30 October 2020

BY DR MASIMBA MAVAZA | A mischievous letter purporting to be from the Judges of the High Court made rounds in the social media and a lot of online newspapers. The letter was a pretence of a complaint by the judges against the chief justice Luke Malaba. The whole fiasco made it hard to believe that Judges of the High Court could write such a letter and ignoring the procedures set aside for such a matter. The fact that the letter was an anonymous one casts more doubt on the genuineness of the letter.

The permanent Secretary to the ministry of Justice Mrs Mabhiza was quick to comment thus saying:
“We take note of the document that has been circulated on social media and newspapers attacking the Judiciary, the JSC and the Chief Justice in particular.  We note that the issues raised in the anonymous document are the same old stories which are being recycled and which have been subject to investigation already.

We do not believe this document was authored by Judges because if it was then we see no reason really why it should be anonymous persons.  Honourable Judges have previously made complaints and written petitions to the Chief Justice, the JSC and His Excellency.  At no time have they done this anonymously.”

Mrs Mabhiza is making sense in her response to the anonymous letter. One wonders if the author’s of the complaint were really judges. Judges are bound by a strong show of Judicial integrity.

This is a pre-condition to maintaining trust in the judiciary and upholding its independence. Judges are the public face of justice. It is to the courts that citizens and the state turn to make binding legal decisions that can have a great impact on people’s lives. People with such huge responsibility on their shoulders are careful not to lift their skirts in Public.

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. So if judges decide to clean their garments in public then there is no dignity and integrity to talk about. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should be responsible.

The document circulated on social media was the work of the detractors and the leaf should not be found very far from the tree.
This is a document had all signs that it was authored by those who are aggrieved by the position and stance taken by the Chief Justice and JSC to fight corruption and hold people including members of the Judiciary accountable.  The problem with some judges with issues is that they believe that a judge is a legal revolutionary. They believe that a judge is an anti government agency. The stance which is well supported by the opposition.
It cannot be a coincidence that the attack on the Chief Justice and JSC comes immediately after the Chief Justice had caused the investigation of three Judges for various acts of gross incompetence and gross misconduct.  This is a carefully orchestrated move that is meant to cow the establishment including the Chief Justice and the JSC from inquiring into acts of misconduct against some senior members of the Judiciary. It is a shame that some people try to preempt the investigations which were instituted into the conduct of some judges.

Mrs Mabhiza commented that
“As the Ministry of Justice we are happy with the work that is being done by JSC and we support the stance of the Chief Justice that whilst the Judiciary is independent they must also be accountable.”

Judges must not view themselves as demigods who are beyond reproach.

The action of the few or the individual who penned the letter to the President of Zimbabwe reduced the weight of judgeship.
 Judges have a responsibility whose
Adherence to it helps to maintain public confidence in the impartiality of the judiciary.

It is a shame that the judges are resorting to public spats with each other , this is in violation of their Code of conduct and diminishes public confidence in the judiciary and injures our system of government under law.

The idea of pleasing the opposition by attacking the Very core of our beliefs in the rule of law.

Judges are bound by rules of reason. They should function consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.

So Judges must never reduce themselves as to the extent of fighting in the public domain.
A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. By dragging the whole bench to a public fight the judge undermines his office.

A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

By dealing with the cases of judges grievances in social media the judge will have acted improperly. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. So trying to extort another judge by spreading the cases on social media the judges would have been impaired to hold the office of the judge.
A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. So crying loud about strict measures applied on them and tough scrutiny regime employed by the Chief justice is indeed a failure in the making.

A judge should be sensitive to possible abuse of the prestige of office.
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the Adjudicative Responsibilities.
A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.

While Luke Malaba is being attacked for being strict on other judges those attacking him are forgetting that a judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.

Fighting corruption is a tough call.
Since judges exist to accomplish the essential goal of delivering justice to their fellow citizens, a vigorous ethical commitment should constitute a genetic trace of its professional code.
On the other hand, an irreprehensible ethical behaviour by the legal professionals, particularly judges, has an essential role in the legitimacy of the judicial system, as necessarily based on a bond of trust with the involved community. Ethics, as Rodolfo Vigo explains, endorses Democracy, since it implies an open debate about professional conducts, besides inspiring magistrates to go far beyond the mere obedience to their functional duties as prescribed by Law. Ethics strengthens and reinforces Judicial Independence by promoting the implementation of a culture of excellence, the ultimate ambition of any judiciary.
The Chief Justice Malaba must continue to run the project ‘Judges against Corruption’, a concrete commitment to enhance judicial integrity and to fight corruption, one of the worst scourges of our societies.

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