Transformation of the rule of law institutions: A necessary good
The following is a keynote address by Senator Obert Gutu, the Deputy Minister of Justice and Legal Affairs in Zimbabwe.
His paper was titled ‘Transformation of the rule of law institutions: A necessary good” and was delivered at the symposium on concluding the common standards for judicial and prosecutorial independence in the SADC region held 28-29 June 2013 at the Amanzi Hotel in Harare.
By Senator Obert Gutu
The independence of the judiciary is central to the administration of fair and equal justice in a democratic society.
The independence of the judiciary is well enshrined in the constitutions and constitutional jurisprudence of African countries, it is linked to, and derived from, two seminal principles: the separation of powers; and the rule of law.
This means theoretically, that the three arms of the Government, the Legislature, the Judiciary and the Executive, should be clearly separated from each other, and that each should operate independently of the others. This theory is, however, not easy to achieve.
The role of the judge is essential to the proper administration of justice as a public service. He or she is therefore not independent in regard to the manner in which he or she performs this service, but only when exercising his or her judicial power in settling cases under litigation.
For as long as judges are appointed, paid, promoted, or removed from office by persons or institutions controlled directly or indirectly by the Executive, the judiciary’s independence may be more theoretical than real.
There are provisions in the constitutions of many African countries like Ghana, Kenya, Uganda, Zambia, Namibia, South Africa and Zimbabwe, for the establishment of a Judicial Service Commission, which recommends or nominates those to be appointed as judges by the Executive.
The composition of the Judicial Service Commission, which is intended to be impartial and free from Executive interference or influence, is not only composed of judges and members of the legal profession, but in some instances representatives of civil society.
The membership of the Chairman of the Civil Service Commission, the Attorney-General and the “Cabinet member” responsible for the administration of justice, persons “designated by the National Assembly” and persons designated by the “President as head of the national Executive”, of a Judicial Service Commission, does not make such a body entirely free from executive or political influence.
Whilst the fact that some of these persons are ex officio, members of the various Judicial Service Commissions, Presidential appointees, and in some cases, like the Attorney-General, enjoying the security of tenure, would seem to balance the power of the President over a Judicial Service Commission.
The fact that they are appointed to their respective offices, and as members of the Judicial Service Commissions, by the President, may well make the Judicial Service Commissions to be creatures of the respective Presidents.
The role of the Executive in the removal of judges from office is an important issue. In Namibia, a judge may be removed from office by the Executive upon the recommendation of the Judicial Service Commission having first investigated whether a judge should be removed on the ground of “mental incapacity” or “gross misconduct”.
The role of the Malawian Judicial Service Commission is somewhat different. A judge may be removed from office by the President in consultation with the Judicial Service Commission after the removal of the judge from office on the grounds of incompetence or misbehaviour, has been debated and passed by the parliamentary National Assembly. Similarly in South Africa, a judge may under section 177 of its Constitution, be removed from office only if:
“The Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.”
In Zambia and Zimbabwe, if the President considers that the question of removing a judge ought to be investigated, he will appoint a tribunal to inquire into the matter and whose recommendation shall be acted on, by the President.
The existing discrepancies already illustrated demand reconciliation in order to make the role of the judiciary in Africa, as a whole, an independent and effective arm of government.
In this respect, attention must be given to related issues concerning existing African regional courts and to the possibility of having a conference of African judges to make suitable proposals.
Prosecutorial independence on the other hand, is closely related to the independence of the Judiciary. In making sure that, everyone has a right to a fair trial, states must ensure that prosecutors are aware of the constitutional and statutory protections for the rights of the suspect and the victim and in addition, of human rights and fundamental freedoms recognized by national and international laws.
States must also ensure that prosecutors perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to Civil, penal or other liability. The principal role of the Prosecutorial Authority is to assist the court systems to arrive at the truth and to do justice between the accused, the state and the community at large in accordance with the law and the dictates of fairness.
The prosecutor must exercise his duties professionally and diligently and shall always protect the accused’s right to a fair trial and the dignity and rights of complainants. Furthermore, he has the duty to promote and protect the public interest. Tampering or concocting evidence to affect the outcome of criminal proceedings is prohibited and the prosecutor must carry out his duties with competence and the requisite expertise.
The Prosecutorial Authority has a duty to co-operate with the police, legal professionals and relevant government departments, but this does not mean that its independence should be encroached on. The duty of the prosecutor to co-operate with the defense counsel or the accused person is in so far as that co-operation will aid the pursuit of justice.
In order for the prosecution to carry out its duties objectively, it has to remain independent and free from political or any other interference or influence and in the event of any such influence, the prosecuting Authority has a duty to report such action to the relevant authorities.
Motives, other than to dispense justice must not be exercised. Therefore, the Prosecutorial Authority has a duty to ensure that it does not waste the court’s time and or abuse the criminal justice system for other motives other than to do justice.
For prosecutorial independence to exist, the Prosecutorial Authority must exercise its functions in complete independence and on the basis of an objective assessment of the facts and understanding of the existing law. This function shall be exercised free from all pressures, threats, interference and external supervision, hindrance from any quarter or any other reason.
Furthermore, the prosecution is entitled to have the independence to decide on which matters to institute, suspend, stop or withdraw and must not be unduly influenced by inappropriate private and or political interests. The authority is supposed to have the power and exclusive control of issues relating to the unrestricted control of whether and how the matter will be conducted and ultimately adjudicated.
Under all circumstances the prosecutor should exercise his function with a degree of independence that will allow him to give full effect to his constitutional mandate. In deciding whether to prosecute a case, public interest must be considered as well as whether the accused, in the circumstances, will be afforded a fair trial. This decision furthermore, shall not be a result of direct or indirect pressure from political or private sectors.
In terms of the performance of its duties, the Prosecutorial Authority should be free from all inappropriate connections with, and influence by, the Executive and Legislative branches of Government and other powerful interests. The practice of using Police officers as prosecutors poses other challenges.
This practice is not ideal for the attainment of justice. However, where the use of police prosecutors is unavoidable, such officers must report directly and exclusively to the designated superior officers who are members of the Prosecutorial Authority.
The duty of impartiality by the Prosecuting authority must be exercised, its activities must be conducted in a manner that does not injure or impair its impartiality. In addition, every officer in the Prosecution Authority shall perform his or her duties without fear, favour, bias and or prejudice.
His or her personal preferences or opinions should not influence the course or final determination of the matter he or she is handling. Consequently, every prosecutor shall disclose personal or other interest in a matter handled by him or herself. This also applies to judges and magistrates.
The Attorney General is the principal legal advisor to Government. The Attorney General is, therefore, mandated to represent Government in courts of law or any other legal proceedings to which the Government is a party.
However, there can never be absolute independence in any office, unless such an office “exists in isolation”
Research shows that, “there is little independence because the security of tenure is not guaranteed and whoever is to serve in the office is always insecure of being removed from office if he/she disagrees with the Appointing Authority. Even when the holder of the office would like to be objective, the political pressure mounted on him/her makes them prone to the political power, and it only takes the bold to withstand such pressure,”
The Attorney General should not be a member of Cabinet. If the Attorney General is to attend cabinet meetings, it should be as an ex-officio member. The same principle in Parliament should again be applied.
The terms and conditions governing the Attorney General’s office should be similar to those of a Supreme Court Judge. There is need to have an Attorney General who is independent and non-partisan with guaranteed security of tenure so that he/she can function without fear or favour.
The justice system in Zimbabwe comprises the following elements: the Supreme Court, the High Court, the Administrative Court, Magistrates’ Courts, the system for the administration of the courts, the office of the Attorney General and associated public prosecutors, and the legal profession.
The Justice System is a crucial ingredient to the smooth flow of the rule of law in Zimbabwe. It is at the apex of ensuring that Separation of Powers is observed and practiced. The Judiciary provides for Checks and Balances in the exercise of power by the other two arms of state namely, the Executive and the Legislature.
In recent years, the Justice system has been massively compromised by lack of adequate Government support in areas such as finance and protection of members of the judiciary. The disregard of human rights defenders such as lawyers has also massively jeopardized the Justice system in Zimbabwe.
The Constitution of Zimbabwe is the Supreme law of the land and any other law which is inconsistent with it is deemed void. Therefore, Zimbabwe has Constitutional Supremacy as opposed to parliamentary Supremacy.
The legal profession in Zimbabwe is a fused profession and is regulated by the Legal Practitioner Act 1981 which makes provision for the registration of practitioners as well as for legal education. Registration procedures for admission as legal practitioner to the High Court remain in the hands of the court. Requirements for registration are, inter alia, that the practitioner should be a “fit and proper person” and that the practitioner should be resident in Zimbabwe.
Candidates are required to have such qualifications as are prescribed in the rules made by the Council for Legal Education. The Council for Legal Education is a body comprising eight members appointed by the Justice Minister.
Of the members of the Council, two are direct Ministerial appointments, the Chief Justice and Attorney-General each appoint one further member and the remaining four are selected from nominations of four candidates each made by the Law Society of Zimbabwe and the Law Faculty Board of the University of Zimbabwe.
Judges, prosecutors and lawyers form part of the legal professions and without them, there can be no truly efficient protection of the rights of the individual at the domestic level.
A legal system based on respect for the rule of law also needs strong, independent and impartial prosecutors willing resolutely to investigate and prosecute suspected crimes committed against human beings even if these crimes have been committed by persons acting in an official capacity.
Unless judges and prosecutors play their respective key roles to the full maintenance of justice in society, there is a serious risk that a culture of impunity will take root, thereby widening the gap between the population in general and the authorities.
If people encounter problems in securing justice for themselves, they may be driven to take the law into their own hands, resulting in a further deterioration in the administration of justice and, possibly, new outbreaks of violence.
The legal system would not be complete without independent lawyers who are able to pursue their work freely and without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and that individual rights are protected effectively.
Research shows that that, special rapporteurs of the United Nations Human Rights Council have emphasized the close relationship that exists between the greater or lesser respect for the due process guarantees of article 10 of the Universal Declaration of Human Rights and the greater or lesser gravity of the violations established.
Human rights and fundamental freedoms are, in other words, “all the better safeguarded to the extent that the judiciary and the legal professions are protected from interference and pressure”.
In spite of the need for judges, prosecutors and lawyers to exercise their professional responsibilities in true independence, experience shows that they are often subjected to pressures of various kinds aimed at compromising their ability to do so.
Human remuneration (bribes) may also constitute a threat to the independence of judges in that it may for instance, make them more amenable to corruption. Furthermore, the independence of judges, prosecutors and lawyers is frequently threatened by the refusal of the Executive to allow them to organize freely in professional associations.
For instance, where the Executive issues licenses to lawyers and obliges them to exercise their profession as members of State-run professional organizations, they cannot carry out their work independently.
However, judges, prosecutors and lawyers are frequently also subjected to other kinds of persecution. Such acts may involve public criticism by either the Executive or Legislature aimed at intimidating the legal professions, but they also often take the form of arbitrary detentions and direct threats to their lives, including killings and disappearances.
The threats and attacks described above are not only perpetrated by State authorities, but are frequently also carried out by private individuals. Clearly, unless judges, prosecutors and lawyers are able to exercise their professional duties freely, independently and impartially, and unless the Executive and the Legislature are likewise always prepared to ensure this independence, the rule of law will slowly but steadily be eroded, and with it effective protection of the rights of the individual.
In conclusion, as can be seen, there is need for the entire structure of a free and democratic Constitutional order to be upheld by an independent and impartial Judiciary, independent and impartial prosecutorial Authority and independent lawyers.
I Thank You.