The day the judges went on trial

By Cyril Zenda

Any visitor to one of Harare’s five-star hotels last week Wednesday could tell that this was an unusual day.

A number of police details were milling around.

One section of the car park lot was closed… reserved for motley of top-of-the range cars… mostly Mercedes Benzes and Range Rovers.

One could sense the presence of very important people.

Whoever they were, these should be people who really matter more than any others in our society.

It was then that this writer, who for half the time is absent-minded, remembered that this was the day the Judicial Services Commission (JSC) was conducting interviews for four positions of judges of the Supreme Court of Zimbabwe.

Suddenly the whole mystery about the atmosphere of importance around the hotel started making a lot more sense.

Judges are very important people, judging by this writer’s years of covering the courts where these men and women — who are always referred to as “Your Lord” or “Your Lady” or “Your Worship” and some such titles reserved for God and the gods—are treated. They are indeed an enigma.

There should be something really super-human about them.

It therefore should be “naturally” the dream of each and every lawyer, who is worth his/her salt, to aspire to, one day, sit on the judicial bench… the higher the bench, the better.

So this writer joined others in the public gallery to observe the process introduced by the country’s new Constitution of vetting suitable candidates to sit on the judicial bench.

To everyone’s surprise, that aura of serious importance, authority and know-it-all immediately fell away the moment the interviews started.

For the majority of the eight High Court judges who had applied for promotion to the four Supreme Court posts available, this was a very bad day in office… a day some of them might have gone to sleep with their shoes on, one day that most of them would love to forget in a hurry, the day that they feared pinching themselves lest it confirmed that they were not having any nightmares, and therefore what they were going through was indeed the sad reality of their lives.

First to appear before the eight-member JSC panel, chaired by Chief Justice Godfrey Chidyausiku, was the head of the Bulawayo arm of the High Court of Zimbabwe, Justice Francis Bere.

During the interviews, JSC members would score candidates on each of nine qualities: Competence, integrity, industry, independence, experience, good judgment including common sense, relevant legal and life experiences; commitment to community and public service as well as potential for the post applied for.

Deputy Chief Justice (DCJ), Justice Luke Malaba wanted to know if Bere had any challenges understanding the basics of the law, judging by the very low work output combined with the high number of cases (43 percent) he presided over in the three-year period between 2013 and 2015, which had been overturned on appeal to the Supreme Court.

The DCJ wanted to know why Bere despite his record of poor judgments, and below average performance, thought of himself as being ripe for promotion to the Supreme Court, where his duties would involve correcting errors made by judges at the lower courts.

Bere’s first strategy was to disown the statistics, claiming that they were not a fair refection of his performance, because they only start from 2013, whereas he has been working very hard before that.

He wanted the statistics to start from the time of his appointment to the High Court bench in 2004.

“I don’t believe that I have that record, if the statistics were collected right from the time I started, it would have been different… obviously these statistics would be most beneficial to people who joined the bench much later,” Bere argued adding that: “I have no areas of the law that I have found to be unusually challenging.”

He further pointed out that the statistics in question did not reflect his time on the civil division of the High Court before he switched on to the criminal division.

However, he managed to wriggle his way out through most of the other questions posed by the panel.

Next in the firing line was Justice Priscilla Chigumba. While emphasising that unlike in the past when appointments to the Supreme Court were based on seniority, things had changed under the new Constitution, Chidyausiku wanted to know why after just four years on the High Court bench she thought she was sufficiently experienced as to leap-frog her seniors in the race to the superior court of appeal.

Chigumba argued that while she was indeed a distant 20 on the High Court’s seniority list and has only four years experience, her hard work and the 20 years experience since leaving law school — during which time she had worked as a lawyer, a magistrate, a researcher before becoming a judge — put her in a very good stead to qualify as a Supreme Court judge.

She pointed out that the fact that she was in the top five performers in terms of the highest number of judgments delivered was clear testimony of her industry.

Asked when she last presided over a criminal case, her response was that it was in 2010, when she was still a magistrate in Chitungwiza, and during her four years as a High Court judge she has never heard even a single criminal case, only cases of civil nature.

This led the panel to wonder how a person who has no experience of presiding over cases of criminal nature at High Court, such as murder, would seek promotion to a position where her duties would involve reviewing such cases.

Chigumba then appeared to have irritated Chidyausiku and his panel when she tried to defend a case in which she said she deliberately ignored the law to follow her own understanding of justice in a tax case because she wanted the case to proceed to the Supreme Court so that this particular position of the law (which says pay first and appeal later) could be re-visited especially in these harsh economic times when enforcing such a law could have disastrous effects on already struggling businesses.

This argument, which the eloquent Chigumba defended so passionately, earned her the nickname “Activist Judge” from the panel, but not before she was reminded by Chidyausiku of the doctrine of separation of powers, under which the duty to make laws rested with the Legislature, while the Judiciary was expected to concentrate on interpreting the law as it exist, not how an individual judge feels at a particular moment because the law has to be certain to all citizens at all the time.

Chigumba spent the remainder of her interview time trying her best to shirk off allegations raised by a Harare businessman, one John Kanokanga, that she solicited a US$20 000 bribe in a case involving US$500 000 in order to positively influence the outcome of the case in the businessman’s favour.

She stridently denied the charges, and the case is set to be investigated by the JSC.

Under the new system, when the list of applicants for judges’ posts has been published, members of the public are allowed to make both oral and written submissions giving reason why they object to the appointment of some of the candidates. This is the window that Kanokanga used to raise the red flag against Chigumba.

Next to be hauled over the charcoals was Justice Alphas Chitakunye (appointed High Court judge in 2003), who drew a lot of laughter from the gallery with his plain answers that mostly served to discredit him as a serious candidate.

In the three years under consideration, Chitakunye produced only 69 judgments compared to the highest figure of 333 delivered by another judge during the same period.

He hardly wrote any judgements (a requirement for a Supreme Court judge) and claimed that he had his own peculiar way of solving the cases without going the judgment route.

He said he was able to get the parties in dispute to talk each other out of litigation.

“I only dispose of cases that come into my tray,” was Chitakunye’s response to the question on why his output has been consistently low compared to other judges.

He went on to claim that since he was at the time in question seconded to the African Union’s committee of the African Charter on the Rights and Welfare of the Child (where he went for two weeks twice a year), these duties had tended to take away a lot of his time, contributing to lower output.

“So you are good at settling disputes, that is the role of arbitrators, not a judge,” quipped Chidyausiku as Chitakunye insisted — to the laughter from the gallery — that despite his very poor record, he had potential to vastly improve once he has been appointed to the Supreme Court.

He drew more laughter from the gallery when DCJ Malaba asked him if he knew anything about the principle of collegiality and how it would apply in his work as a Supreme Court judge.

Chitakunye’s answer was a plain “No!”

Collegiality is the relationship between colleagues. Colleagues are those explicitly united in a common purpose and respecting each other’s abilities to work towards that purpose.

Malaba then asked him what he understood by the doctrine of stare decisis which caused him to waffle something incomprehensible forcing the DCJ to repeatedly ask him if he knew it, after which he asked him to admit that he did not.

Stare decisis is a Latin term meaning “to stand by that which is decided”.

Stare decisis is a legal principle that dictates that courts cannot disregard the standard… that the court must uphold prior decisions.

Next to defend his application for promotion to the Supreme Court was Justice Samuel Kudya, the lone ranger in the Fiscal Appeals Court, who took most of his time trying to defend his record of producing the number of judgments as low as just two per year on what he argued was the complex nature of the cases he handled.

He told the panel that it was unfair to try and measure a judge’s performance by the number of cases they handled because civil cases such as divorce and others were incomparable to the very complex tax appeal cases he handled.

“It is like comparing salt and pepper, chalk and cheese or apple and oranges… they are not comparable,” mourned Kudya, who told the panel that he wonders how he has not suffered any nervous breakdown due to the overwhelming work burden that he carries.

He said before he was moved to the Fiscal Appeals Court, where he had to literally set up everything and teach himself how to handle the cases with no one to consult, his annual output was more than 100 cases.

“Sometimes I have to read voluminous documents of upto 3 000 pages, and this could be just one of the many documents that I have to go through,” said Kudya who added that one party in a case he was hearing once threatened to ask that a whole courtroom to be cleared of everything so that he could fill it up with files that would help him argue his case.

Chidyausiku, however, dismissed Kudya’s pleas saying that these were mere excuses because in cases where any of the parties to the very same case that Kudya would have heard was unhappy and appealed to the Supreme Court, the judges there would go through the same voluminous files without using that as an excuse to handle fewer cases than others.

Kudya, just like Chitakunye before him, did not know the principle of collegiality, let alone the doctrine of stare decisis, which he said maybe he knew it in its English version.

The next to be interviewed by the panel was Justice Charles Hungwe.

He was interviewed shortly after lunch break and by the time this writer came in, the interview was coming to an end.

In the past, Hungwe has been haunted by issues to do with his private life (including a sex scandal) as well as cases of delayed judgments.

However those who were in the gallery said Hungwe — who has previously appeared before the same panel — fared quite better than all others who had appeared before the panel to this point.

As if to confirm this, just before releasing him, Chidyausiku asked Hungwe what it was that had transformed him so much.

“What has happened to you, if I may ask? The Justice Hungwe that is appearing before this panel is so different from the one we used to know… I should commend you for this transformation,” Chidyausiku said.

“I attribute it to maturity… we all grow professionally and I would like to thank my colleagues for encouraging me to do better,” a humbled Hungwe responded.

Next in the queue was Justice Joseph Mafusire, who has just been posted to head the newly set-up High Court in Masvingo.

While he managed to give a rough idea of what the doctrine of stare decisis was, it was however all systems out when it came to the principle of collegiality.

That was the beginning of his problems. Having been on the High Court bench for just three years and eight months, Chidyausiku wanted to know why he thought of himself as ripe for promotion to mark other judges’ work. He could not give a straight answer.

He was then asked about his record in criminal law. He had none.

The Chief Justice reminded Mafusire that only a few months ago, when he was told about the pending deployment to Masvingo, the reason he had given to duck the deployment was that his criminal law experience was as good as non-existent as he had specialised exclusively in civil matters during his time as a lawyer in private practice.

Chidyausiku wanted to know what had suddenly changed now that Mafusire was saying he has passable criminal law knowledge.

He argued that his 26 years as a lawyer before joining the bench qualified him to be a Supreme Court judge to which Chidyausiku retorted: “You are qualified to be a High Court judge, not a Supreme Court judge!”

To test his understanding of the criminal law, the panel asked Mafusire to give just one act that was not a criminal offence before Zimbabwe’s criminal law was codified that is now criminal following the codification of the law.

After scratching his head for some time, he admitted that he did not know any.

Next to be grilled was Justice Lavender Makoni, whose 14 years experience on the High Court bench (currently the head of the Civil Division) Chidyausiku dismissed as more administrative not useful for a Supreme Court judge.

She defended the fewer cases she has handled to the other duties she does at the High Court and the very few written judgments she had passed saying she does “not just write judgments for the sake of writing judgments”, but only when she has a legal point to make.

She argued that the few judgments that she has written were of very high quality as testified by most of them finding their way into the law reports.

Her administration experience appeared to have assisted her on just giving vague explanations of the meaning of the two sticky legal terms that had appeared to be formidable obstacles for her colleagues.

Asked by Chidyausiku if she would be happy to be appointed to the Supreme Court bench on the strength of her seniority than her professional experience, Makoni said she would not accept such an appointment.

However, when she was asked that since the Constitution insists on fair gender representation, since she was one of the only two women interviewed for the available posts, would she be comfortable sitting on the Supreme Court bench on the gender ticket, Makoni said she should gladly accept.

This prompted Chidyausiku to ask her what difference it made since in both cases, she would not have pulled herself up by her own bootstraps.

“The difference is that the other one is provided for in the Constitution,” a very cool Makoni responded.

The last to face the firing squad was Bulawayo High Court judge, Justice Nicholas Mathonsi (they came in alphabetical order), a man who effortlessly answered all questions drawing cheers from the gallery to confirm his record as the best judge in the country, both in terms of volume of work and the quality of his judgements.

Under the new Constitution, after the interviews, the JSC is supposed to send a list of the candidates with the highest scores to the President, who would then make appointments from that list. He cannot make any appointment from outside the list.

If the President has any objections to the names on the list, the JSC would have to conduct fresh interviews to come up with a fresh list.

This is unlike in the past when the President could appoint people to the bench without being strictly guided by the recommendations of the JSC.

It was that system that, coupled with political patronage, has resulted in the current scenario where the bench is crammed with some of characters whose professional qualifications and commitment to duty are questionable.

As those that have been observing from the public gallery — mainly lawyers, law students and people with interest in human rights and the rule of law — discussed the interviews over teas, many felt that if the candidates are to be appointed strictly on merit, only Mathonsi and Hungwe should make it, but if four judges have to be appointed for the sake of meeting the figures, then either Bere or Kudya should make it together with Makoni who would serve to satisfy the gender requirements of the Constitution.

It would be a typical case of “gentlemen amateur”.

Chigumba’s situation has been made untenable by the charges that she faces as well as her lack of experience in criminal cases at High Court level.

Of the 13 members that the Supreme Court is supposed to have, currently five members are women, of whom Justice Vernanda Ziyambi is due for retirement in December.

As the spectators trooped out of the venue, some could be heard yawning aloud that if candidates for Cabinet appointments would be made in a similar fashion, this country would once again start moving forward.

That brought an end to the day judges went on trial to defend their status: A day that separated those that earned their status from those that got it on a silver platter.

Sadly for those that performed badly, they were made to look small and powerless in the full glare of members of the public and some lawyers, the very same people who would be expected to hold them in very high esteem in the future. Financial Gazette