Judicial appointments Process Needs Reform

Judicial Appointments Process Needs Reform
By Tererai R. Mafukidze
The need to reform the Judiciary in general and the appointment, promotion and performance requirements in particular, has been palpable for many years. But the desire to create a strong and independent judiciary has always been lacking. The foundation of any democratic state lies on having a solid and democratic constitution supported by independent and credible institutions. The challenge that remains is for us to chart a new path through the new constitution to ensure that no individual, group or interest enjoys unfettered power to appoint and promote judicial officers at will. The appointment process must ensure that only those possessing the required legal skills and competency, undoubted integrity and solemn commitment to the protection of human rights, efficient delivery of justice and promotion of the rule of law.
Best Practices: Examples from the Region
The best practice in the appointment of judges in my view is provided for under the South African Constitution. Of course, like any beautifully written constitution, its fate lies with the integrity of persons who are given responsibilities under it. But it has aptly foreseen and averted some of the many problems that have been brought to light by the recent appointments and promotions.
In terms of the South African Constitution, the President appoints the Chief Justice and Deputy Chief Justice after consulting the Judicial Service Commission (JSC) and leaders of political parties represented in Parliament. Before appointment of a judge to the SA Constitutional Court, the JSC submits a list of nominees to the President. The list must contain three more names than the number of appointments to be made. The President must then appoint the judges from the list after consulting the Chief Justice and the leaders of political parties represented in Parliament.
Where the President is unhappy with the nominees and is unable to fill all the vacancies existing from the list, he is required to advise the JSC with reasons why the nominees are unacceptable. The President is required to provide reasons as a protection against abuse of power. The President may not for example state that some of the candidates are not suitable because they have been members of an opposition party. The Constitution provides that any ‘appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer’ and that ‘[T]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ An additional requirement for South African citizenship applies to appointments to the Constitutional Court.
In the event that the President decides against filling all the vacancies from the initial list, the JSC is required to supplement the names and return the supplemented list to the President. The President is required to make the outstanding appointments from the new list. He cannot send it back again.
And so, the President’s objections are limited by the required qualifications. More importantly he may only have one bite at the objection process.
The President appoints the President and Deputy President of the Supreme Court of Appeal after consulting the JSC. The Supreme Court of Appeal is the second highest court and virtually the highest in matters that are not constitutional. With regards to the appointment of all other judges including judges of the High Court, the President appoints on the advice of the JSC.
In Lesotho, for example, ordinary judges are appointed by the King ‘acting in accordance with the advice of the Judicial Service Commission’. As regards appeal court judges, the appointments are made by the King ‘acting in accordance with the advice of the Judicial Service Commission after consultation with the President (of the court)’. The provisions clearly make a difference between mere consultation and ‘acting on advice’ of a body such a JSC.
In Malawi, the appointment of the Chief Justice by the President requires approval by two-thirds of Parliament. In Uganda, the President appoints all judges acting on the advice of the Judicial Service Commission. But the appointments must be approved by Parliament.
In South Africa, when the President appoints heads and deputy heads of the country’s highest courts, he is required to consult first before he makes his decision. With regards to other appointments, he must act on the advice of the JSC. In fact, with regards to all other judicial appointments the President cannot even motivate the appointment of certain persons to be judges. The JSC has to generate the nominations to him.
This is clearly different from our current situation in Zimbabwe where the President himself (or as suspected through his political agents) nominates judges and appoints them irrespective of the advice of the JSC.
Publicity of Vacancies and Public Interviews
The practice in South Africa is that whenever there are vacancies, the JSC announces the existence of vacancies publicly. Malawi and Botswana have in the recent past advertised judicial positions. In Zimbabwe we often learn of existence of vacancies through the news of swearing-in of new judges. It is said that the Minister of Justice in fact approaches potential candidates. Claims by one lawyer that he was approached and offered judgeship on condition that he would rule in favour of the State were made a few years ago. Notwithstanding the denials, the opaque nature of approaches and the appointments sully the process.
The South African vacancy notice states that the interviews will be public and that members of the public and the media will be entitled to be present. The notice also states that any persons or bodies nominating a candidate can motivate their appointment by referring the JSC to the candidates’ qualifications and general fitness for appointment. The candidates are also advised that they may seek a ‘clearance certificate’ from their relevant professional body (e.g. Law Society or Bar Council) confirming their good standing. In Zimbabwe, there are no public interviews. I doubt even private ones take place. The JSC seems to receive a fait accompli.
For those who are already judges and are seeking promotion public interviews are also applied. In addition, in their nomination papers, they are required to justify and motivate appointment through their academic record, record of publications, reported judgements, significant decisions, record on appeal, record of reserved judgments and promptness with regards to delivery of judgments. They are also required to indicate their most significant contribution to the law and the pursuit of justice. This process ensures that those who may have been appointed before do not automatically qualify for further elevation unless they have shown great performance in their current office. This ensures that only those judges who perform well at the High Court deserve further elevation. It also ensures that judges are not promoted against their will!
For those seeking their first appointment to judicial office, their motivations must indicate academic record, areas of interest in the law, publications (and whether cited or not), frequency of court appearance, variety of legal work, most significant cases appeared in, community involvement, most significant contribution to South African law, disciplinary and criminal record, among others.
In Uganda, they have articulated in their Constitution the specific requirements for judicial office. The Chief Justice must be a person who has either been sitting at the Supreme Court for 20 years or has practised as an advocate for that long. Relatively strenuous periods of qualification are set out for other judicial officers.
While these nominal qualifications seem to hold, there is need to spell out additional qualities expected of judicial officers.
No such vetting process seems to happen in Zimbabwe before the President sends his names of proposed candidates to the JSC, though I have heard of visits to rural villages of proposed candidates by intelligence agents prior to appointment.
The nomination process and the interviews of those who are short-listed provide the opportunity for the public, interested professional bodies and JSC to examine the qualification of the candidates, their performance in their respective careers and their suitability for judicial office. The tragedy with the process in Zimbabwe is that the nominations come from the Executive via the President. He is not required to go through any process in assessing suitability. He consults the JSC but against their advice can still go ahead with the appointment or promotion. The President is not bound by the advice of a body that should in theory have greater knowledge and expertise with regards to assessing judicial suitability and performance.
This is indeed a tragic set of circumstances.
CONCLUSION
It is recommended that the opportunity, confusing, heart-rending and discredited as it is, provided by the current constitution-making process allows us to look at the manner in which judges have conducted themselves, how they have been appointed and promoted, how they have lacked independence and impartiality, how they have taken years to deliver judgments and ensure that necessary and urgent reform is undertaken. The composition of the JSC itself needs to be reviewed so that it does not become a proxy for political interests. To keep the system operating as it has will ensure that the judges we have in our courts remain subject to political interference, remain unaccountable and indeed become unaccountable charlatans of the political ruling class.

Tererai Mafukidze is a lawyer

Free Access to Law, Open Justice and the Right to Privacy

“FREE ACCESS TO LAW, OPEN JUSTICE AND THE RIGHT TO PRIVACY”
BY TERERAI R. MAFUKIDZE, CO-ORDINATOR OF THE SOUTHERN AFRICAN JUDGES COMMISSION
A paper presented at the Law Society of Zimbabwe Summer School held at Troutbeck Inn, Nyanga, Zimbabwe from the 8th to the 11 November 2007



















It was once so desperate for the Court of Appeal of England and Wales to distribute a judgment that clarified a point of procedure that had caused a lot of confusion countrywide that it opened its 1997 judgment with this wish;

“The text of this judgment is to be made available immediately on the Internet. If this country was in the same happy position as Australia, where the administration of the law is benefiting from the pioneering enterprise of Australian Legal Information Institute (AUSTLII), we would have been able to make this judgment immediately available in electronic form to every judge and practitioner in the country without the burdensome costs that distribution of hard copies would necessarily impose ...." [1]

I must hasten to add that within the next four years, BAILII[2] (British and Irish Legal Information Institute) was formed to publish judgments freely on the Internet. Just two weeks ago, the Irish and British approached the family of LIIs at the Montreal conference[3] to request that the Irish form their own LII. The request was immediately granted. We were all blissfully surprised that the Irish and British had managed to co-operate for these 7 long years.
It should be a matter of great concern to all lawyers, judges, magistrates and legislators that the assumption that the law is known to all citizens continues to be made without the corresponding responsibility to truly make the law available to the citizenry. It is a matter of convenience if not outright fraud to work on the presumption that the knowledge of the law is universal when we are all too aware knowledge of the law cannot be presumed even amongst a gathering of lawyers.
I do not believe that there are souls, let alone amongst you my learned friends who would have the courage to open the centuries old volume of Grotius during a consultation, and let alone argument in court. We have assumed that the common law from these sources has gracefully found its way out of the big books or corpus iuiris to reside in our case law and textbooks. For most problems of the common law, we rely mostly on decided cases of days of yonder. We have with some worrying comfort conspired that most or all principles have been litigated upon.
The need to consistently keep a reliable record of the decisions of our courts in beyond argument. For any practitioner in a common law jurisdiction, precedent is the source of law and no doubt the foundation of serious legal research.

Stare decisis or Precedent
The stare decisis [4]doctrine means that a decision previously made by a court on a point forms precedence for guidance to that court and binds lower courts. In practice, a judgment of one judge of the High Court would not bind another judge at the same level. However, a decision of 2 judges would bind a judge sitting alone. At the same time, a decision of the higher court would bind judges in courts below.
The rationale of this practice is that this preserves the certainty, stability and symmetry of a country's jurisprudence. Students of jurisprudence have over the years grappled with whether or not this practice improves justice or unduly handicaps it. Some courts take the more strict view that they bound by their own decisions while others feel free in exceptional cases to depart from precedent.
We are all aware of the 1981 Practice Direction issued by Fieldsend CJ[5] on precedent in these words;
“With the promulgation of the Supreme Court Act, 1981 (No. 28 of 1981), it is right that the Supreme Court should make known its practice in relation to the binding effect of its own Judgments and those of its predecessors, particularly in the light of section 24 of that Act. F
The Court considers it of importance that there be a degree of certainty upon which people can rely in the conduct of their affairs. Precedent is an important factor upon which to decide both what the law is and how it is to be applied in particular cases. It also serves as a proper starting point for any development of the law.
Nevertheless, particularly in a changing society, it is essential for the Court to have some flexibility so as not to restrict unduly its power to develop the law in proper cases to meet changing conditions and injustice in particular cases.
For the future this Court, while treating its past decisions and those of its predecessors as normally binding, will depart from a previous decision when it appears right to do so, applying the principles generally accepted under our law.”
Couched in polite terms, this Practice direction announced a shift in jurisprudence at Independence. Will a similar one be necessary in our jurisdiction in future?

The practice of the law is enriched and made easier through access to precedents particularly in adversarial systems. In the current set up, most of the poor countries in Southern and East Africa lack resources. I will not bore you with the specific horrendous indigence of our own country. Many of these countries have no recognisable law reporting structures. They rely on commercial publishers, who on commercial grounds only publish a selection of cases and at frequencies that justify commercial interests. The cost in countries where there is low consumption is high, running into thousands of dollars per year, a big cost on the many small practices in these countries. (My reference to dollars in this context is to a currency that bears the words, “in God we trust” and no other! Certainly not the one that promises to pay the bearer on demand!”)
The circumstances of the Zimbabwe Law Reports are well known. We have not published law reports from the latter part of 2002 to date.[6] When these are going to be published, in God we trust. It is important that judgments of the courts which form a big part of what is the law be easily accessible to the public. We lawyers are no less culpable in the state of affairs. How many non-lawyers read law reports? We are like bricklayers without trowels. I recall the sad episode involving the Law Society's[7] proposal to buy a new retro-graphic machine for the High Court. The initiative died because lawyers could not agree on ownership of the machine once it was bought from funds donated by members of the Law Society.
It is a time honoured duty of every lawyer to prepare for any case that he is dealing with. This is one of the best ways in which you can keep up with the competition. Access to precedents and the law in broad terms becomes crucial. The availability of the most recent case law would affect your litigation, negotiations, drafting, preparation, legal advice etc. A decision on tax law can make a huge difference on tax liability thereby saving your clients a huge fortune.
Ultimately, access to law affects the cost of your services and the allocation of energy and time. The lawyer with the least refined research methods will charge more for their research.
Southern African Judges Commission (SAJC)[8]
The SAJC is a commission formed by 15 Chief Justices from the Southern and Eastern African regions. (The member countries are Angola, Mozambique, Malawi, Zambia, Namibia, Botswana, Lesotho, Swaziland, South Africa, Zimbabwe, Seychelles, Mauritius, Kenya, Uganda and Tanzania).The main objective of the Commission is to promote the rule of law, democracy, judicial independence and human rights. The Commission has also made one of its objectives, the publication of the decisions of the superior courts in each jurisdiction on the Internet.
Southern African Legal Information Institute (SAFLII) Southern African Legal Information Institute (SAFLII)[9]
The work of the Southern African Legal Information Institute (SAFLII) and its effort to provide free on line judgments of the superior courts from 15 countries will be spoken about by my colleague Kerry Anderson. SAFLII belongs to the growing family of Free Access to Law Movement of LIIs like BAILII, Austlii, and CanLii etc.
The LIIs subscribe to the Montreal declaration on Free Access to Law which provides among other things that;
l Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
l Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;
l Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be be published by other parties;

*public legal information includes sources of law such as legislation, case law and treaties, as well as various secondary (interpretive) public source, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It includes legal documents created as a result of public funding.*

The LIIs publish via the Internet, provide free and anonymous public access to that information. They do not impede others from obtaining public legal information from its sources or publishing it.

To date thousands of judgments from at least 10 countries have been published freely on www.saflii.org. The collection process is underway with the most recent judgments being collected and posted as soon as they are received. Judgments are being collected from the superior courts including special courts. At the same time, SAFLII is collecting older cases for publication.
SAFLII does not in publication make any distinction between what is “Reportable” and “Non-Reportable”. It publishes all judgments from the selected countries' superior courts. With the advantage of the unlimited space that information technology provides, it has become unnecessary to follow the strict distinction and culling of judgments done by court reporters or by commercial publishers. Over time, many courts appear to have forgotten that this classification was done out of practicality rather than any distinction in terms of legal merit. The position taken by SAFLII is that every judicial decision is law even if it does not state any new legal principle. Obviously, every decision applies some principle of law to a particular set of facts and in so doing becomes the law on that particular issue.

While SAFLII provides citations of hard-copy publications, it will not characterise any decision as unreported simply because it has not been published in hard copy. Ultimately, there should be no distinction made between decisions published in print and online.


Free access ensures that;
l transparency of the courts is promoted through public scrutiny;
l courts help in defeating ignorance of the law;
l access to judicial precedents forms pillars for consistency and competence
l legal research and education are improved
l the production of judgments is streamlined and made efficient;
l legal costs are drastically reduced. Lawyers do not spend as many hours prodding from one law report to the next. Information is processed by efficient electronic searching tools and is easily available;
l the cost of storage and retrieval of information and judgments within a court system is reduced;
l quality of justice will improve due to improved access to information by judges, lawyers and researchers;
l the playing field in an adversarial system between litigants is more leveled as there is more or less equal access to information. We all know the barren nature of libraries owned by small law firms. The size of the firm is usually directly proportional to the size of the library;
l improve lobby for legislation;
l improve the quality and effectiveness of regional courts;
l ultimately, the benefit of an open, transparent and credible justice system does wonders for foreign direct investment, cross border practices, etc;

However, there are numerous obstacles to publishing court decisions on the Internet.
Some of these are;
Funding-the governments always accept the responsibility to fund and support the publication of statutes but appear hugely reluctant to plough funds into the publication of judgments. This is a state responsibility that is shunned. The state of law reporting in the 15 countries I have referred to bears overwhelming testimony. As a result, donor-funding supported the launch and continued existence of SAFLII. The excellent state of Kenyalaw[10] bears testimony to the good that can come out if the state assumes its responsibilities.

Access to legacy material-in many of the countries covered, judgments from the previous years are not stored in any formal electronic database or central archive. The collection work therefore necessarily involves ploughing through dusty and chaotic libraries with limited means to assist. Scanners have been employed to transform hard-copy material into electronic records that are published on the Internet. Some of the judgments were typed on flimsy paper which is difficult to scan.

We have however began to ask ourself questions. How far back should we go in collecting judgments of yester year? This is the debate about quality and quantity. Setlogelo v Setlogelo may be the locus classicus for interdicts, but do we not have cases that are recent that deal with the legal requirements in similar terms if not better? As we speak, the British have developed rules that actually limit the number of cases you can refer to in your heads of argument. The Internet provides so much that you could by a click of a button get all the summary judgment decisions of the SA high courts. But do we need to refer to all of them in our heads of argument?
Regrettably, in our part of the world, we are also archives of legal material and not simply law reporters.

Lack of Internet connectivity
I recall the debate I and Unity had with Deborah Baron the Director of the LRF. In her view, it was better to concentrate first on hard copies before the Internet since the clientele had no access to Internet. In the end we won her over on mainly the basis that the Internet was cheaper and could publish quicker than the press machine.

there is a region-wide lack of broadband

limited communications infrastructure

lack of funds for proprietary solutions and software. Some of you run pirated Microsoft software innocently. The cost of licences is prohibitive.

lack of local technology skills

Lack of Court IT infrastructure-courts in the Southern and Eastern African Region are generally poorly funded. They do not have computers, printers, servers, Internet equipment, email etc. Judges are generally thin on IT skills and display a not-so-keen inclination to learn. The libraries are poorly resourced. As a result, the judgment preparation is not lacks the necessary tools to make judgments suit the Internet requirements. SAFLII is currently working on judgment preparation modules which will make the preparation easier, easy to publish, standard compliant if not uniform, easily searchable and have advanced functionality for enhanced legal research across jurisdictions.

We have a dire situation in which the Judiciary is treated as a Department in the Ministry of Justice and not the Third Arm of the State. Financial independence of the courts is central to the independence of the Judiciary. For so long as the Judiciary cannot allocate its own resources independently it can never be free from Executive control.

Poor IT use in law schools, judicial colleges and by legal practitioners-there is a worryingly slow embracing of IT skills by law schools and lawyers. As a result, the use of the free legal resources is yet to spread across the entire profession. The lawyers in the state offices sit at the bottom of the list with virtually little access to the Internet and well resourced libraries. This disparity in resources continues to hamper the administration of justice. While lawyers in private practice may enjoy the unfair advantage, it is in the long run a self defeating circumstance. It is the lawyers who work for the state who will influence the quality of the legislation we get, the attitude of the state on human rights, the bargains you can negotiate the quality of the international treaties and so forth.

Differences in legal systems-the SAFLII project crosses the divide that legal systems provide. From the Roman-Dutch law influenced South Africa, Swaziland, Namibia, Botswana, Zimbabwe, Lesotho, to the more English law influenced systems like Tanzania, via the Civil law systems in Mozambique and Angola. Language barriers and approach to precedent is a challenge. Civil law is less precedent based.



OPEN JUSTICE AND PRIVACY
Decisions made in private and archived very far off from public scrutiny pose the greatest threat to the rights of citizens to access justice and full protection of the law. It is a well known cliché that justice must not only be done but be seen to be done. Judges who operate in secrecy create the greatest temptation to corruption. Open justice is enhanced by the opportunity for all and sundry to access and comment on judicial decisions.
One of the biggest challenges to online publication of judgments is open justice versus privacy. What details of the parties' or other concerned persons should be published? The line has never been clearly drawn both in statute and in the common law. The Internet by its nature offers a new and broader challenge. It is now possible to collate a person’s profile using details available by simple typing in their names through a search engine. This practice is commonly termed “googling” a person.
There is a serious concern that while the principle of open justice is one of the cornerstones of a transparent and accountable justice system, how open should the system be to a total stranger in a far off land employing the Web as a tool. Where does one strike the balance between the value of an open system in the public interest and the need to protect legitimate privacy rights? As the axiom goes, justice must not only be done, but seen to be done.
THE ZIMBABWE CONSTITUTION

The Constitution of Zimbabwe provides in s 18 (10) and s 18 (11) that trials shall be held in public. The court is given the power to exclude the public where it is permitted by a law;

l where necessary or expedient in circumstances would prejudice the interests of justice, or in interlocutory proceedings, or in the interest of public morality, the welfare of persons under the age of 21[11] or the protection of private lives of persons concerned in the proceedings;
l or by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the state.

The Statutes
Both the High Court and the Supreme Court Acts in identical terms provide that;

“Except as otherwise provided in the rules of court or in any other law, all proceedings in the Supreme Court shall be carried on in open court and the pleadings and proceedings thereof shall be in the English Language.” s31 Supreme Court Act, [Chapter 7:13]; (see also s49, High Court Act [Chapter 7:06])

Clearly, open justice is a principle well established in our law. The history of open justice is long. I do not wish to transport you in these days of fuel shortages that far back. Let me restrict me to a few sources.

The United States Bill of Rights, Article 14 of the International Covenant on Civil and political Rights and Article 6 of the European Convention of Human Rights recognise this right as a right to “a fair and public hearing by an independent and impartial tribunal established by law”

Jeremy Bentham, put it thus;
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
Bowling (ed) Works of Jeremy Bentham (1843) vol 4 at 316-317.

This passage was cited with approval nearly a hundred years ago in Scott v Scott, 1913 AC 417. This English case involved a woman who had successfully sued for the annulment of her marriage on the grounds of her husband's impotence. She had obtained transcripts of the hearing and circulated them to his father, his sister and a third party. Thereafter the husband sought an order holding her to be in contempt of court on the grounds that she had published information that had been disclosed in a closed hearing. As you can imagine, this annulment proceedings raised inherently private matters at a time when sensitive problems like male impotence were not discussed widely. I do not hazard to opine that much has changed in much of this country.

The House of Lords, quickly rejected the suggestion that litigants should be spared the humiliation, pain or embarrassment of having private matters publicly discussed. Lord Shaw called open justice, “a sound and very sacred part of the constitution of the country and the administration of justice”.

In his paper, “The Principle of Open Justice: A comparative Perspective”, Justice Spigelman AC, Chief Justice of New South Wales, stated;

“The fundamental rule is that judicial proceedings must be conducted in an open court to which the public and the press have access. A court cannot agree to sit in camera, even that is by the consent of the parties. The exceptions to the fundamental rule are few and more strictly defined.”[12]

Many rules of procedure have arisen from this requirement of open and public justice. I will focus on one that has brought the conflict between open justice and privacy. It is the principle that judicial accountability requires that the judge publishes reasons for the decision. The rule requires publication not only to the parties but to the public.

“The importance of ensuring that justice be done openly has not only survived: it has now become ‘one of the hallmarks of a democratic society’ . . . . The open court principle, seen as ‘the very soul of justice’ and the ‘security of securities’, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.”[13]
"Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts and, ultimately such free and frank debate about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the more important aspirational attributes prescribed for the judiciary by the Constitution.” [14]
The Court went further, relying on the decision of the US Supreme Court in Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 570–2:
“Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. In a memorable passage in Richmond Newspapers Inc v Virginia, Burger CJ characterised these objectives thus:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
. . .
When a shocking crime occurs, a community reaction of outrage and public protest often follows. . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. . . .

To work effectively, it is important that society's criminal process ''satisfy the appearance of justice'' . . . and the appearance of justice can best be provided by allowing people to observe it.'”

The Canadian view
"It is also worth noting that there is an important educational aspect to an open court process. It provides an opportunity for the members of the community to acquire an understanding of how the courts work and how what goes on there affects them."[15]


The US Supreme Court:
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:
‘The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.’[16]


Where is the line drawn?

Van der Westhuizen J (as he then was)
“It is a well-known principle in our law and public life that, proceedings before this court should take place in public. This principle is also recognised and guaranteed in s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. Section C 16 of the Supreme Court Act 59 of 1959 states that a court has the discretion to order the hearing of cases in camera in special cases...The principle and the ideal of a public hearing should not lightly be departed from. The Prinsloos' case is by no means special, as argued by counsel for the applicant. Intimate personal details are often disclosed out in courtrooms in front of members of the public and the media. This is unfortunate for the individuals involved, but their privacy is in such cases outweighed by values such that courts in a E democratic country function with transparency, so that any member of the public can see that justice is being done. It is not uncommon for a nervous, embarrassed and emotionally fragile plaintiff in a divorce court to have to explain under oath in a courtroom filled with a large number of onlookers, how a spouse committed adultery or how alcoholism, F drug abuse, family violence, or even incest wrecked a marriage, and for the victims of violent crime to have to explain in front of the public and the media how the death, rape or mutilation of oneself or a loved one, such as a child, was experienced and how it may have ruined people's lives. In this case aspects of the private lives of the G Prinsloos - and of course the previous litigation - have already been the topic of sensational reporting for a considerable time.” [17]

Statute
The Criminal Procedure and Evidence Act[18] deals with the dilemma in a criminal trial as follows;
It prohibits
l the publication by radio or television or in any document produced by printing or by any other method of multiplication, the name, address, school or place of occupation or other information likely to reveal the identity of any person under the age of 18 who is being or has bee tried in any court on a charge of having committed any offence; Provided, the judge or magistrate may during trial or the Minister after the trial permit in the circumstances of the case where it is just and equitable and in the public interest or in the interests of a particular person;

l the publication of identities of complainants or witnesses in sexual offences; victims of extortion or similar offences;

l publication of identities of juvenile witnesses

The Maintenance Act and the Children's Act also give the judicial officer power to hold a closed hearing, and by extension can protect the publication of certain information arising from such hearings.

To some extent, the current provisions of the law go some way in clarifying exceptions to open and public hearings.

The Peculiar Internet Challenge

The problem that SAFLII faces is that not all the countries it covers have similar legislation. Secondly, the problems in the Internet age go beyond the current statutory directives.

Commendably, the Canadian Judicial Council[19] has produced a Recommended Protocol for the Use of Personal Information in Judgments. The Protocol notes four objectives to be taken into account in determining what information should be included or omitted from reasons for judgments:
l ensuring full compliance with the law;
l fostering an open and accountable judicial system;
l protecting the privacy of justice system participants where appropriate; and
l maintaining the readability of reasons for judgment.

It also deals with what it terms three levels of protection;
“Personal data identifiers: omitting personal data identifiers which by their very nature are fundamental to an individual's right to privacy;

Legal Prohibitions on Publication: omitting information which, if published, could disclose the identity of certain participants in the judicial proceeding in violation of a statutory or common law restriction on publication; and;

Discretionary Protection of Privacy Rights: omitting other personal information to prevent the identification of parties where the circumstances are such that the dissemination of this information over Internet could harm innocent persons or subvert the course of justice.”

These broad guidelines also go into some detail in the protocol about what they constitute. We operate in a wide terrain with different cultures and social sensitivities. The major challenge is that some of the countries do not even have laws that deal with privacy matters in judgments. In many cases, the judges clearly lack training in identifying what may constitute unpublishable private information. Cases involving persons who are HIV positive have caused some controversy, with one judge in Botswana taking the initiative to anonymise the parties while others would have done otherwise due to the absence of common or statutory prohibitions. The debate about the privacy issues relating to the disclosure of the HIV status of persons in a book was a subject of litigation in SA recently. The Constitutional Court of South Africa still had dissenting opinions on the matter. The decision indicates that there is no universality or uniformity on what constitutes unpublishable private information, even in judgments.
Legal practitioners have an important role to play in the protection of privacy. As the lawyers representing the parties, or involved in the trials, it is your duty to ensure that judges remain aware of the privacy issues involved. It is the lawyers again who must ensure that any agreed standards are being enforced.
Due to the disparity in legal enforcement of privacy issues, SAFLII at present takes decisions to exclude certain private information considered unsuitable for publication. Yet SAFLII is not the be all and end all. The ultimate goal is to influence courts to enforce uniform privacy policies in their judgments through the use of Protocols like the Canadian one referred to above. Parliaments will also need to pass laws that effectively deal with these issues.
Many LII sites already exclude search engines from indexing their sites. This is not a permanent solution. For in a way this limits free access to law.

CONCLUSION
In this paper, I have just attempted to show how free online access to judgments can enhance your legal practice, the rule of law, democracy, legal research[20] etc. It is not an endeavour without pitfalls. It is not an endeavour that can survive on its own. It deserves the support of all practitioners and judges and our governments.

In our country today, it is hard to find heroes in public life. I was surprised to stumble upon one from over a hundred years ago. The esteemed warrior Gwaimani. Arrested during the 1895-97 first Chimurenga War for killing a whiteman and his Zulu servants near Gweru. He was brought to trial and admitted everything without any remorse. On being told that he would be hanged by the neck as punishment, Gwaimani loudly informed the authorities that “No white man would hang Gwaimani” He repeated this mantra many times after conviction while in custody awaiting execution. The authorities were shocked to find one morning Gwaimani dead in his cell. He had taken some poisonous herbs brought by one of his visitors. He just could not allow a white man to hang him. Gwaimani was a man of principle. In a small town in this country, a man was brought before the town magistrate to answer charges of assault GBH. The magistrate who recognised the man enquired why he had savagely clobbered a fellow citizen, to which he replied; “Your worship, the man said I had the ugliest wife he had ever seen!” The magistrate shocked retorted, “But you have no wife Mr. Ngulube!” “Yes your Worship I have no wife. I was just fighting the principle of the thing!” Like Gwaimani and Ngulube, if you have not had much illumination from my presentation on open access to law, just fight for the principle of the thing!

Mr Chairman allow me to express to this congress of lawyers my heartfelt condolences for the loss of one of the bravest cadres on the front. Lawrence was a vivacious and colourful character. I had known him since 1995 when he entered law school. He would not escape notice as he was one of the noisiest students in the mini amphi-theatre outside the law library, so fondly called the quorum. I looked forward to meeting Lawrence and collecting the 5 Bohlingers he promised me for asking Justice Kriegler to speak at this Summer School. In our loss, we have gained a great advocate for our cause in another world. We would not ask for a better advocate than Lawrence. As I imagine his place in the other world, I cannot help but remember what Winston Churchill said on his 75th Birthday;

“I am ready to meet my Maker. Whether he is prepared for the ordeal of meeting me is another matter.”

Zorora murugare munun'una. Zvapasi zvinonyenga. Kudenga tozofara!

TR Mafukidze
Mafukidze@concourt.org.za


[1] Per Saville LJ, Bannister v SGB plc and Ors and 19 other appeals [1997] EWCA Civ 1524 (25th April, 1997)
[2] See www.bailii.org
[3] 8th International Conference on Law via Internet, Montreal, Canada, 23-26 October 2007
[4] See generally, Susan W. Brenner, Precedent Inflation, Transaction Publishers, 1992
[5] See Practice Direction 2 of 1981
[6] The Legal Resources Foundation is working hard to ensure that the backlog in cleared.
[7] 2002 circular from the then Law Society of Zimbabwe Secretary, Mr. W Mapombere
[8] www.sajc.org.za, website will be accessible soon.
[9] See www.saflii.org
[10] I urge you to visit www.kenyalaw.org
[11] I have been unable to verify this queer age restriction.
[12] See, www.lawlink.nsw.gov.au/
[13] Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480 at para 22
[14] S v Mamabolo 2001 (3) SA 409 (CC)
[15] Edmonton Journal v Attorney General for Alberta, Attorney General of Canada and Attorney General of Ontario [1989] 2 SCR 1326, 64 DLR (4th) 577 at para 21.
[16] Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 572
[17] Prinsloo v RCP Media Ltd t/a Rapport, 2003 (4) SA 456 (T) at 462
[18] Criminal Procedure and Evidence Act [Chapter ]
[19] Canadian Judicial Council, Judges’ Technology Advisory Committee, “Use of Personal Information in Judgments and Recommended Protocol”. Approved by the Canadian Judicial Council, March 2005.
[20] See paper by TR Mafukidze,”The Promotion of the Rule of Law in Africa: Open standards and ICTs to support open access to the court system” presented at the International Conference on African Legal Resources: Challenges and Opportunities of Legislative Informatics, March 2007,Abuja, Nigeria

Judges Must Deserve Respect

EVERYONE WANTS TO REPECT JUDGES…THEY MUST DESERVE IT!

The Late Chief Justice of South Africa, Justice Ismail Mahomed had this to say in his address to the International Commission of Jurists in Cape Town on the 21st July 1998 on “Independence of the Judiciary”:

“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power.”


The Judge President of the High Court of Zimbabwe, Madam Justice Rita Makarau, while opening the 2009 High Court Year in Harare complained among other things that:

There was a lack of respect for the Judiciary by lawyers
Judges and Lawyers were allowing themselves to be affected by the political divisions in the country in their work
Lawyers brought election petitions without any basis
Lawyers criticized judges in foreign media
The Judiciary had tired of turning the other cheek

The Deputy Chief Justice Mr. Justice Luke Malaba was on the other hand busy in Bulawayo delivering his own address to open the legal year in Bulawayo. Justice Malaba’s in his speech acknowledged that the Bulawayo High Court had struggled with its court roll and indicated that there could have been better performance. He noted that the delay in the delivery of justice would in itself harm the reputation of the Judiciary in the eyes of the public. He expressly noted that some judges were busy doing their personal business during work times and this compounded the already congested court backlog.

As a parting shot, the Learned Deputy Chief Justice expressed his views about the SADC Tribunal decision in the Campbell matter and came to the conclusion that the Tribunal should not have heard the matter as they had not exhausted domestic remedies

In both instances, the Learned Judges have raised major issues. Both speeches raise important issues regarding legal professional ethics, judicial ethics, independence of the legal profession and independence of the judiciary itself. These issues are so interrelated that there will be no significant progress in the delivery of justice in Zimbabwe unless each of these issues has been satisfactorily and honestly resolved. Legal ethics do not take root outside an independent legal profession and neither do judicial ethics find life where judicial independence is long a distant memory.

Respect for Judges: Lawyers have a duty to be courteous at all times and this duty includes Judges and the Court

It is an ethical requirement that lawyers show respect to the Judiciary. In fact the duty is a lot wider and is set out as follows by Lewis in his seminal work on Legal Ethics, states:

“Personalities are infinitely various and not every practitioner is of so even-tempered a nature as to find it easy to be courteous in all his dealings. The legal profession undoubtedly imposes strains both mental and nervous upon those who practise it and it is exceptionally easy to allow these strains to reveal themselves in one or other expression of feeling which involves discourtesy.
The rule is this-however hard the disputation, however tough and unyielding the negotiation, however untruthful the witness, however discourteous, rude, even insolent the opposite number to an exchange, however neglectful, or stupid the subordinate, there is no room for anything but punctilious courtesy on the part of the practitioner.”

The IBA General Principles for the Legal Profession adopted on 20 September, 2006 state in Article 2:

“A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact.”

Any failure to show due respect especially in the course of the matter may in fact result in the lawyer being charged with contempt of court. Judges have inherent power prescribed by law to discipline lawyers in this regard. The example given by the Learned Judge President of a young lawyer failing to give way to a judge in the corridor in fact lightened the matter. The failure to give way may result in fact from simple poor manners of individual lawyers rather than their contempt for judicial office. But a Judge who suffers this from a lawyer must be in a position to assert his or her authority immediately. The judgment delivered by Justice Gillespie in the matter Felicity Mashinya v Scanlen and Holderness in the late 90s regarding the tone of a letter written by Mashinya’s lawyer provides ample authority.

It is not a power that is resorted to by an unduly sensitive judicial officer or by one seeking to hide behind the judicial cloak to silence dissent or legitimate criticism. The temptation to use contempt of court proceedings to silence dissent is both unlawful and unconstitutional.

Is the Respect a blank cheque?

The lawyer is ethically bound to show deference to Authority without abandoning his duty. As Lewis at page 14-15 puts it:

“The duty upon the practitioner is to demean himself with propriety before authority, but courageously to maintain his independence and to uphold the rights of his clients.”

Lewis further expands on this duty and states at page 214 that:

“Although proper respect for the court or other tribunal must always be preserved, it is not required of a practitioner to be in any way subservient or servile. It is not incompatible with the respect of the Bench for the attorney to uphold the dignity of the profession and to insist upon his rights and upon those of his client.”

In the old matter In re: Mackenzie an attorney appeared May, 1849 before Mr. Justice Menzies, who had a reputation for discourtesy towards counsel. It is reported that the attorney, Mr. Kift exasperated by his treatment by the Learned Judge addressed the court as follows:

“My Lord, no man is more anxious to pay all possible respect to the Court than I am; no man is more anxious to give the Court every possible satisfaction than I am; but, my Lord, in my endeavours to do my duty, I submit that I am entitled to be treated by your Lordship with common courtesy-and, my Lord, if I am to be worried by your Lordship’s discourteous treatment, I shall be unable to give the Court that satisfaction which I am anxious to give.”

The Judiciary owes its respect from the fact that it performs a certain function in our constitutional democracy-the adjudication of disputes without fear or favour. The function is performed without armies to enforce the decisions of courts. Their esteemed position in society encourages the general public to obey judicial decisions. It is for this reason that veritable titles have been invented for judges and magistrates. They occupy a respectable position in our society. With this respect comes an obligation which is that judges must be beyond reproach-in both their professional and individual conduct.




Lubet, in his article “Judicial Ethics and Private Lives” (1984-85), 79 NW University Law Rev, 983, observed:

“In a democracy, the enforcement of judicial decrees and orders (of courts) depends upon the public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. Should the citizenry conclude, even erroneously, that cases were decided on the basis of favoritism or prejudice rather than according to law and fact then regiments would be necessary to enforce judgments.”

In Deuteronomy 16:18-20, the Almighty said-

“You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.

In the Holy Scriptures land is the reward for doing Justice!

Judges derive their respect and high esteem from their perception as independent, impartial officers with integrity. That has always been their source of power from times immemorial.
The Learned Deputy Chief Justice in his address in Bulawayo put his finger on the pulse when he noted:

“There is also no doubt that pursuit of personal business by a Judge during the time he or she is expected to be performing judicial work cause disrespect for the judicial work, cause disrespect for the judicial officer in the minds of legal practitioners and litigants who have to take other people’s days in court by having their cases postponed…A poorly run judicial system will in time undermine public confidence in the entire system of government.”

But What Constitutes this Independence of the Judiciary?

Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said:

“There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience.”

In the Indian Supreme Court decision in Union of India & Ors. Vs. Pratibha Bonnerjea & Anr. (1995) 6 SCC 765, Ahmadi, and C.J., observed:


“Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone. Since a substantial volume of litigation involves government interest, he is required to decide matters involving government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him…He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”


The converse is that when Judges cease to be perceived as independent and impartial, they lose respect of both practitioners and the general public. I do not think it needs a forensic or empirical study to determine where the Zimbabwean Judiciary sits in this regard. The Bangalore Principles of Judicial Independence state as follows regarding independence of a judge:

“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects…
1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”

The main reason why judges have lost respect is related to their perceived failure as a group to discharge their duties in an independent and impartial manner especially with regards to matters that involve politics and land. The Judge President herself in fact admitted that judges were being affected in their work by political matters. What she failed, regrettably to appreciate is the fact that:
Lawyers can belong to political parties and even hold political office
Lawyers are not required to be impartial. They do not decide matters.
Judges must be political eunuchs who do not participate in any political roles. As Lord Bingham put it: a judge should be a political eunuch!

Every day, lawyers holding political offices have appeared in our courts. But no judge should hold political office while serving as a judge. To equate the role of judges and lawyers in this instance is wrong in law.

The case of Law Society of the Transvaal v Mandela illustrates the point clearly: that the pursuit of political beliefs does not make a lawyer unfit to perform his duties as a lawyer. But such pursuit of political beliefs by a judge is unlawful and an abandonment of duty. Nelson Mandela had been convicted of furthering the ideas of communism and propagating the idea of removing the government of the Union of South Africa from office by unlawful means. Subsequently, his law society sought to have his name removed from the roll of attorneys because of this conviction. In a 1954 decision, the Appellate Division of South Africa dismissed the petition and found that:

“The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence he has been punished. But his offence was not of a “personally disgraceful character”, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.” [Per Ramsbottom J]

And yet, a judge who is swayed in his work by politics of the day commits serious misconduct that requires that he be banished immediately from the hallowed seat of justice.


Further, lawyers cannot be associated with the cause of their clients. That is a cardinal rule on the independence of the legal profession. It is set out in the IBA principles as follows in Article 7:

“The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be.”

So, a lawyer does not become an MDC lawyer by reason that he represents MDC and neither can he become a Zanu PF lawyer by reason that he acts for a member of Zanu PF.

Criticism of Judges
Judges are not gods. They are human beings appointed to serve in public office and are required to account for the enormous power which they exercise. This is called judicial accountability. As the Late Chief Justice Ismail Mahomed put it:

“Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”

Lawyers are entitled like any other citizen to criticize the legal systems, the laws that are enacted, the decisions and conduct of judges etc. The ethical requirements are only that the criticism should be temperate and in good faith. The criticism can be done by an individual lawyer or as a group. It may be a general criticism or a specific relating to a particular matter. With the right to criticize comes the converse obligation on lawyers to defend the administration of justice should it come under undue attack. The defence does is only to the extent that it is necessary to ensure that the administration of justice does not come into disrepute. It is not by any means required to be a defence of a particular judge’s reasoning process or conclusion. In order to forestall the uneducated criticism of court decisions, some courts now publish media summaries with the delivery of important judgments so as to provide some lay-guide on what the case was about; the law applied and the outcome. These have reduced the level of poor reporting which usually sparks wrongful criticism.

Justice Makarau complained that about criticism by certain lawyers that there was no rule of law in Zimbabwe. This criticism she said is made in the foreign press. The Learned Judge President appears to imply that the criticism is wrong because:
The use of foreign press undesirable
The lawyers who complain in the foreign press actually get most of their orders from the courts they complain about.

On the first ground, the Learned Judge President does not raise any basis for limiting freedom of expression to the local press, unless she started off on the common premise within certain circles that the foreign press is an “enemy of the state”. This hopefully, did not influence her thinking as her court was approached several times to determine the rights of foreign journalists being deported illegally.

Secondly, the Judge President would be able to take judicial notice of the absence of independent daily press in the country. There is no alternative electronic media. The Daily News case judgment of the Supreme Court displays the role played by the Judiciary in consolidating this position.

Thirdly, in the fast globalizing world we live in, the strict demarcation of borders in the flow of news and opinions is non-existent. The judges who received satellite dishes from the Reserve Bank would surely appreciate how much they can at the press of a soft button invite the BBC, Sky News, Al Jazeera, CNN, Euronews and many others into the comfort of their homes, farms or chambers.

The second part of the Judge President’s criticism lacks empirical or statistical analysis of what she said making it difficult for one to agree with her. I wonder whether the statement she made answers the criticism by lawyers that:
Orders are not being granted in “sensitive matters” (land and political cases);
When orders are granted, they are not obeyed and contempt of court proceedings have never achieved anything.

The Role of Criticism

It is right to recall what Lord Denning MR said 23 when the then Mr. Quintin Hogg QC MP launched a broadside in the press against a judgment of the Court of Appeal:
"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right". “
The writer will not debate the decision with the Deputy Chief Justice about the SADC Tribunal decision but it is salutary to note that there is a standing convention that judges do not criticize decisions of Appellate courts especially in matters the judge sat in. That old wisdom is not invaluable. Judges of the High Court may have serious views about decisions of the Supreme Court, but we do not want to see the day they will criticize the higher court for overturning them. It has long been accepted that final courts are infallible. They are infallible because they are final. If there was a higher court than the Supreme Court, many of its decisions would have been reversed too.

It is unhelpful that the Deputy Chief Justice gave his views attacking a decision that the Government of Zimbabwe has already indicated its desire to ignore. The attack regrettable gives fuel to a decision to undermine the rule of law.

Conclusion
Lord Bolingbroke put it no better than most when he said of the legal profession:
“The practice of law, in its nature the noblest and most beneficial to mankind, in its abuse an abasement of the most sordid kind.”
It is our hope that the Bench and the Bar will find the ethical compass required to deliver justice to all.

The Legend Of Aiden Diggeden

Zimbabwe’s legendary Ford car obsessed prison breaker: Aiden Diggeden
In 1984, while doing grade five at Driefontein Mission one of my Harare friends serenaded us with the stories of a legendary criminal and jail breaker he referred to as ‘Diggy Den’. I was fascinated by the tales told, though I never believed any of them. I was partly embarrassed too because being a policeman’s son, I had never heard of this Diggeden. During the next holidays, I asked my father about Diggeden. My father related how this thieving and amazing white man escaped from any jail that ever tried to hold him. I was fascinated by it all.
Then one Saturday morning some twenty five later, I went hunting for old books in Melville in Johannesburg. While trawling through old books from Rhodesia, my eyes were attracted by a book with the titled ‘Some Famous Rhodesian Trials’ by Alan Hardy. On opening the book, I was overjoyed to discover that one of the criminals covered in the book was Aiden Diggeden. For the first time, I had finally found something written and authentic about Diggeden. I immediately paid the R 180 price for the used book. It was money well spent. Aiden Diggeden was indeed one of those to whom the name legend is used without exaggeration. He was a criminal, yes, but one who made his trade proud. Alan Hardy narrates an amazing story of a man who could escape from any prison and yet had an obsession to steal Ford motor cars.
History
Diggeden was born in Bulawayo in 1939. He attended his primary school there before proceeding to Chaplin High School in present day Gweru for his high school education. Chaplin was also Ian Douglas Smith’s alma mater. Even in his days at Chaplin, he proved quite an adept thief. On leaving school, Diggeden was sent to prison in 1962 for stealing five cars- all of them Fords! He was sentenced to four years’ hard labour. Yet imprisonment, or should I say being in prison, Diggeden did not stop him!
On 30th September 1962, a large quantity of electric goods was stolen from a large Bulawayo shop. On the same day, a Ford Zephyr and a Ford Consul were reported stolen. One of the cars was found parked opposite Grey’s Prison, where Diggeden was serving his sentence. The police were at sea about the culprits who had committed the crime.
A month later, CABS offices in North End, Bulawayo were broken into and a large safe was stolen. On the same day, it was reported that two cars, a Ford Zephyr and a Ford Consul had been stolen. The safe was recovered in a farming area after the culprits were disturbed while trying to break it open. Once again, one of the stolen cars the Ford Consul was found parked opposite the prison.
Two days later, robbers staged a daring attempted to steal $ 32, 000 which were wages being transported by the railways. After a mishap, the robbers disappeared into the night without managing to steal the cash. Police found a stolen Ford car next to the Mpopoma Siding, while another Ford was found near Grey Street Prison! A mistake in the railway robbery attempt gave the police the clue they wanted. A key dropped by the robbers showed that it belonged to Grey Street prison. The police were excited about the three prisoners sharing a cell: Diggeden, a renowned car thief with a penchant for Ford cars; Rinder who had attempted to use explosives in a bank robbery; and a violent criminal called Scalding. As Hardy says:
‘They were safely in gaol at the time of the unsuccessful train robbery and each of the previous unsolved robberies.’
However, thorough police interrogations got Rinder and Scalding confessing. They had smooth talked a prison guard to allow them to go in and out of prison. On searching their cell, the police found an assortment of tools useful for their crime spree. But Diggeden, a former Railways employee himself, could not stomach a new criminal trial for the crimes committed from prison. He therefore planned his escape from prison. The plan was to stage a mass break out. The rest of the prisoners would surrender once outside the prison walls, while Diggeden and his associates would escape. During the escape, Rinder and Scalding developed cold feet and gave themselves up, but not Diggeden! He vanished into thin and was ‘neither seen nor heard of again in Rhodesia until 1965’. Diggeden had ‘made his way to South Africa where he operated under assumed names. Posing as a car salesman he continued his life of crime in a somewhat more flamboyant fashion.’ He reportedly got so good at trampoline that he won the South African trampoline title.
By this time, Diggeden was operating under a false name. He was known as Colin Nicholas Trauter. He was arrested for car theft but escaped from a jail in Johannesburg before trial. He never returned to Johannesburg until 1980. During his South African stay Diggeden had not done small jobs. He had ‘some fifty known cases of car theft’!
Diggeden re-entered Zimbabwe in February 1966 through Forbes Border Post in present day Mutare with a companion named John Terence Dillman. They had British passports and pretended to be visitors in transit to Zambia. Shortly after arriving in the then Salisbury, Diggeden and his friend did something uncharacteristic- they stole a Mini Cooper! They then went to CABS branch in Mabelreign and held up the teller before making off with $ 1,750 using a toy gun. The police was put on national alert. Meanwhile, Diggeden and his companion had headed to the City of Kings by train. They decided to check into the Plaza Hotel and hired a room in the name of J T Dillman. When police came around the hotel sniffing around for them, the pair made off from the breakfast table and left behind $ 1 680 of the bank loot behind in Room 111! Police also found two passports in the name of JT Dillman. This enabled the police to link Diggeden to the bank robbery. The teller identified the two men in the passports as the robbers.
A nationwide manhunt was launched, but it came to no avail. Police then received the news that Diggeden and Dillman had been arrested in Zambia for car theft and had been convicted and sentenced to three years imprisonment. Two senior detectives travelled to Zambia to interrogate them. While Dillman admitted the offences, Diggeden denied everything. Yet, he informed the detectives that he intended to escape from prison in Zambia. Diggeden was found with a hack-saw blade which he intended to use for his escape and was charged with attempted escape in the Zambia High Court on 9th September 1966. Diggeden lived up to his reputation. During the court proceedings, Diggeden sprinted out of court and disappeared into thin air!
On arrival in Bulawayo two days later, the fugitive was arrested by detectives. He pleaded guilty to a number of the crimes he was facing and was sentenced to thirteen years in jail. In order to ensure that Diggeden served his sentence, they transferred him to Salisbury maximum prison (Harare Prison, next to Morris Depot). When prison authorities heard rumours that Diggeden was planning another escape, they confronted him. Typically, he replied that the prison would never hold him. They had been warned! As Hardy relates:
‘Just one year after his recapture, at 3.45pm on 31 January 1968, one of the most daring and ingenious escapes in the annals of Rhodesian prisons was under way. Months of planning and preparation went into this amazing man’s next bid for freedom.’
Aiden Diggeden had fortuitously come across the master key of the maximum security section. He had sketched and made a copy at the prison workshop. He had also stolen civilian clothes from the store room and also made another key for the trap door above the maximum section. Diggeden and his accomplice Lionel Barker used their duplicate keys to escape from cells into the loft. From there they made a ladder using stolen towels and other materials. They then crawled on the roof timbers and opened an air-vent they had previously loosened. As Hardy narrates:
‘Here they paused, forty feet above the ground. After securing the rope-ladder, Barker went first, but is weight was too much for the ladder and he plunged to the ground, breaking his leg in the fall.’
This is the moment we would shout in the village, ‘koinda nhete hobvu dzokorwa nemanda’! The fat one was pulled back by his weight! The injury cost Barker his escape. But Diggeden would not abandon his comrade. He carried him to the prison chapel and prepared him a bed with bench cushions. Diggeden stayed with Barker comforting him until at 4.30am when Diggeden then made his next move. Barker remained in pain in the chapel and would not alert anyone until Diggeden was well on his way. Diggeden used one of the chapel benches to jump over perimeter and made his way to the prison parking area. He concealed himself under one of the trucks and at 5.30am, he was driven out of the prison while hiding between the body and the chassis.
Diggeden slipped off and made his way to what is now Chikurubi Support Unit. ‘Walking to the police depot nearby, and in his usual audacious manner, he stole a bicycle which belonged to a depot inspector, and rode to Salisbury.’ Diggeden was back to freedom! Another national man hunt was unleashed.
Surprise, surprise...on getting into the city, Diggeden stole another Ford Anglia. The Ford Anglia found abandoned the next day along Mazoe Street. He stole another Ford which the police found abandoned near the central police station. Diggeden went under and only surfaced some days later in Bulawayo. A detective gave chase as Diggeden drove a stolen car but lost the target. On 7th February, the police finally made a breakthrough. ‘An African storekeeper telephoned the police saying that a man who could have been Diggeden had been into the store and had then boarded an African bus heading for Essexvale (now Esigodini). Diggeden was arrested on the bus. He was taken back to Harare and, seeing all his accomplices had confessed, admitted what had happened. He was sentenced to a further eighteen months for escaping. He now faced a total imprisonment of fourteen and a half years.
But Diggeden would not be suppressed. A year later he made another dash for freedom. This time, he asked to see the prison senior officials. He just dashed off while being accompanied back to holding cells from the visit. He out sprinted the surprised guards and scaled a sixteen feet wall to momentary freedom. A detective who was nearby disturbed this dash to freedom. Diggeden was arrested again. His additional sentence meant that he faced the prospect over sixteen years in jail.
But Diggeden was not done yet. ‘At 6.45pm on 6 August 1970, the seemingly inconceivable happened. Diggeden, under stringent maximum security surveillance and confined to a cell measuring ten feet by eight feet and ten feet high, for approximately sixteen hours a day, was reported to have escaped from prison and was again on the run!’A massive man hunt was called off three hours later after Diggeden ‘was found hiding in a water-tank on the roof of one of the cell blocks.’ Another year was added to his sentence for the attempted escape.
According to Hardy:
‘The forlorn outlook of over seventeen years of incarceration and the possibility of extradition to South Africa at the end of his prison term in Rhodesia, gave Diggeden little to look forward to other than to plan his next escape, and somehow to get out of the country.’
As expected, Diggeden escaped again from the maximum prison on 15 November 1971. This time he used a key he made in the prison workshop to escape the maximum security section. Hardy explains the most incredible escape plan:

‘His plan was so extraordinarily impudent that it is difficult to believe he actually got away with it. Dressed as a prison guard ostensibly in charge of two European prisoner- one carrying a film projector and the other a screen- Diggeden nonchalantly walked to the main gate of the prison.
Disguising his voice, and in an admirably authoritative manner, Diggeden told the duty warder to open the gate as he had outside work for the two prisoners to perform, saying that he was taking the two men to give a cine show at the prisoners’ mess.
Bidding his ‘colleague’ a pleasant ‘cheerio’, the duty warder opened the main gate and let the three men out!’
You have to give it to Diggeden! Once outside the prison, he stole ‘a warder’s Ford Anglia which was parked outside the prison gate and the three men drove towards the city centre.’ They were free for a few days before a tip-off from members of the public who had seen them driving a white Ford in the Avenues area started a man hunt ‘described as the biggest in Rhodesian history’. Diggeden and his two accomplices were finally cornered in the Avenues that evening and arrested. In February 1972, Diggeden received ‘two years’ hard labour for escaping and an addition two years’ hard labour for taking and driving a car without the owner’s consent. Three years and six months of the sentence were conditionally suspended.’
This sentence marked the last time Diggeden would attempt to escape from prison. He served twelve years out of a sentence of eighteen years and was released from prison on 16 November 1978. The day after his release, he left for England to take up a job as an accounts clerk. While in England, Diggeden found time to write a letter to the police magazine the Outpost. The letter was reproduced by other national papers. In the letter, he praised the police for the hard work they put in ensuring that he was arrested for his offences!
But Diggeden was not done with crime. On 11 April 1980, newspapers reported that Diggeden had been jailed for five years for stealing 41, 000 British Pounds from British employers. Shiri ine muririwo wayo! The money was apparently squandered on a trip to South Africa, where he had unfinished business with the law over the theft of over fifty cars some years before.
The whereabouts of Aiden Diggeden remain a mystery. He is one compatriot I would want to sit down with and listen to the story of his life. His obsession with Ford, his aversion to imprisonment and his ability to escape from prisons make him a true legend in his own right. It is said that much of his loot was invested in Kruger Rands gold coins in South Africa. If you see a wealthy fellow, in his 70s, driving a Ford, you may be in the presence of ‘greatness’!
May we never see his like again!

Tererai Mafukidze is a lawyer. He can be contacted on tereraim@gmail.com. His article on Aiden Diggeden is based on ‘Aiden Diggeden: “No Gaol Can Hold Me”, in Alan Hardy’s ‘Some Famous Rhodesian Trials’, Books of Zimbabwe, 1981 page 119-132.

Shumo dzaLocadia

Shumo that Locadia wishes she had known (with apologies to pastoral wisdom)

1. Rinonyengwa rinohwarara, rinobuda muHerald rava kuState House.
2. Chiri muhana chiri muninga, chiri muHerald mutoro waMambo.
3. Uswa hwenyati ndohwuri mudumbu, hwuri mumuromo inofa nahwo.
4. Chisina kuuya nomunyai chinorova.
5. Majichimbo-chimbo anofara musi wafa kondo ziso.
6. Kuwanikwa hwumbangu, kurambwa hwumbangu.
7. Makunguwo zvaakahla kubuda muHerald, akarambwa mangani?
8. UFirst Lady ingoma yomusiyiramwa.
9. Gozho mhini gara mumwena kwete muHerald, chomudzimu chikuwanire imomo.
10. Zvatumwa wabvira Sekuru kutumwa kunobhadhara damage ivo vosvika vopereka mwenga.
11. Zvikoni-zvikoni kurambwa nePress Statement hakuna gupuro.

Makoni was my teenage heartthrob

Every man must have one. Most men have at least one- a teenage heart-throbe. There is a girl you really loved. She was the embodiment of serene Nubian beauty. She had a full body, pure white teeth and a smile to go with it. No matter how hard you tried to ensnare her, she had no time or concern for your attentions. That girl was your teenage image of the mother of your children.

If yours lived in your neighbourhood, endless trips past their house were the norm. If you went to the same school and were in the same class, you may have done many home works for her, tried to teach her Shakespeare or even the matrices, hoping than your brain would ensnare the beauty. All efforts would come to nought. If you went to the same church and were Catholic, your petitions in Mass included her. If she was in the choir, her mellifulous voice was all you heard endlessly.

But like all teenage heart-throbes, we waited, they did not care a hoot about us. We were heart broken. Years later, they seem to appear from nowhere having traversed the world. They now look dilapidated, like the forlon grave of a harlot. Unkempt, uncared for and somewhat victims of beauty's own inflation. More quantity yet less in value.

I will not mention the three kids with different totems.

Forgive the reference to prostitution. When I am 84, I do not want to spend my birthday telling school children about prostitution. What happened to 84 year olds forgetting when they were born?

In the mid 1980s, possibly in 1986, I was the lead altar boy at the funeral of one of Zimbabwe's greatest Shona poets, J.C. Kumbirai. He was buried at Driefontein Mission in Mvuma. I recall that one literary luminary, possibly T.K. Tsodzo of the Pafunge fame. (someone must a make a movie of this book!), read what was said to be his last poem written in long hand. It must have been about the sun.

Before that day, I suspected that the only poem by the same poet I had read was one that encouraged us to go to school as the new economy did not have cattle. I may be wrong, but like a preacher I will not let facts stand in the way of a good sermon. I resolved that I would put some effort into finding the works of this men showered the greatest eulogies by each speaker at the funeral.

When I first read a collection of Shona poems entitled Mabumira eNhetembo, a found a good collection of his works included. One poem that took my heart was the one called, “Ndingati Uri Munhu Mwanangu”. I

n later life, I stumbled upon a poem by Rudyard Kipling called “If”. I was struck by the similarity between the two poems and I hastily concluded that Mr Kipling had plagiarised from my hero. A bit of biographical research revealed that Mr Kipling had died in 1910, unlike my hero who died in 1986. They are actually separated by a Hailey's comet which appeared in the years of their deaths. It only appears once in 76 years!



Rudyard Kipling says in the last stanza of his poem:

“If you can talk with crowds and keep your virtue,
Or walk with kings - nor lose the common touch;
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much;
If you can fill the unforgiving minute
With sixty seconds' worth of distance run -
Yours is the Earth and everything that's in it,
And - which is more - you'll be a Man my son!”
Students of history and poetry will tell you, that these two great poets separated in death by the Hailey's comet, wrote about the same country that is Zimbabwe. Kipling's poem was about Dr Leander Starr Jameson and his ill-fated 500-men raid of the Transvaal of 1895. The raid precipitated the Anglo-Boer War from 1899 to 1902. Some quiet diplomacy from Salisbury, I guess!
JC Kumbirai was giving the unfailing lesson that each parent must give their child.
When Jameson left to make the disastrous raid, he crossed paths with a telegraph sent to him by Cecil John Rhodes from the Cape. The telegraph simply stated,
“Read Luke 14 verse 31”. He might as well have recommended the entire chapter.
Jameson never did. For those without Bibles this relates to Jesus's teaching about the cost of being a disciple. The verse says:
“Or suppose a king is about to go to war against another king. Will he not first sit down and consider whether he is able with ten thousand men to oppose the one coming against him with twenty thousand?”
My own heart-throbe married a rich polygamist who as expected, pre-deceased her. Simba Makoni was my heart-throbe. I tried to woo him but he would not have my attentions. He now turns up with excess baggage like Ibbo Mandaza and Major Mbudzi. My heart has moved on.
I accept in my heart that Simba Makoni maybe the best President Zimbabwe will never have. In the same way Jairos Jiri is the best Minister of Social Welfare we never had. In the same way that Amai Rwizi (Susan Chenjerai of the Mukadota Family show) is the best First Lady and Mother of the Nation we will never have. Imagine Mai Rwizi saying, “vanhu vangu”!
In J.C. Kumbirai's poem, he states in the last stanza;

“ Handi nyore kutsika mumvura ukasanyorova,
Kana kupinda muno utsi ukasakachidzwa.
Handi nyore kuzembera unye hukasambokuvava,
Kana kutsika chiva chigorega kukuruma.
Ukazvigona ndingati uri munhu mwanangu.”

When I am 84, I will sit by the fire and read poems to schoolchildren. And JC Kumbirai will be top of the list. At that age prostitution is not a recommended topic.

Saluting our betters

I have not the least difficulty in addressing a male judge as “my Lord” as is the custom even though I learnt in my Catechism class that I have one God. I have no difficulty in addressing a female judge as “my Lady” even though I am married. Of course, it increases my motivation to so address her if she is good looking. Sadly beauty and sharp legal minds rarely coincide in female judges.

I have on numerous occasions saluted magistrates as “my Worship” even though I do not worship them. I bow every time I enter or exit courts in session in the same way I do in church. But the latter is born out of solemnity and reverence, while the former is mere politeness and custom.

Old men and women have no difficulty in my church in referring to a young priest, old enough to be their great grandson, as “Father”. In the same way, I have no difficulty in referring to a judge as “Mr. Justice” as he is busy dishing out injustices. Lawyers call each other “learned friends” in court even as the other is making the most nonsensical of arguments. I have no difficulty in addressing a Member of Parliament as “the Honourable” even though he may be Jonathan Moyo or on his way to jail.

I presume junior soldiers have no difficulty in saluting their superiors, generals or less, even as the juniors under their breath suppress their indignation. Napoleon Bonaparte, a great general like no other, had soldiers saluting him even though he himself quacked with fear on the appearance of his own wife, ironically named Josephine.

It is all done out of politeness imposed by custom. In some professions like in the army the practice is encouraged by the threat of punishment.

The trouble starts when the person so addressed or saluted takes this too seriously.

It was therefore with consternation that I learnt of the threat by “service” chiefs General Chiwenga, the inappropriately named Major General Paradzayi Zimhondi and lately Augustine Chihuri, to withhold their salutes from Morgen Tsvangirai or Simba Makoni should either of them win the presidential election. I presume they have no difficulty in saluting Langton “Huckabee” Towungana the other challenger, should he win.

The two men are saluted by countless others because of the title they wear rather than for their subjective desirability. If we only used the title “His Excellency” in reference to those who are really excellent, how would we address our President? His Holiness, Pope Benedict the 16th is still a sinner like me, a simple parishioner.

I advise Tsvangirai and Makoni that if one of them wins both the voting and the counting, the winner should take a bowl of warm water, the most fragrant soap and a piece of cloth and wash the feet of the three men. After which you must salute them.

Soldiers On High

In April 1985, my Uncle kindly took us to the Zimbabwe International Trade Fair in Bulawayo, which was a great show back then. After we got tired of touring the stands, watching the tug-of-war matches, we begged him to take us to the Luna Park. I recall walking past the Lever Brothers' stand where hundreds of people were receiving free hampers of soap, toothpaste, cooking oil, lotions, and hair care products and so on.

The Surf Pick-a-box show was in its element, well hosted by Kembo, the comedian of the Mukadota Family fame. Next to this stand was the Army exhibition stand. Many visitors were busy riding tanks and curiously inspecting the weaponry on display. Smartly dressed soldiers were all too keen to share their knowledge.

Somehow, a country that has known violence has a fixation with all things military.

Down the road on the right was the famous Gora Tavern. The sweet smell of roasted meat and intestines filled the air as much as the high decibel chorus of drunken noise emanating from the drinking place. Ebony Sheik must have been playing in there too.

When we got to the Luna Park, the area was full of people waiting to get their chance to ride the machines. My brother and I chose to ride the “Jets”. After a while we got the tickets and joined the long queue winding around the jets barricade fence anxious for our turn to arrive.

Suddenly, a tall dark man appeared and jumped to the front of the queue. He was obviously drunk and in army uniform. No one dared challenge him. He quickly jumped on the next trip his blood-shot eyes unashamed. His jet, like others, took to the skies immediately. The queue inched forward.

Suddenly, we all felt a heavy shower raining on our heads. Everyone scurried for cover. Like a Kintyre Estates sprinkler of old, the man sprayed all of us with traditional beer vomit with delicate uniformity and military precision.

When the three minute trip was over, the jets came down. The man sauntered out of the dirty jet, and made for the exit. He did not tender any apology. Someone in the queue shouted in Ndebele, “khithika mkaza idibha likhatshana!”

[Translation: hurry up tick, the dip-tank is a long way from here]

He did not look back. He may be an officer now and getting saluted by others.

My Grandmother

Coincidentally, on 29th March, it will be 20 years since my grandmother passed away at Gutu Mission Hospital. She was a victim of an attack by a dog with rabies. She was born Rungai Muzenda but for most of her adult life was known as VaChipembere due to her rhino-like temperament. She loved her traditional brew and used to brew it very well. I hated weeding her rapoko fields as I could not tell the difference between the shawi weed and the rapoko. But I liked the brew. In Gutu grandmothers rear children on beer, sometimes!

My grandmother had no habit of riding Luna Park jets when inebriated. No. She just loved to sing. We would hear her sing loudly from hundreds of metres away as she approached her homestead at sunset from one of her drinking trips in the village. We would join in from the smoky thatch kitchen as she sang;

“Chidhanana chera mwena, chera mwena
Chidhanana!
Chera mwena, nguva yakwana
Chidhanana!”

On good days a drum would be added to the merriment with telling ferocity.

I hope as I remember her on the 29th, I will sing her favourite song, Chidhanana! She can only hope that her watch will stay safe from drunken soldiers and dogs with rabies. And of course, that I have now learnt to tell a weed from the rapoko!

PS. If you should know, the police officer who took down the Union Jack, folded it neatly and handed it to Prince Charles, and hoisted the Zimbabwe flag on that Independence night in 1980 was a mere superintendent in the police. He spent most of the night watching Bob Marley very closely as he had promised to arrest him should he smoke weed at the show. Lt. General Peter Walls, the Rhodesian Army chief, was probably at the KG VI mess enjoying a beer and kudu biltong.



Tererai Mafukidze is a lawyer. He lives in Johannesburg. He can be contacted on tereraim@gmail.com.