Of judges and their dress codes

Sharon Hofisi Legal Letters
In one meeting, a renowned judge told lawyers to dress with the times. His daughter, a millennial child, would always ask him to buy her some fancy clothes. The daughter is also one with the gift of gab.

The judge would in vain go to his old trunk. He would open it up and show his lovely daughter some of his old shoes. “Look, my daughter, this is how life used to be for me!” She would look at him and wisely remark, “Father, or to use our language, Dad, I did not grow up with you. I need to get new shoes!”

Obligingly, the judge would lock up his trunk and open his wallet. Believe you me, we may not rash to condemn judges for dressing in a manner we think is “improper” from a Zimbabwean perspective.

Well, Periwigs or simply wigs, had been worn since 1680. Lawyers and judges were simply following the fashion of their day. To some, they were a symbol of privilege. They conferred dignity and solemnity on court proceedings. On a comparative level, this think piece considers developments in the United Kingdom, from whence the dressing came. Judges in that country have relaxed the ways in which they wear robes and head dresses.

Some judges wear black silk gowns and a short wig. Those who deal with criminal cases at first instance in winter are said to wear scarlet robes, but without the scarlet cloth and fur mantle. When in summer, they wear all of the above. The dressing is largely ceremonial in nature. Most countries have battled to get rid of some aspects such as wigs. Some countries have voted in this regard. The majority voted in favour of the dressing.

In all this, the role of a judge is perhaps the most important factor to consider in any society. In the life of a judge, one finds, or at the very least, expects to find, next to the clergy, or ahead of legislators, perhaps the most decorous form of dressing. The ethic involving a judge, his or her virtues, dressing and dealings with society is doubtlessly incalculable in scope. This article concentrates on the importance of the gowns and head dresses which are worn by our judges.

There is no doubt that the dressing represents the vestiges of colonialism. But a pertinent question that must be raised at the very outset is: why get involved with the manner of dressing of judges? He or she is simply a public official whose duty it is to administer the law. He can decide the fate of someone or something in a suit, or in a robe. He is a case and court manager. He is appointed to preside over trials and other cases.

Some, who follow deific law, would actually argue that he represents the Godhead. In one Holy Book, a prophet called Isaiah had a vision where his deity, Yahweh, was wearing a robe, which filled the temple. He was seated on a throne. Fast track the biblical clock to the time of the Apostle Paul, certain office bearers were not allowed to cover their heads at liturgical assemblies. Without being prescriptive, this article is presented by a lawyer, engaged in what may be called legal or academic research.

The whole purpose is to stimulate debate on institutional practices. There is no attempt made to impose any of the views of the writer on the readers or institutions concerned. One avid reader of my articles simply asked me to write on the head dresses and robes of judges. Obligingly I have done so.

Basically, public debates on issues that deal with State institutions are made because they provide useful insights on the “ought to be” of such institutions. From the standpoint of public discourse, State institutions derive their powers from the people. Put differently, debates on the dress code of judges are important because even the dressing of a justice implies the giving of some dress code by the public: at the very least, the expected dressing of a justice.

The public can decide to have the dress code revised or maintained. They can do so through their representatives in Parliament or by registering their needs through various media platforms. At a philosophical level, a sound theory of judicial decision-making can be derived from a judge’s clothing. It has been observed by this author that judges, who handle criminal cases usually put on scarlet or red gowns. This holds true for judges who deal with criminal trials and criminal appeals in Zimbabwe.

Is this because red epitomises danger? Can it be said that judges who deal with criminals use the colour red to attain a given end? As such, they, at a philosophic level, understand that a given end is as important as the end itself? This think piece shows first, that Zimbabwean judges usually dress in robes and head gears when they are in open court. They usually wear their ordinary clothes when they are meeting lawyers or disputants in their chambers.

Theoretically, we can rush to condemn their dressing as inappropriate or as part of a colonial relic. Realistically though, we may also be condemned on the basis that specific cultures absorb and assimilate certain practices from other cultures. Illustratively, professional culture can include arguments on how certain professionals would want to dress. Zimbabwean judges have their own Code of Conduct.

Their Code does not speak on the need to avoid certain dress forms on the basis that they are colonial relics. Zimbabwe had a certain historical period where animal skins were the preferred form of dressing. This was an era when traditional leaders, who adjudicated on various societal disputes, would generally and apparently make it a point that certain animal skins would not be worn by ordinary people.

The kings, who doubled up as judges or decision-makers, used skins of lions and leopards to decorate their houses. They also used the robes to communicate with their sky-gods and the creator. In terms of a time perspective, such was the spirit of those times. Because Zimbabwe is a tiny sovereign part of the global system, legitimate trade then gave Zimbabwean legs a foot in the door for getting suits, shoes, hats, and other forms of dressing.

By comparison, this author, having chosen the legal profession, does not know how to treat animal skins. But he lives on Zimbabwean soil. In a sense, most Zimbabweans are all wearing designer suits or general clothes that are manufactured from other parts of the world.

However, in another sense, judges are closer to pillars of the State such as the Legislature. The legislature can take action, such as making a law on the dress code of judges and parliamentarians. The important question in that regard would be: What impact would changing a judge’s dress code have on his or her decision-making powers? Can life fade or burn rapidly after the change?

Is it not correct that judges in Zimbabwe, just like judges, and every citizen in former British colonies, are perhaps closer to the British in a cultural sense than we are to what is “strictly” Zimbabwean culture?

In making an examination of the dress code of a judge, let us first look at our common dressing as Zimbabweans and our views on traditional dressing, and note the particularities of our age.

This will enable us not to engage in debates that amount to what can be called “high-sounding nothing” discourses. We have lived in an era, the 21st century, where judges have had the opportunity to deal with issues that relate to dress codes for other people. Pupils have been allowed to wear dreadlocks on the basis of their religious convictions.

One famous labour lawyer fought a legal system that sought to prevent him from practising law on the basis that he wore dreadlocks. His good fight saw him being considered to be a fit and proper person to practise law. He has successfully mounted arguments relating to his own convictions on dressing. Some judges are particular on how lawyers, their clients or witnesses, should dress. Sometimes, it is natural for a lawyer to think that a particular judge may be playing to the gallery by insisting on the need for a necktie for a witness.

Some will go an extra mile and demand that a lawyer must have “court shoes”, whatever that means. Some insist that a male lawyer must not put on a jabot made for female lawyers and vice versa. The judge does not even want to think that the jabot was made for the lawyer and not the lawyer for the jabot.

It was just a mere cascading or ornamental frill down the front of a blouse or shirt. It served to beautify or ornament the shirt. Believably, those who do not have passion for fashion should not be forced to wear them. Most importantly, it is not uncommon for lawyers to use the same gowns that they wore on their graduation. Argument may then be made to the fact that there is no benefit in putting on a jabot on something old. To employ biblical language, we will be putting a new garment to an old garment.

Lawyers were paid to talk. They could overdo the talking as men or women with the gift of gab. It has been argued that they realised that they needed to have a tool to use to clean their talk relics in a manner that would not irritate the Bench or court: the jabot. There was no need for a handkerchief. Practically, it has been said that the best lawyers know the judge. It does not make business sense to waste time arguing with a judge who wants lawyers to put on a white shirt, a jabot, suit made of dark colours, and flat shoes.

After all, he is the court and case manager. The lawyer spends the rest of his time appearing before the concerned judge. Clients come and go. They expect results and cannot easily forget the admonitions of a judge. Worse still, admonitions related to inappropriate dressing, directed at their legal representative.

Institutions such as the Judicial Service Commission can also come up with its own ways. A judge on circuit can choose not to wear certain robes. Alternatively, at an institutional level, judges of the superior courts may come up with different forms of dressing.

Consider this: Magistrates in hot areas cannot be expected to wear gowns. Prosecutors and lawyers in such areas cannot be forced to wear suits and neckties simply. Even views such as gradualism and uniformitarianism will cry at their loudest if such court officials were forced to “dress properly” in suits and neck ties.