By Jacob Nkiwane
The credibility of any judiciary is measured by its level of impartiality, independence and fairness.
Independence and impartiality are the cornerstones of a fair and just judiciary. Any judiciary which seeks to have its decisions respected must be balanced.
The presiding judge in a competent court of law has the responsibility to insure that justice is administered in a fair and impartial manner. In matters of a political nature, courts are there to protect individuals and the public against the arbitrary use and abuse of State power.
They help to assert and reinforce people’s aspirations and the way they want to be governed. In both civil and criminal cases, courts make decisions based on the facts that are presented and not based on opinions or prejudices.
Judgements influenced by prejudices manifest themselves in the form of adverse judgments or opinions formed beforehand or without knowledge or examination of the facts.
In some cases, they may be influenced by the judge’s perception and knowledge of the parties involved outside of the court room or by the judge’s beliefs, persuasions or affiliations.
A quick scan of the cases handled by our judiciary system and judgements passed reflect a very worrying phenomena and a blow to the credibility of our court system. The judgements and decisions by some of our sitting judges are a very sad chapter in our legal system.
The biases are so glaring to the extent that they are making a mockery of our justice system as a whole. The recent decision by Justice Chinembiri Bhunu to deny bail to the 29 MDC activists charged with the murder of a police officer must worry every citizen who believes in justice and fairness. What makes the ruling more worrisome are the remarks he made during his ruling.
The remarks are shocking, rude, very blunt and one would be forgiven to think they are statements from a political activist rather than a judge. The judge went overboard in condemning the actions of the defence lawyers. If he had concerns regarding the conduct or strategy of the defence lawyers, he should have reprimanded them during the hearing as opposed to making it part of the judgement.
Alternatively, he could have called lawyers from both sides into his chambers and read a procedural riot act behind closed doors. After all, lawyers represent their clients and their interests to the best of their abilities. The strength or weakness of any case lies in the prosecution and defence strategies applied by both parties. Chief among them is the choice of witnesses and what they are likely to say in support of the facts and strategy.
The remarks he made in his ruling brought into the fore his views regarding the work of defence lawyers outside the courtroom. It is now patently clear that he doesn’t appreciate the human rights work done by the defence team as shown by his remarks during the ruling. The comments are not only disrespectful to his peers in the legal profession but also below the dignity accorded the bearer of Lordship and esteem of the honourable court.
In addition, the remarks lack moral sympathy and empathy for the deceased’s family, especially the father and brother. A family lost a son, a brother and a breadwinner and must be treated with compassion. It is both un-African and inhumane to pour vitriol towards a grieving person, more so the parent of the deceased. To label the grieving father as a gullible grant old man who had no choice but to follow blindly the lead of his son and lawyers is quite outrageous.
His unsolicited defence of ZANU PF in his ruling must have embarrassed even some senior ZANU PF officials who all along tried to make us believe that our judiciary system was not biased. His attack and labelling of the brother of the deceased as a bitter man who had a bone to chew with his rival party Zanu PF is a clear indication that the judge’s views are most likely shaped by his desire to protect the interests of ZANU PF at the expense of justice and fairness.
In the while the accused have been languishing in remand prison for close to two years. Without going into the detailed merits of the case, it takes a fool to believe that all 30 accused threw one stone which is alleged to have killed the police officer. Whatever the ending circumstances of the trial, Justice Bhunu has failed to approach the case with the level of impartiality expected in such a sensitive case.
In the interest of professional ethics, justice and respect to the legal profession, Justice Chinembiri Bhunu should consider recusing himself from the case. Justice is only considered justice if it is seen to be done. But is he alone in his political activism through the bench?
The history of our judiciary system is one that has long been tainted by incidences of judicial activism. The emergency of opposition politics especially as championed by MDC has seen judges failing to keep their political persuasions outside the courtroom.
The first major setback was in 2002 when Chief Justice Godfrey Chidyausiku reserved judgement on the Presidential elections results challenged by MDC presidential candidate Morgan Tsvangirai.
The matter was a serious constitutional matter which had consequences and implications on the way the country is governed. Instead of delivering a judgement one way or the other, Justice Chidyausiku did not view the matter as urgent and therefore reserved judgement indefinitely.
In the end Zimbabwe was ruled by a President whose legitimacy was challenged.
In another 2010 case involving Prime Minister Tsvangirai’s challenge of unilateral appointment of provincial governors by President Mugabe, the justice system has been moving at a snail pace to deliver judgement. The case is yet to go through a hearing as the courts are still entangled with procedural matters.
The governors are almost serving their full terms without a court determination. Their tenure and legitimacy were challenged yet they continued to make decisions which have a bearing on our provinces. If it was the other way round, the case would have been expedited and settled in a very short period.
To the contrary, less important cases were given priority by the same court and judge. In September 2010 Chief Justice Chidyausiku reserved judgement in the case of Jonathan Moyo seeking nullification of the election of Lovemore Moyo as Speaker of parliament.
That judgement was however issued a few months later in favour of the applicant who happened to be a ZANU PF member.
In July of 2012, Chief Justice Chidyausiku reserved judgement on President Mugabe’s challenge on the high court ruling compelling him to gazette a date for bi-elections in three vacant constituencies. The reservation only lasted for two months as judgement was later issued at the end of September.
Another interesting case is still pending before the Supreme Court with Chief Justice Chidyausiku having reserved judgement indefinitely. The appeal was brought forward by Arthur Mutambara who is challenging the High Court ruling which recognised Welshman Ncube as the bona fide principal of the MDC formation. We may have to wait longer or worse still never receive the judgement before the next elections.
By that time the case will be irrelevant and the people of Zimbabwe would have been prejudiced of proper representation in government.
There are obvious inconsistencies in what is regarded urgent and what is not. One would question what time is sufficient and reasonable for the purpose of getting an informed judgement. Reserved judgements are meant to give the judge ample time to consult relevant statutes, go through legal precedencies and make an informed decision.
The actions by some of our judges especially Chief Justice Chidyausiku and Justice Chinembiri Bhunu are making a mockery of our judiciary. Bad apples spoil the whole pack and such judicial activism is tarnishing the image of the judiciary system as a whole.
The judiciary is an important pillar of the State and its competence and independence are critical to the proper functioning of the State. Our Parliament must seriously consider reviewing and limiting the terms of office of Supreme Court judges and also put in place mechanisms for reviewing the performance of individual judges.
Jacob Nkiwane can be contacted on firstname.lastname@example.org
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