By Dr Masimba Mavaza | Zimbabwean judicial officers are feeling the heat of disrespect and unreasonable interference by the police and prosecutors. To think that the prosecutors are supposed to be lawyers is a farfetched thought.
What Zimbabwean magistrates and prosecutors are seeing is a total vindictive unreasonable managers and prosecutors who have become legal stooges and lawful zombies. Judicial interference is the actions of courts or judicial officers in matters that are interpreted by some as beyond their constitutionally established role. Judicial activism is a ruling issued by a judge that overlooks legal precedents or past constitutional interpretations in favour of protecting individual rights or serving a broader political agenda. The term may be used to describe a judge’s actual or perceived approach to judicial review.
It should be made very clear that judicial function is totally distinct from administrative duties. If this distinction is not carefully observed it will lead not only to interfering with due administration of Justice but total loss of confidence in the justice delivery process. The Zimbabwean justice system is one of the pillars that support our democracy. The rule of law gives people a legal recourse to hold those in power to account and putting sanity in the legal and social system. The practice of law either as a prosecutor, judge, magistrate or advocate is a noble practice which makes law a way of life and not only a course.
The Zimbabwean justice system is one of the pillars that support our democracy. The rule of law gives people a legal recourse to hold those who wrong them confidence and hope to face tomorrow. Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.” Baptiste a French Reverend resigned. The purpose of law in a free and democratic society is to liberate, not to restrain. Our legal system and its independence from administrative interference helps contribute to a just society where power is constrained so that but this is a fragile system, built on trust in its legitimacy and full trust of those who are sworn to execute the law. The magistrates and prosecutors must be given the freedom of their courtrooms so that they exercise their duties without fear of embarrassment or unreasonable interference by those who have no understanding of the intricacy of the legal machinery. The movement of justice is not a paten it is born of free will and free thought.
Judicial officers are created by the Constitution and at the lower courts have their mandate from the Magistrates Court Act. Magistrates work can only be scrutinised or reviewed by judge depending on the rank and nature of sentence. The pervasiveness of a judgement or a sentence is not understood by the police officer whose legal qualification and experience is not a third of the judicial officer sitting on the seat of execution of justice. There is no way a Magistrate must be answerable to the police. If the magistrate’s judgement is so shocking and unreasonable, a higher court should review. If the higher court does not agree they correct not persecute the magistrate. Magistrates must not be persecuted for the incompetence of the prosecutors and the police. We are quite aware that, the inefficiency of the police and the prosecutors has not stopped politicians from trying to place their thumbs on the scales of justice. The message to those seeking to interfere in the administration of justice must be clear. Take your stinking paws off the justice system you damn, dirty politicians. Because thumbs are pressing on the scales all too often and the attitude of those involved is a casual indifference to the long-term damage they are causing. Let’s start with the low-hanging fruit — the Nemadire scandal. There can be no clearer example of attempted administrative interference. The facts of the case are that an accused entered Zimbabwe, at the Airport she was approached by police officers who were carrying her bag and said that the bag was hers and it contained five kgs of Cocaine. She was dragged to court on the charges of dealing in dangerous drugs alternatively possession. In Zimbabwe possession is a fineable offence while dealing is a jailable offence. The police were over excited with a big find and they forgot the basic investigative rules. There was no evidence of possession neither was there evidence of dealing. Accused was represented and accused pleaded in the alternative. The court understood as all would have that when the police charge you with an alternative it means they do not have a strong case or no evidence. How can a seasoned officer collect a bag and claim that it was yours. That was the inexperience of the police and they hoped the court to bolster their case. This then passed through the sloppy prosecution who did not make their case water tight. They were emotionally exhilarated by the fact that cocaine was found. Who does that? The magistrate was faced with a dilemma. If the case goes to trial possession was going to be difficult as the police had broken the chain of possession. So in the best interest of justice he accepted the plea in the alternative, which he proceeded to convict and sentenced as to the guide lines. The pressure, which the police do not even bother, denying anymore, was constant. It came from the prosecutor’s office, do these prosecutors know that the court is not the arm of the prosecution. If you bring a dead case to court magistrates are not the Christ, they cannot resuscitate a dead case. Prosecutors always walk into court unprepared hoping the court to assist them in bolstering their cases. The prosecutor and the police attempted to exert influence on a judicial proceeding. So much for the independence of the Public Prosecution Service, one could certainly be forgiven for being left with that impression that prosecutors are babies of magistrates, they look up to the bench to clean their mess.
There is a different case if the magistrate or prosecutor receives a bribe during the performance of that duty it’s another thing. It should never be assumed that he has been bribed simply because we don’t agree with an outcome of a matter. If we do so we run the risk of wrongly inciting the general public against our judicial officers. We also run the risk of effecting wrongful arrest thereby attracting civil suits against government. In the case of Nemadire the statute gives an option of a fine or 5 years imprisonment or both such fine and imprisonment. He gave both fine and imprisonment which imprisonment he wholly suspended for 5 years on usual conditions. Unless one is a repeated offender only then the court can sentence otherwise but the option of a fine should be given first. It is always trite that the starting point is the fine then if there are aggravation circumstances the court should move to another level of imprisonment or both. So given the above scenario what sentence was he supposed to give and from where. There is need to carefully study every scenario before action. The accused was charged with dealing alternatively possession of dangerous substances but was convicted of possession which carries a lighter sentence .Administrative work is usually punishable by disciplinary action and under rare circumstances does it amount to a criminal offence.
Taking a magistrate to a police station to explain his actions in a sitting court is embarrassing and demeaning. The police are not supervisors of the magistrates or prosecutors they must stick to police work and let magistrates do judiciary work.
If the rebellious attitude is coming from the police what do you expect the public to do. This mentality that any unpopular decision means that someone has been bribed must be condemned. Parliament makes laws, not the courts. This is hardly a controversial belief, but the truth. if the judgement is in accordance with the law then the police must take their bullying abusive nature to parliament not to a poor magistrate. The courts are committed to protecting rights that have flown out of interpretation of the scope of our police force. A sitting magistrate was smeared and the legitimacy of the judiciary and the judicial process was damaged — all because the police force was angry with the lenient sentence. But inappropriate interference in the justice system doesn’t follow strict legal lines. The proper procedures were followed, but the police disagreed and saw an opportunity to score political points. The last thing we should want is police deciding what sentences accused persons must get. But the prosecution and the police, adorably unaware of the hypocrisy they would set themselves up for, begged to differ. They placed their thumbs on the scales of justice and then magistrate and a prosecutor were arrested. The prosecution and the police are behaving badly and there is a huge cost. The legitimacy of our justice system is fragile. Pull on one thread and the whole thing can unravel. But, of late, our politicians are not content to simply tug at one golden thread. Instead, we have seen in 2017 a lawyer a prosecutor and a magistrate being arrested for granting bail. The lawyer Mr Wilson Manase and the Magistrate and a prosecutor al formed a fully constituted court were arrested, when will this end. This is a dangerous precedent that risks undermining an important democratic institution. Because, when the public loses confidence in the justice system, when prosecutions are built on politics and when we lose trust in judges, there will be no going back. We will be left slamming our fists in the dirt screaming in pain. The issues, with which they were dealing, as is the case with all the other issues that come before them, were issues of law. So magistrates must not be questioned at a police station for what they did in a constitutionally properly constituted court. The guiding principle is that they decide cases according to the laws and usages of this country, and not according to such political views, if any that they might happen to hold. We have nothing to learn on this issue from what is happening to our courts. The suggestion that magistrates’ reasoning should be vetted by Police is devoid of merit. True to their oath of office, which they take in public, they have to be free from police harassment. Vetting would imply that they might not comply with that oath. More fundamentally, police would open the door to political interference with the justice system. This would damage public confidence in their independence and impartiality. Many judicial decisions have political consequences but it is a quite different thing to say judges have made decisions for political reasons.
Our magistrates must be proud to say that they “have done nothing that the other courts would not have done in similar circumstances”. The interference is “both unprincipled and useless”. It would be unprincipled because it would be “an overt attempt to stuff the court with afraid creatures, It would be useless because “judges’ decisions are not influenced by their political views on police or prosecutor’s emotions or anything else,
We must always remember that judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers. Judicial independence serves as a safeguard for the rights and privileges provided by the constitution and prevent executive and legislative encroachment upon those rights. It serves as a foundation for the rule of law and democracy. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary‘s affairs. With this independence, the judiciary can safeguard people’s rights and freedoms which ensure equal protection for all.
The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary’s independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference
The abuse of power by judge’s magistrates and prosecutors must be checked by the administrative powers put in place within the judicial system. That is to say the magistrates must be subject to a review of their work by their superiors not by the police or prosecutors.
Again the Prosecutor General Hodzi was wrong to refer the prosecutor to police for breaking an administrative rule not a criminal law. A mere suspicion of corruption must not be taken as corruption. Let the prosecutors and Magistrates face disciplinary measures which are internal and not rushing to the police and the press for a purely administrative case.
The president of Zimbabwe is a lawyer and he is looking One day the president will crack the whip and it will be soon.