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Chamisa, judiciary heavily compromised?

21 Oct 2020 at 12:48hrs | Views
The way most of our judges are keen to try their cases in the press and on twitter shows that they angling for a a public interview for their promotion. As a result they disobey the Chief Justice and show a middle finger to seniority on the bench. The Principles on the Accountability of and the Relationship between the Three Branches of Government, they demonstrated continuing Zimbabwean commitment to advancing respect for the separation of powers including judicial independence, and a collective determination to raise levels of practical observance.

Zimbabwe can be justifiably proud of being one of the African countries with a consolidated set of principles governing the relation between the three branches of government. Covering subjects such as the harmonious balancing of power between the three branches, and how they should interact in the kind of democratic space which the Zimbabwe seeks to uphold, the Principles stipulate that there should be restraint in the exercise of power within each respective sphere in order not to encroach upon the legitimate discharge of constitutional functions by others.
This Compendium on the appointment, tenure and removal of judges outlines the various constitutional arrangements. It also indicates best practice in the appointment, security of tenure, and removal of judges.

The events in the past two years have shown that the appointment of judges should be reviewed.
The policy on High court judges recruitment needs an urgent review as leaving the status quo is a real threat to existence of democracy.

While the world looks and always accuse judges to be partisan and favour the state very little about judges favouring the opposition as to compromise their dignity. The current spat in misdemeanor  by some of the superior court judges and suspensions and dismissal it is clear demonstsation that there is a gap in the whole process which may result in real threat to the existence of not only democracy but the much cried for independence of the judiciary. Whlst superior court judicial officers are not civil servants  but they serve in a similar capacity  as public officers. Civil servants have a different way of conducting themselves  both in and out of work.

The problem which Zimbabwe has to address without prejudice is the congested bench with private practitioners. Most judges who were taken from the private practice have no allegiance to the state. Their motivation is the packages which come with the office of the judge of the high court.  
A distinct line should be drawn between a civil servant judge and a private practice judge. To be a civil servant  it just doesn't happen  but a takes a real calling  to be there. Civil servants have all the qualifications their counterparts in the private sector have. The difference is a Civil Servant is not motivated by money but by the love of his work.  A calling is when someone is strongly attracted to, especially one which involves helping other people. a strong inner impulse toward a particular course of action especially when accompanied by conviction of divine influence. A civil servant has
a strong urge towards a particular way of life or career; a vocation."those who have a special calling to minister to others' needs"

Zimbabwe has qualified and highly competent lawyers who could be making millions  of dollars in private practice but because of the calling to serve the public most of them die poor despite the potential. These are the ones who remain prosecutors despite being labelled corrupt.
The dream of every lawyer is to make the law while interpreting it. This is done when you become a judge. So It is every lawyer's dream to grace the superior courts , The system Zimbabwe uses to recruit judges is meant to discriminate against civil servants. Civil servants spend their life doing one branch of law, that is prosecution for example. When interviews come they are asked questions about the fields they did not practice. The scales tilts to the opponents who are in private practice who do not know what is it to sacrifice. They have put their hands in every aspect of law albeit for money. When it comes time for interviews they are better equipped than their counterparts. As a result they never pass the second stage of public interviews despite the commitment they have shown in their career. Because of this uneven ground mos government lawyers  see this dream of gracing the superior courts blow off through the window as most of these  post are given to private practising lawyers  most whom will have made their wealth  and now want to enjoy the comfort of security  and luxurious cars that go with the package.

Appointing a private lawyer to the superior bench to him or her is not an achievement  but a retiring gateway. While appointing  a government lawyer  or magistrate is a great achievement and will always want to showcase their talent  and feel proud to serve the public at high level of the judiciary.  The government law officers are always disadvantaged and the bench is filled with those who charge their time in monetary terms.

The government law officers knows how to deliver justice for no monetary motivation. The biggest  advantage is their culture of being acquainted with government policy as opposed to those who come in with a bullish attitude and totally misguided mindeset of what judicial independence stands for and who should benefit from it.
Zimbabwe is cursed by judges who act lawyers on the bench. They view prosecution and the state as an enemy thus opposing every application the state makes.  The bad judgements Zimbabwe is faced with is mostly from judges who entered the bench to punish the state.

Any lawyer worthy  his or her salt is aware of what effects can arise from superior courts judgments on the existence of government of the day.

The judges who are fished from the other side of the bar have a combative, aggressive and indeed confrontational attitude. This is from years of practice as a lawyer in private practice.  Why all of a suddenly there is so much indiscipline from that side of the bench.

While the dark cloud is not spread over the private practitioners but it is said that the pendulum stops on one side. Granted there are a lot of judges from private practice who are hard workers and they are not rebellious.  

Most judges who cross path with their own managers have a strong feeling that they are right. But we should appreciate that those who are inclined to guard government policy  jealously at the same time observing judicial independence are the ones who understand government policy. Judicial independence is not about working against the government of the day but observing  government policy  and in the best interest  of the country and its people  without compromising  its independence. In the same vein the question is whether or not the public interviews are necessary for a judge in the superior courts or that the head of state should appoint.We only have one Zimbabwe  and we need to guard it jealously like other developed democracies do.The current constitution was a result of compromising on many aspects  and needs review on such.Admitedly is a good constitution but it has some areas of concern.

It should be noted that the government lawyers will make better  judges as demonstrated by some who are already there.
The head of state working in conjunction with the appointing board must be allowed to appoint judges.

Election of judges provides too much opportunity for influence and conflicts of interest. Public interviews makes judges play to the gallery more than they can play to the law.

 Appointments are political anyways but there are always scales used in appointments.
 Elections and public interviews are highly charged politically,  than an appointment. with a public interview there are "behind the scenes" influences.

 Judges should be independent and should not have to run for election. We have a code of ethics and are limited by what we can and can't say. We can't make promises and can't prejudge a case, often what those seeking political office do. Running for election and preparing for a public interview takes time away from doing what judges are being paid to do - be fair and impartial judges, rule on cases in a timely manner, and not be swayed by public opinion - in essence be an independent judiciary.

Nudges must be aware of  influences which includes the extent to which a culture of the rule of law pervades branches of the state and the wider public; the competence and independence of the wider legal profession; the provision of legal educa- tion and judicial training; efforts to ensure equality of opportunity and a pool of applicants for judicial office that broadly reflects the society; the resourcing of the justice system and settled understandings about the appropriate interaction between judges, elected politicians and the media; appropriate legal immunities for judges when performing their judicial functions; and, a balance between institutional autonomy and the protec- tion of the independence of individual judges. A truly democratic spirit also has to inform the letter of the rules.

Zimbabwe believes in the rule of law as an essential protection for the people of Zimbabwe and those under its protection, and as an assurance of limited and accountable government. Appointed judges support an independent, impartial, honest and competent judi- ciary and recognise that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice. Judges rightfully deserve praise for their public service and commitment to the pursuit of justice.

Judges should never be subjected to public scrutiny. Under these circumstances, it only makes sense that judges are motivated to raise contributions and seek the approval of public. While such steps appear innocuous, they can lead to campaigns and interest groups engaging in mudslinging, and occasionally result in a judge who weighs decisions on a political balance or just to please the public. Along with its negative effects on judicial fairness, public interviews of judges can also weaken an area's economy. Globalization and technological progress now allow capital to cross borders with unprecedented ease. The slightest red flag can encourage investors to take their business elsewhere.

In one survey, seven out of 10 companies reported that a state's litigation climate is likely to impact important business decisions, such as where to locate. To safeguard neutrality on the bench, the state should move from public interview to appointing judges – specifically, through nonpartisan commissions that select judges based on merit. These commissions, which are already in place in the form of JSC recruit and recommend eligible nominees for judicial appointments. Dispersing power to appoint members of the commission across a variety of groups – the legislators from both parties strengthens the commission's independence.Appointment-based systems better serve their purpose when complemented by evaluation commissions.

It is indeed a high time that Zimbabwe considers going back to appointment system and not this public interview.

Source - Dr Masimba Mavaza
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