Judges Beholden to No Man

“It is wrong by any measure to make the judiciary beg for its sustenance,” said Mrs. Justice Makarau, Judge President of the High Court of Zimbabwe during the opening ceremony of the judicial year on the 15th January, 2007.

No, it is wrong my Lady for any person to beg for their sustenance.

The poor funding of the Judiciary in Zimbabwe has been a matter for concern for many years now. The judges have always been poorly paid. The visible opulence of the official Mercedes Benz has over the years hidden the underlying poverty that afflicts those who sit at the top of the judicial order. The poor conditions of the Magistrates have always been there for all to see. With it corrupt practices emerged to subsidise the livelihood of some of the judicial officers. Bail, urgent hassle-free civil marriages, acquittals, disappearance of records and lighter sentences have been peddled by the rotten apples in the Magistracy for years now.

It is a sad fact that many lawyers who qualified for judicial office declined appointment simply because they could not expose their families and dependants to the poor rewards of judicial office, despite its obvious status. This has adversely affected the general quality and broadness of the appointments.

Traditionally, judicial office at the higher levels was taken by those who, among the big pool of lawyers in academia, private practice, public service, Magistracy at the Bar and in commerce, have achieved great success in the practice of law. With the long successful practice would have come financial reward. A judge would be expected to own a house in one of the country’s leafy suburbs, have a reasonably comfortable car or two, and afford several other pleasures of life. The times have long changed. The story of the recent judicial appointees lamenting their lack of accommodation and motor vehicles was well-publicised. While their colleagues without houses were staying in State houses across the low density suburbs of Harare, the new appointees were forced to live in areas unbefitting judicial officers. Their circumstances became an embarrassing episode when revealed in the Press.

Few of the judges who sit in the High Court and Supreme Court of Zimbabwe have simple tools of trade like personal computers, access to email, access to the Internet, and access to modern up-to-date libraries. They do not have qualified law clerks to assist them in their duties. All they have are court orderlies.

They also have to rely on a common pool of typists to get anything written from their office. They cannot access electronic libraries that are freely available in the web space- a standard requirement for research in the modern practice of law. The judicial libraries are supposed to be the most equipped, with the necessary tools for research, books and computers. The High Court Judges’ libraries now represent a cross between the National Archives and the National Museum. The circumstances of the Judiciary have always been there for all to see.
It is therefore with a pinch of sea salt that I read the assurances by the Acting Minister of Justice Mangwana in the Herald of the 19th January 2007 that a liaison committee was to be set up to deal with urgent matters raised by Justice Makarau.

To begin with, the composition of the liaison committee is totally wrong. The Attorney General has no business discussing the financial resources of the Judiciary as he is a party to matters involving the state before the same courts. The Attorney General is busy trying to get resources to arrest the brain-drain in his own office. Further, the Judiciary is not a department of the Ministry of Justice. No. It is the third pillar of the State with its specific constitutional responsibilities and powers. It is supposed to be independent, fair and impartial. It should not in its discharge of its duties, be subject to any pressure, whether political, physical or financial
The Chief Justice as the head of the Judiciary would be in frequent contact with the chief accounting officer in the Ministry of Justice, the Permanent Secretary Mr Mangota. Mr Mangota should be aware of the concerns of the judiciary. The responsibility of the Executive is to simply “show the judges the money!” They do not ask for much more or much less.

Financial and administrative autonomy of the courts
Minister Mangwana is quoted in the same article as saying that, “there is also separation of powers between the executive and judiciary and justice is being delivered everyday.”
Sadly, the separation of powers means nothing on the practical or theoretical level if one arm has to beg the other arm of government for its sustenance. How independent can an indigent court be? As we say in Shona, “murombo haarovi chinenguwo”.

The Government is under obligation in terms of the United Nations Basic Principles of the Independence of the Judiciary to provide the Judiciary with adequate resources to enable it to properly perform its functions. This means that the Government must provide adequate remuneration, well-funded libraries, and proper judges’ chambers with adequate facilities, computers, printers, working recorders and transcribing machines, etc.

The Judicial Budget
The current budgeting system puts the Judiciary under the control of the Ministry of Justice and threatens the independence of the Courts. It is imperative that the Judiciary be able to present its budget to the Executive and receive the necessary funding which the Judiciary itself would control without the interference of the Ministry of Justice.

The size of the budget can be determined by setting the minimum amount as a percentage of the national budget or be an amount arrived and justified by the Judiciary in its budget proposals.

The Ministry of Finance would be required to present the budget proposal before Parliament without amendment. The Chief Justice should if necessary be allowed to justify or motivate the budget before Parliament. Once the budget is passed, the Chief Justice should be able to deal with it and account for it independently without interference from the Ministry of Justice. The Judiciary should be able to administer their court system, allocate resources and spend on equipment without the need for intervention by the Ministry. The office of the Registrar should have the necessary support staff qualified in accountancy, audit, information technology, human resources and administration in order that the courts can function effectively.

In Uganda, the independence and autonomy of the Judiciary is guaranteed in their 1995 Constitution. The expenses of the Judiciary are charged on the Consolidated Fund, the Judiciary is self-accounting and can deal directly with the Ministry of Finance on its funds and does not need the involvement of the Ministry of Justice to access funds.

Conclusion
It is only when the Courts are independent both in the theoretical and practical sense that the true independence of the Judiciary is guaranteed. Parties can be guaranteed that the judges before whom they appear are under no financial pressure in matters involving private citizens or the State. Only an efficient and well-resourced Judiciary can discharge its Constitutional mandate. With this, the Courts can hold its circuit courts and try 104 murder cases in Masvingo, uproot corrupt tendencies, attract and retain qualified staff and ultimately restore public confidence in the justice delivery system.

It is my fervent hope that a more serious and urgent approach will be adopted to deal with the problems afflicting the Judiciary in Zimbabwe. If not, Justice Makarau may have to break the tradition of speaking on the difficulties and indigence of the Judiciary on a more frequent basis. As we would say in Shona, Judge “vasingachemi vanofira mumbereko!” (A child that will not cry will die on its mother’s back!)

POSTSCRIPT
After this article was finalised, it was widely reported in the Press in Zimbabwe that Judges of the High Court and Supreme Court had received laptops, personal computers (PCs) and 4x4 double cab trucks from the Reserve Bank of Zimbabwe. This was facilitated by the Governor Gideon Gono.

This act is in clear breach of the Constitution of Zimbabwe which states that:

S 88(1) “There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament”

It is a Constitutional requirement that all payments to judges are made from the Consolidated Revenue Fund (Treasury) through transparent means such as an Act of Parliament in order to protect them from being compromised by payments from sources that may compromise their impartiality and independence, thereby threatening the delivery of Justice. The Reserve Bank, being a frequent litigant before the courts should never be allowed to compromise judges!