Corrupt judicial officers will face the music

THE Constitution of Zimbabwe, under Chapter 8, provides for the creation of
the judiciary. The head of the judiciary in Zimbabwe is the Chief Justice
and the judiciary forms one of the three organs of the State; the other two
being the executive and the legislature.

The doctrine of separation of powers basically ensures that State powers are
not concentrated in any one organ of the State. It is not uncommon however,
particularly in totalitarian regimes, to have State powers unduly
concentrated in the executive arm of the State with the legislature and the
judiciary only being weak and severely compromised institutions.

An independent judiciary is the cornerstone of a democratic nation. It
naturally follows that an independent and fearless judiciary is a necessary
instrument in upholding the rule of law and the observance of human rights.
On the other hand, a biased, partisan and corrupt judiciary is the nemesis
of a democratic dispensation.

History is abound with examples of how dictators normally ensure the
subjugation and subordination of the judiciary in their quest to hold onto
power and thus, bastardise the rule of law. The rule of law is defined as
the respect for a set of legal rules and procedures ultimately aimed at
conforming to the requirements of the observance of basic fundamental human
rights. It cannot be over emphasised, therefore, that a judiciary that is
biased, inefficient, corrupt and lacking in independence is the very
foundation for the decay of democracy values and the emergence of
totalitarianism.

By deliberately providing for the establishment of the three organs of the
State, the Constitution of Zimbabwe sought to provide a system of checks and
balances where no one organ of the State should dominate and indeed,
frustrate the other.

The absence of an independent and fearless judiciary inevitably encourages
the supremacy of the law of the jungle i.e. where might is right. This is a
primitive and chaotic state of affairs where the guiding principle is the
survival of the fittest or put alternatively; the survival and economic
domination of the politically well-connected. Indeed, it is the antithesis
of the rule of law when the law of the jungle is left to rule the roost.

It is a fact that the world's most politically stable and economically
vibrant nations are invariably those that have a fearless and independent
judiciary. A judiciary that is emasculated tends to be weak, biased and
corrupt. Such a judiciary will be a purveyor of injustice, oppression and
general misrule.

In Zimbabwe, we should never allow our judiciary to be compromised and also
to be seen to be prone to abuse by politicians and some other such
characters who are keen to push forward their undemocratic agendas. A
judiciary which fails to fearlessly articulate, defend and uphold the basic
human rights of citizens is a betrayal of the people. Such a judiciary
inevitably becomes a catalyst to the sustenance of a dictatorship.

An independent and fearless judiciary should go out of its way to prove that
everyone is equal before the law. Such a judiciary should instil the
people's confidence in the legal system of Zimbabwe and it should be
uncompromising when it comes to the upholding and enforcement of the rule of
law.

Recently, the country witnessed a very sad and unfortunate development in
which all the learned magistrates in Manicaland province refused to preside
over the criminal trial of the Minister of Justice mainly because a certain
named top government official had threatened all the magistrates with
unspecified harm and had also accused the magistrates of being members of a
certain opposition party.

Surely, such a state of affairs is a very sad indictment on the level of
fear that is found in some members of the judiciary. How then can we talk
about the rule of law in Zimbabwe when magistrates in the whole province of
Manicaland were so afraid of presiding over the criminal trial of the
Minister of Justice? This is a shame!

An independent and fearless judiciary is the main champion of justice and
fairness. It is the ultimate authority for the enforcement and observance of
human rights and the rule of law. A judiciary that takes ages to deal with
election petitions inevitably compromises its integrity and its impartiality
in the minds of all right-thinking people. A judiciary that slavishly take
sides with the whims and designs of the executive arm of the State at the
expense of the enforcement of basic human rights is a disgrace to the
generality of Zimbabweans.

All court cases, be they politically connected or not; deserve to be handled
with speed, efficiency, competence and extreme impartiality. A situation
were litigants wait for unduly long periods of time before their cases are
heard and finalised, particularly in election petitions, is a negation of
the people's fundamental human rights. Justice delayed is justice denied.

Because of the overwhelming importance of the judiciary in a democratic
dispensation, judicial officers should be persons of unquestionable
integrity, competence and professionalism. It is my humble view that there
should be a rigorous screening and selection process before someone is
appointed to the judiciary; particularly to the High Court and Supreme Court
benches.

We might have to learn from the example of South Africa where all persons
ear marked for appointment as judges have to appear before a parliamentary
committee as part of the screening process. The parliamentary committee
consists of members from all political parties represented in Parliament.

This committee scrutinises and debates the suitability of candidates before
they can be appointed to a high judicial office such as to be a High Court
judge, Supreme Court of Appeal judge or a judge of the Constitutional Court.
Preferably, therefore, only persons who have an illustrious and outstanding
record in any relevant legal context, should be appointed to a high judicial
office.

Judicial officers should shun corruption. A corrupt judiciary is extremely
dangerous for it can be abused and manipulated by powerful and influential
people; including the fabulously rich and the politically well-connected.
The example of the Kenyan judiciary is apt. Not too long ago, the Chief
Justice and twenty three other senior judges in Kenya had to resign after
findings from the Ringera Report were presented to President Kibaki. The
Ringera Report contained damning details of corruption and abuse of power
within the Kenyan judiciary.

The majority of the judges implicated in corrupt dealings opted to resign
rather than to be probed by a tribunal as recommended by the Honourable
Justice Ringera's report.

Judicial officers in Zimbabwe should view the Ringera report as a warning
signal. The time shall soon come when all incompetent, inefficient and
corrupt officers will face the music. The people are angry. Very, very
angry!

Obert Chaurura Gutu is a Gutu & Chikowero lawyer. He can be contacted on
e-mail gutulaw@mweb.co.zw