Big Saturday Read: How the Chief Justice Threatened Judicial Independence
On 16 July 2020, the Chief Justice of Zimbabwe issued a memorandum to judges of the High Court. The purpose of the memo was to give directives concerning how judges handed down judgments in some issues. The essence of the directive was that once a judge delivers judgment, it cannot be withdrawn, and it should be accessible to all parties. The directive contained a provision which read as follows:
“Before a judgment or an order of the High Court or Labour Court is issued or handed down, it should be seen and approved by the head of the court or division.” (emphasis added)
This part of the directive was highly problematic, and it rightly caused an uproar among lawyers and judges of the High Court. The requirement that judgements or orders “should be seen and approved” by the head of the court or division was a serious interference in the independence of the judge. The essence of judicial independence is that a judge who presides over a matter should carry out his functions without any interference, not even from his or her superior. To do so, would infringe upon the judicial decision-making process.
The Chief Justice’s directive was therefore promptly resisted by members of the public, lawyers and judges of the High Court. A second memorandum was issued the next day on the 17th July 2020, with an amendment to the controversial paragraph. It now read as follows:
“Before a judgment or an order of the High Court or Labour Court is issued or handed down, it should be seen by the head of the court or division”
The difference between the first and second memos was that the words “and approved” had been removed from the latter. All judgments were supposed to be “seen” by the judges’ superior. This did not change the cause of complaint because the meaning of the directive that a judgment had to be “seen” by a superior was still vague and constituted a broad interference in the functions of a judge. Why should a judgment be “seen” by a superior? What would the superior do after “seeing” the judgment? It was still an unwarranted interference in the independence of a judge. It was as if judges had become pupils of their superior to whom they were supposed to submit their judgments for marking.
High Court Judges’ objections
On 22 July 2020, judges of the High Court wrote a memorandum in response to the Chief Justice. They argued that the directive was impractical because judges couldn't hand over judgments or orders in all cases. For example, there are orders that are handed down in uncontested cases (called motion court proceedings) or bail applications in which orders are handed down immediately and in large numbers. In such cases, it’s practically impossible to ask the superior to “see” the order before it is handed down.
They argued that the directive was “highly objectionable and completely unacceptable for a number of reasons”. They objected to the infringement of judicial independence by “administrative fiat”. They also argued that in terms of the Constitution, judges do not “operate under any other judge or person or body”.They objected to the vague and broad nature of the requirement that a superior should “see” a judgment before it was handed down.They argued that the directive lacked precision as to its practical meaning and what the superior ought to do after “seeing” the judgment.
These were sound objections by the judges. More significantly, it was remarkable and bold of the judges to come together in defence of their individual independence in the exercise of their functions, against an overbearing Chief Justice whose directive was plainly in violation of the Constitution. They could have easily succumbed to the directive, which represented a direct assault on their constitutional functions. It is commendable that they stood firm against their boss’ ill-advised and constitutionally offensive directive.
Perhaps the judges of the High Court also realise that given the Chief Justice’s age he is now a lame-duck head of the judiciary and therefore he is easy to challenge. Chief Justice Malaba is due to retire soon when he reaches the age of 70. It’s instructive to note that Judge President George Chiweshe, a former soldier who heads the High Court is not one of the candidates to fill the vacancies at the Constitutional Court. Perhaps he knows he will soon replace Chief Justice Malaba as head of the judiciary because that job is by the appointment of the President. He doesn't have to go through the public interview process. Zimbabweans must realise that if Justice George Chiweshe does ascend to the top of the judiciary, it will complete the process of militarisation of the judicial arm of the State. He is the judge who ruled that the coup of November 2017 was perfectly constitutional.
Law Society Pressure
More pressure also came from the Law Society of Zimbabwe, the body that represents members of the legal profession. The Secretary of the Law Society of Zimbabwe wrote a letter to the Chief Justice registering the legal community’s concerns and reservations over the directive in the two memoranda. The LSZ argued that the effect of the directives was to “destroy the independence of the judiciary” and that it had “caused alarm with the legal profession and beyond”.
The Secretary of the Judicial Services Commission responded to the LSZ’s letter on 21 July, setting out the background to the Chief Justice’s memo. He explained that the JSC had received complaints about judges who were not delivering the written judgments to litigants after handing down an order.
He explained that the spirit of the directive was to encourage judges to issue judgments only when they were ready to be made public. The concerns raised over the paragraph which required judgments to be seen and approved by the head of the court were noted, he said. “We wish to assure the profession and the public at large that the memorandum was not meant to stifle the independence of the judiciary, neither was it meant to give Heads of Courts/Stations/Divisions review powers over judgments and decisions made by fellow judges,” the JSC Secretary wrote.
“We now realise that this paragraph has created the unfortunate and unwelcome perception to a memorandum which was put together in an effort to address grievances raised by the profession and litigants …” he added. He waxed lyrical about how the Chief justice was a “firm believer in the independence of the Judiciary”. He admitted that the said paragraph had created the impression that there was interference with the independence of judges. The offending section was, therefore “expunged from that memorandum”.
The LSZ confirmed to its members that following engagements with the Chief Justice, the memorandum had been withdrawn and replaced. This means in total there were three memoranda by the Chief Justice. The first on 16 June required judgments to be “seen and approved” by a superior. The second on 17 June required judgments to be “seen” by a superior. The third on 20 July completely expunged the offending paragraph. This came after severe protests from the public and the legal profession. As already indicated, judges of the High Court also expressed their objections.
Analysis of the Chief Justice’s directive
It is concerning that the head of the judiciary who is in charge of the Constitutional Court, the ultimate authority of the interpretation of the Constitution issued such memorandum to his subordinates in the first place. Section 164 of the Constitution outlines the supreme principle of independence of the judiciary. It states that “courts are independent and are subject only to this Constitution and the law”. It provides that no other person may interfere with the functioning of the courts.
Significantly, section 165(3) of the Constitution makes it clear that “When making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence”. It is this provision, in particular, which should have restrained the Chief Justice before even contemplating issuing such a memorandum to fellow judges. Directing judges that their judgments or orders must be “seen and approved” by a superior betrays an unprogressive mindset for someone holding the lofty office of Chief Justice. It doesn’t help that even when that was resisted, he thought it was better for judgments and orders to be “seen” by a superior before further objections forced a complete climbdown.
It is bad enough that judges suffer pressure from the executive arm of the State. Some of this pressure is subtle, such as poor remuneration and conditions of service. This commits judges to a difficult life of financial pressures, as if taking judicial office comes with a vow of poverty. The problem is that judges become vulnerable to corruption. They are expected to adjudicate legal disputes involving thousands and sometimes millions of dollars. Their role presents several rent-seeking opportunities and even the strong-willed among them can easily succumb to bribes if they are left in conditions of penury.
It also makes them vulnerable to the State, which will expect them to toe the line in return for more wages. We have already seen how several judges were beneficiaries of the RBZ Farm Mechanisation Scheme in 2007/08. Under the new Constitution that would be illegal. Section 165(5) prohibits members of the judiciary from soliciting or accepting “any gift, bequest, loan or favour that may influence their judicial conduct or give the appearance of judicial impropriety”. We now know that the machinery and equipment given to some judges under the Farm Mechanisation Scheme was a loan which was later converted into a grant. In other words, they got gifts from the RBZ. They cannot be expected to be impartial in a matter involving disputes over the RBZ Farm Mechanisation Scheme. This is why judges must be well-remunerated so that they do not become charity cases in the hands of powerful politicians or bureaucrats.
Justice Delayed, Justice Denied: Misdirected Magistrates
Concerns about the justice delivery system became apparent this week when Hopewell Chin’ono and Jacob Ngarivhume were finally released on bail at the fourth time of asking. They won their second appeals to the High Court. The judges who delivered the judgments in separate cases held that the magistrates had misdirected themselves both on the law and facts. The common finding in both cases was that the magistrates had erred in failing to recognise and take into account the fact that 31 July, the date when the demonstrations were scheduled had come and gone and that this was a changed circumstance.
In order to be considered for bail at the second application, the accused persons were required to demonstrate that there were new facts that had arisen following the first bail application which had been rejected. Lawyers for both accused men had argued that the fact that 31 July had passed without incident was a changed circumstance. After all, the first bail applications had been rejected on the basis that there was a real risk that the two men would opersist with their call for demonstrations to remove the government on 31 July. Now that the date had passed, there was no longer a reason to keep them in custody.
The State had opposed the fresh bail applications and argued that the passage of the 31 July date was no longer relevant because there was now a 31 July Movement which the two men would still lead. However, no evidence was led to support this claim. One of the judges described it as based on conjecture. Both judges set aside the rulings of the magistrates, holding that they were misdirected in failing to recognise that this was a changed circumstance.
Now, it is possible for judicial officers to err in their interpretation of the law and facts. This is why there is a facility for appeals to a higher court if a litigant is not satisfied with a judgment. Nevertheless, a judicial officer is required by the Constitution to “respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system” (section 165(2)). A judicial officer must apply the law “impartially, expeditiously and without fear, favour or prejudice” (section 164(1)).
In addition, judicial officers have a duty to protect human rights and freedoms and the rule of law (section 165(1)(c.)). There must be no bias, malice or bad faith in the process of judicial decision-making. Another constitutional principle is that “justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness” (section 165165(1)(b)).
These are the standards by which the conduct of the judicial officers who handled the bail applications of Hopewell Chin’ono and Jacob Ngarivhume must be measured. Of particular interest here is the conduct of Magistrate Nduna in the case of Hopewell Chin’ono. Justice Chitapi found that he had committed a “serious misdirection” because he failed to deal with evidence that was presented to him concerning the accused’s health in light of the terrible prison conditions. The magistrate had granted an application by the State to clear the courtroom so that Chin’ono’s evidence would be heard in camera (in private). Chin’ono had given this evidence, but the magistrate simply ignored it and instead made a false finding that no evidence had been given. This was false and malicious. As Justice Chitapi stated in his judgment,
“The learned magistrate commented that the applicant had capitulated because his intended audience had been cleared from the courtroom. In reasoning so, the magistrate was misdirected because the appellant in fact gave evidence. It is trite that a judicial officer commits a serious misdirection which vitiates the judgment reached where the judicial officer omits to deal with evidence led and proceeds to give judgments oblivious of such evidence. In this case, it was worse because the learned magistrate actually mentioned that there was no evidence led yet there was.”
This paragraph from the judgment is a serious indictment concerning Magistrate Nduna’s conduct as a judicial officer. The judge is right that he committed a serious misdirection. The magistrate’s omission of Chin’ono’s evidence could not have been accidental. It can’t have been a mere mistake because he actually falsely stated that there was no evidence when as the judges stated, that evidence was available. The magistrate knew what he was doing. The essence of the judge’s comments is that the magistrate deliberately omitted or falsified evidence led by Chin’ono. This is highly improper conduct by a judicial officer.
The same magistrate had in a previous judgment removed Hopewell Chin’ono’s lead counsel, Beatrice Mtetwa, holding her responsible for comments which were posted on Facebook. He also ordered that a copy of his judgment should be placed before the Law Society of Zimbabwe, the idea being that the regulatory body should consider taking action against her for misconduct. Justice Chitapi had also made comments against Mtetwa in an earlier appeal to the first bail application. Although the judge found that the magistrate had falsified evidence given by an accused, he did not make any further comments concerning the magistrate’s highly objectionable conduct.
For its part, the Judicial Service Commission should look into the conduct of the Magistrate because his conduct is an embarrassment to the judiciary and the administration of justice. After the way he had handled the case, he lost objectivity and made it personal. Otherwise how does a fair-minded and impartial judicial officer claim that no evidence was given when it was clearly presented before him? The best course of action in that matter would have been for Magistrate Nduna to have recused himself and let another magistrate handle the matter. It is because he had become too involved and too interested as a party in the proceedings that he ended up deliberately omitting evidence which was on the record. If the JSC does not call out such misconduct, it will encourage bad behaviour which embarrasses the judiciary.
Taking Responsibility Seriously
It appears that Zimbabweans have been suffering for such a long time that citizens have become prisoners of victimhood. The trouble with this is that many appear to have been robbed of agency; their ability to act even where opportunities present themselves. Perhaps in doing a SWOT (Strengths, Weaknesses, Opportunities and Threats), we have become so focused on weaknesses and threats as opposed to our strengths and opportunities. This means we let opportunities pass us by after which we resort to what we have become used to: moaning about exclusion, unfairness and similar ills. Let me give you an example of how we let opportunities pass us by after which we moan.
Sometime at the end of May 2020, the Judicial Services Commission (JSC) issued a notice calling for nomination of candidates to fill vacancies at the Constitutional Court. This call for nominations is in terms of the Constitution. Section 180(2) provides that whenever a judicial vacancy arises the JSC must advertise the position and invite the President and the public to make nominations. Thereafter it must conduct public interviews of the candidates.
When we wrote the Constitution, we fought hard to ensure that judicial appointments would be open, transparent and accountable. This is why we advocated for a process that included members of the public to make nominations so that it wouldn’t be a monopoly of the President as was the case before. Personally, I hoped this would broaden democratic participation in judicial appointments and also hoped Zimbabweans would take advantage of it. This was and remains an OPPORTUNITY for Zimbabweans.
Now, the JSC recently announced that interviews would be conducted with 12 candidates who were nominated after its call for nominations in May. The JSC says those are the candidates who were nominated by the close of the nominations process. We do not know how many were nominated by the President and members of the public.
There has been a complaint to the JSC by Zimbabwe Women’s Lawyers Association (ZWLA), a civic organisation which represents female lawyers in Zimbabwe. The objection was that the list of candidates was not gender balanced. There are only two female candidates in the list of 12 candidates. It is apparent that there is a disproportionate representation of men on the list. “The list of candidates … is yet another unsettling reminder about the lack of equal participation of women …”
The JSC’s response to the ZWLA was that it had performed its constitutional function, which was to make a public call for the nomination of candidates and these were the candidates who had been nominated. It noted that ZWLA itself had not made any nomination, although it had an opportunity to do so, like other Zimbabweans.
ZWLA is right to raise the issue of under-representation of women on the bench and the list of nominations. As the organisation pointed out, the Constitution requires judicial appointments “to reflect broadly the diversity and gender composition of Zimbabwe”. We included this provision and made it mandatory specifically to promote diversity and gender balance in the judiciary. Clearly, a list of candidates with 10 men and 2 women is not going to achieve this diversity and balance. There is no guarantee that one or both of the female candidates will pass the interviews and get appointed. However, to the advantage of those two candidates, their chances are significantly enhanced given the constitutional imperative to promote gender parity. If they both fail, there will be only one female judge on the Constitutional Court bench, the current Deputy Chief Justice, Elizabeth Gwaunza.
ZWLA argued that “contrary to the provisions of the Constitution, “the results of the nomination process which culminated in the selection of the 12 candidates is skewed towards maintaining a majority male constituency in leadership rules within the judiciary”. ZWLA called for the JSC to “rectify the nomination process by calling for additional nominations which encourage the full participation of women lawyers in Zimbabwe …”.
The JSC responded by saying it had carried out its constitutional function to call for nominations for a period of one month and by the close of nominations it had received “12 valid nominations”. It argued that it had “expected the public, including organisations like ZWLA to nominate persons to be considered for appointment”. It also noted that ZWLA itself had not made any nomination. “We would have expected, if ZWLA was sincere in its quest to advocate for gender parity, to have participated in the month-long nomination process to ensure that women were afforded the opportunity to participate in the process”.
The JSC said it could not reopen the process after publication of the final list and in any event it was only six days before the interview dates (The JSC has now postponed the interviews to the end of September citing the need to comply with COVID19 regulations).
This situation is a perfect illustration of the problem of letting opportunities go when they are available for utilisation. While ZWLA is right to call on the JSC to do more to promote gender parity, the JSC is correct when it points to ZWLA’s failure to participate in the nomination process. ZWLA arrived on the scene to shut the stable doors after the horses had bolted. Why, it has to be asked, did an organisation which represents women lawyers fail to make a nomination when the public call was made? The JSC rightly made a public call as required by the Constitution. It was up to members of the public to submit nominations. That they did not do so cannot be the JSC’s fault. If a person came forward and said they made a nomination which the JSC excluded, that would be a different matter altogether.
What might be said of the JSC is that it could have done more beyond its call for nominations to educate members of the public concerning their right to nominate candidates. It could also have done more to encourage women to participate in the process actively. It could then argue that it took steps to comply with section 184 of the Constitution. It is also best practice in international organisations to include provisions which specifically encourage female candidates to take part in the application and nomination process whenever vacancies arise. In future, the JSC should adopt this approach given the institutional bias that already exists in state entities.
I have cited this situation not as a criticism of ZWLA or the JSC but as a call to Zimbabweans to take opportunities when they arise. I started by saying that when you are used to seeing threats, the danger is you may lose sight of opportunities. This was a great opportunity which went by without most Zimbabweans noticing it. However, it is by no means the only one. There have been numerous vacancies that have arisen in commissions, which also provide opportunities for public nominations. Only a few people participate in these processes. Many either have no clue or think they won’t make a difference. The result is that only the elites end up monopolising the processes.
What has happened with the Constitutional Court vacancies might seem unfair, but in truth, it’s a mess that we have created for ourselves because we have not taken our individual and collective responsibilities seriously. Before pointing the finger at others, we must pause and ask if we have done enough. There are organisations like the Women’s Coalition, which are well-funded by donors to represent the interests of women. They did not make a single nomination to the highest court in the country. But they will probably complain that women are being excluded. There are other organisations in the same boat. To reform, one must take responsibility for shortcomings. This is a major embarrassment for civil society organisations that failed to take leadership. If they don’t see it, and blame someone else, then there is a serious problem.
As a society there is a need for a revolution of mindsets; from being perennial victims to being able actors who can make choices and take opportunities when they are presented. Many wake up when horses have left the stables. Then we do what we know best: we complain. We don’t even own up to our shortcomings. In that regard, we have become specialists in moaning, when we are the ones who let opportunities pass. We must have a serious mindset change and it starts at the individual level by asking the question: What have I done? What am I doing? What can I do?