Four additional judges had been appointed, but more cases were being filed with the court than the number of judgments and orders coming out of it. The Chief Justice pinpointed the causes of the backlog as being:
· the uneven flow of work caused by the structure of the Labour Court, and
· the number of bad decisions by arbitrators appointed by the Minister of Public Service, Labour and Social Welfare. These sometimes outrageous and illogical arbitral awards were the cause of most of the appeals in both the Labour Court and the Supreme Court. While the arbitrators might be experienced in labour matters, they appeared to need extensive professional development in computing compensation for breach of contract.
CJ’s assessment of this performance: as in the case of the High Court, a “cause for concern”. Also, “the institution of arbitration that is built into the procedure of the Labour Court may need revisiting at policy level”.
The court’s work had tailed off since the 2005 constitutional amendment restricting the court’s jurisdiction over land acquisition cases. It now had only one judge. Its case clearance rate for 2013 stood at 43%.
CJ’s assessment of this performance: “can be improved upon”.
By the end of the year the backlog had been completely eradicated. This had been achieved despite unimproved conditions of service and the fact that there were nearly fifty vacant posts in the approved magisterial establishment of 250.
CJ’s assessment of this performance: “commendable … The performance of the magistrates’ courts continued throughout 2013 to exceed my expectations”. The Chief Justice also congratulated the staff of the National Prosecuting Authority and the Prisons and Correctional Service on the part they had played in achieving the turnaround in the magistrates courts.
Performance of the justice sector as a whole The Chief Justice summed up as follows: “Despite limited resources, as a sector, the justice delivery sector performed beyond my expectations andi am happy to report as such to the nation.” He made available printouts of detailed statistics of performance of all the courts discussed in his address.
Generosity of Donors
The Chief Justice made a special point of acknowledging with gratitude assistance received from the Royal Danish Embassy Office in Zimbabwe and from Plan International. With their assistance,construction of four pre-fabricated courthouses at Guruve, Murehwa, Mutoko and Tsholotsho had been completed, two others at at Norton and Esigodini were almost complete, and plans were well under way to construct a further 30 within the next two years.
Documents Available from Veritas in Soft Copy
[see addresses at end of bulletin]
Constitution of Zimbabwe
Chief Justice’s speech on 13th January [including schedule of statistics]
2014 Court Calendar for Supreme Court and High Court [GN 609/2013]
2014 Court Calendar for Labour Court [GN 608/2013]
Constitutional Court judgment in Mawarire case [judgment CCZ 1/2013 – the election date decision, given on 31st May 2013]
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