by Augustine Deke, Zimbabwe, September 1997
THEME = JUSTICE
Since Independence in 1980, there have been 14 amendments made to Zimbabwe's Constitution. In all but one of these amendments, Zimbabweans were not consulted. Obviously, a situation which could not be allowed to continue. In early 1997, citizens formed the National Constitutional Assembly (NACOASS), with the task of educating the nation in its rights as contained in the Constitution. NACOASS' main concern is for Zimbabweans to have a say in how the Constitution is interpreted. Citizens are extremely concerned by what takes place in "high places". Top-level decisions are made by the ruling ZANU-PF, then adopted by Mugabe's cabinet, and finally rubber-stamped by Parliament.
With the above unsatisfactory situation as background, let's take a look at the country's judiciary. Zimbabwe has five Supreme Court Judges, two of whom are women. The High Court has 25 judges. There are 300 magistrates serving in the Public Service. Those who wish to enter the judicial service have to obtain a Law Degree at the University of Zimbabwe, or graduate from the Judicial College of Zimbabwe. This Judicial College was established by the British Government which still sponsors the legal training offered there.
The Judicial College course for future magistrates, consists of an 18 months' theoretical course, plus one year's in-service training. Having graduated, magistrates apply to the Public Service for employment. If they are accepted, the Public Service then places them under the Ministry of Justice. They are then classified as Civil Servants.
To become a judge, one has to have at least seven years in practice within the legal profession. Appointments are made by President Mugabe after consultation with the Judicial Service Commission (JSC), as stipulated by Section 84 of the Constitution. (The Judicial Service Commission is also appointed by the President!)
Lawyers have their own association called The Law Society of Zimbabwe (LSZ). The Judicial Service Commission (JSC) operates independently from the Ministry of Justice, and consists of the Chief Justice, the Chairman of the Public Service Commission (PSC), the Attorney-General, and not more than three judges who are presently serving with, or who have served as judges in the High Court or the Supreme Court.
Magistrates, being civil servants, serve "at the pleasure" of the PSC. Their starting salary is very meagre, and this results in many leaving the Public Service to serve as lawyers in private law firms. One magistrate says: "Our salaries are next-to-nothing, when seen against the amount of work we have to get through. I'm not surprised if some of us accept bribes so as to make ends meet". Magistrates can be hired or fired at will.
On the other hand, judges are well paid, out of the Consolidated Revenue Fund (CRF). This is in line with section 88 of Zimbabwe's Constitution. Judges' retirement-age is given as 65. Circumstances can dictate "premature" retirement.
On paper, citizens' rights would appear to be well-protected by the law. Before arresting anyone, the police must obtain a warrant from a magistrate. Citizens who are wrongfully arrested, are entitled to sue the police or claim compensation from the government. After arrest, the accused must be produced in court, the next day the court is in session. If the prosecutor is not ready with the case, the magistrate is asked to grant a remand. A citizen can initially be held for only 48 hours. After that, a further warrant must be obtained.
An accused person is allowed to consult a lawyer without delay before making a statement, and must be given enough time with his lawyer to prepare his defence. The accused's lawyer must be informed of the date when his client has to appear in court. If the accused cannot afford a lawyer, the State will provide legal aid depending on the seriousness of the case.
Bail is given on three conditions: 1) If the offense is not too serious; 2) If it is safe to presume that the accused will not interfere with witnesses; 3) If it is safe to presume that the accused will not abscond. Free bail is only granted, when the accused has no money to act as guarantor for his court appearance. Bail is usually denied when the offense is against the State, or for other serious offenses such as rape, murder, robbery or assault.
To educate the population-at-large in matters pertaining to the law and their rights, the government has established the Legal Resources Foundation, which provides free information and advice.
But, it is unclear if the judiciary is truly independent. Though Zimbabweans are given to believe that no one is above the law, the Constitution grants presidential immunity to the sitting President in certain cases, thus placing the President above the Law.
The President is not personally responsible for any civil or criminal offense committed whilst in office (Section 30 (1)). He can grant pardon over any decision made by the Supreme Court or any other Court. He is empowered: to suspend the execution of a sentence for any period; to substitute a sentence with a lesser sentence; to suspend a sentence; to grant pardon.
President Mugabe is certainly not averse to using his presidential powers granted under the Constitution. Let's look at some examples: Surprisingly, he pardoned Member of Parliament Frederick Shava from going to jail in the late 1980s for the Willovale car scandal. During Zimbabwe's 2nd national elections in 1990, Mugabe's Central Intelligence operatives, Mr Kanengoni and Mr Chivamba, shot and wounded Patrick Kombayi of the opposition Zimbabwe Unity Movement (ZUM). Mugabe pardoned those responsible for the shooting.
In April 1996, Mugabe's government illegally used public funds held in Trust by the Magistrate's Court. The money in the funds [Temporary Deposit Accounts (TD)] was used to fund the presidential election. (Note: Temporary Deposit Accounts are Trust Funds operated and administered by Magistrates Courts and the High Court. The accounts contain money for fines, bail, maintenance, widows and a guardian fund for orphans). Despite calls by the Law Society of Zimbabwe for the scandal to be investigated, nothing has yet happened.
As already mentioned, Judges are appointed by the President after consultation with the Judicial Service Commission (JSC), and it is the President who appoints the JSC. So, what price an independent judiciary!
In preparing this article, magistrates and former magistrates were interviewed. They all asked to remain anonymous for fear of losing their jobs. "Remember, we have the Courts and Adjudication Authorities (Public Restrictions) Act (number 25 of 1995), restricting the publication of proceedings of courts and adjudicating authorities. If we breach that, we are fired", said one magistrate.
The government has promised magistrates that they will be able to operate as an independent body. That promise is far from being achieved.
The evidence speaks for itself!
END