ZLHR alarmed by directive issued by Chief Justice Malaba 

That undermines the independence of the judiciary

Source: ZLHR alarmed by directive issued by Chief Justice Malaba – The Zimbabwean

Luke Malaba

On 16 July 2020, the Chief Justice of Zimbabwe issued a Directive to
the High Court and Labour Court to address concerns raised on the
handing down of judgements. The Directive required all ‘Orders or Judgements’ of the High Courts
and Labour Court to be seen and approved by the Head of Court or
Division, before such Judgements or Orders are issued or handed down.
This Directive was subsequently modified on 17 July 2020, requiring
all the judgements to be seen by the Head of Court or Division before
being issued or handed down. The modification makes no difference to
the provision in the Directive, which remains a concern.This provision of the Directive is an unacceptable assault on the
principle of independence of the judiciary. This comes at a time when
constitutional amendments have been introduced which if enacted will
erode provisions on the independence of the judiciary.

The principle of judicial independence is two-pronged and encapsulates
both institutional and individual independence. Institutional
independence relates to the ability of judges to work in an
environment free of any external influence; it reinforces the concept
of separation of powers between the executive, the legislature and the
judiciary. In this case, the individual independence of judges is
under threat. Individual independence is protected in terms of the
following instruments or laws.
•    The Constitution of Zimbabwe;
•    Judicial Service Code of Ethics;
•    The African Charter on Human and Peoples’ Rights;
•    The International Covenant on Civil and Political Rights;
•    The United Nations Basic Principles on the Independence of the Judiciary;
•    The African Commission on Human and Peoples’ Rights Principles and
Guidelines on the Right to a Fair Trial in Africa (African Commission
Guidelines).

Individual independence relates to independence of the judges and
their ability to hear and decide cases that come before them
impartially without influence from internal or external sources and
without any fear or favour. Individual independence of judges means
that they have a duty and are enabled to decide cases before them
according to the law, free from fear or personal criticism or
reprisals of any kind, even in difficult or sensitive cases.

The administration of justice by transparent, accountable, competent
and independent judicial officers is something ZLHR and Zimbabweans at
large value immensely. It is the hallmark of a constitutional
democracy.

During the review of the human rights record of Zimbabwe by the United
Nations, Human Rights Council-led Universal Periodic Review Mechanism
in 2011 and 2016, the government of Zimbabwe voluntarily committed to
guaranteeing independence of the judiciary.

ZLHR regards this matter as a grave concern and believes that the
Chief Justice must completely withdraw the offending provision in the
Directive.

To safeguard independence of the judiciary, ZLHR makes the following
recommendations:

•    All judges continue to be appointed on merit only, in a transparent process;

•    Government provides adequate resources to judges that include
library resources and necessary equipment;

•    The Judicial Service Commission identifies any gaps in knowledge and
address these through training programmes and other capacity-building
measures for the judiciary.;

•    The Judicial Service Commission implements administrative reforms
such as recruitment of research clerks that assist judges with
relevant support;

•    The Judicial Service Commission develops and administers a
performance appraisal system for judges;

•    The Government reaffirms and honours its commitment to treaty
obligations under the United Nations and African Union human rights
instruments guaranteeing independence of judges;

•    The Chief Justice completely withdraws the provision in the Directive.

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