EDITORIAL COMMENT : We must think about judiciary upgrades

Zimbabwe is a society of laws, rather than some sort of anarchy where crime is defined by what someone does not like or by vigilante lynch mobs and where disputes are resolved by gunfights or gang warfare.

So we need a first class judicial system and judiciary. In criminal matters there must be defined offences, and these generally need something close to consensus in Parliament rather than scraping through by one vote on a division, and those accused can face an impartial court with the burden of proof beyond reasonable doubt being laid on the prosecution.

In civil matters, we need a trained and experienced judicial officer ready to apply the law and common sense to sort out the frequent personal and business disputes, from the mess that can arise in marital and other relationships to the sort of row that can so easily arise when businesses have differing ideas on what precisely was agreed and who was supposed to do what.

In both sides of judicial work we try and work on what is right, not on who has the might, so the innocent and the weak are as well protected as the strong.

When we come down to it, the most critical factor is finding the right people to preside over our courts, all the way from the most junior magistrate to the most senior judges in the Constitutional Court and the Chief Justice at the top of the pyramid.

Of course these judicial officers need support, from the clerks who keep the records, a decent record keeping system, the law libraries, and the like.

And the criminal system only works properly if there are quality prosecutors who can ensure that the police and other investigating authorities have assembled the evidence first, rather than rely on vague allegations, and can then present that evidence fairly.

Preferably those accused should have access to legal advice, although defence lawyers should be keener on shooting down the prosecution ducks rather than trying to work out ways to delay a trial until their client has died of old age.

In civil matters it is extremely helpful if there are a pair of decent lawyers who can get to the heart of the dispute rather than trying to flood a court with side issues or non-issues. In both sets of cases a presiding officer often needs to take a more active role, ensuing that an unrepresented accused understands what is going on and if necessary asking the questions to draw out that person’s story, regardless of the probability of the story.

In many of the nitty gritty civil matters, such as the disputes of child maintenance or debts, the court has to seek evidence not presented in the first hearing and again ask the right questions so that a fair decision can be made, since quite often at least one party in such matters is not represented and often both.

Generally our magistrates and judges do a good job. Almost everyone accepts their decisions, even if they dislike them, because they feel they have been given a fair shake and a fair hearing.

And this is one major reason why the number of judges and magistrates has grown so much in recent decades, simply because so many accept that they deserve their day in court rather than resort to extra-judicial action.

All this costs money, as Chief Justice Luke Malaba made clear when he opened the new court year this week.

He was speaking in his dual capacity. As Chief Justice, he is head of the judiciary, but he also heads the Judicial Service Commission, which administers the whole system and which ensures that everyone has practical, as well as theoretical access to the system, hence the opening of new courts at all levels across the country.

He made a very strong point that all the core costs at least had to come automatically from the budget. Some are already in that position.

Judges’ salaries and pensions, for example, are not subject to debate in Parliament during the budget process; they are, along with MPs’ salaries, part of the Constitutional and statutory provisions that must be paid long before the National Assembly argues about just how many paper clips a ministry is allowed to buy.

But magistrates, and they vastly outnumber judges doing the nitty gritty civil work at lower levels and handling almost all criminal cases short of murder, are in the budget.

The Chief Justice was worried that 18 quit last year, and that is in addition to the handful who were promoted or reassigned to other functions, or those who retired.

It takes time to train a magistrate and build up the experience they need so the longer they stay in post the better for everyone. While a fairly recent graduate can handle something straight forward like a minor traffic case or a drunken fight, we demand a fairly long spell of successful experience before we have the top layer, the regional magistrates, deciding the guilt of otherwise of an armed robber and setting the jail sentence.

There are appeal procedures, but if the lower courts do their work well the higher court just has to audit the trial, not go through what amounts to a retrial.

So we need to ensure that a really good magistrate is able to remain in service, rather than having to escape into private practice for financial reasons, remembering that while some private lawyers struggle to earn a living a highly-competent and experienced law officer can probably do rather well.

Chief Justice Malaba was concerned that some of the judiciary’s expenses were carried by development partners, and he felt that to ensure the appearance, as well as the fact, of judicial independence all costs should be paid out of Zimbabwean taxes.

That is a strong argument. As a matter of practicality we doubt if many people would object to certain donor support.

If someone wanted to donate a basic law library to the new court complex in Chinhoyi, for example, this could not be misconstrued as interfering in Zimbabwean justice.

But there are a lot of grey areas. We certainly need a decent public defenders’ office, or the equivalent, for example, but the costs do need to be Zimbabwean rather than having defenders feeling they need to serve a foreign donor. And there are many other examples.

After every budget every ministry, department and unit in the State complains that their requirements were not met. This is natural as the Treasury has to balance what we pay in taxes with what people want to spend.

But for the head of the judiciary to go public with his concerns on what amounts to a State occasion, means that the stresses are higher than we might assume. And in the judiciary we need the best lawyers running the show to make the system work the way we want it work. That is what the Chief Justice was stressing.