The MDC T welcomes the opening of the judicial year by the Hon. Chief Justice G Chidyausiku the head of the judicial arm of government as that practice is key in upholding the rule of law and heeds the hallowed doctrine of the separation of powers. This is very much unlike the anomaly that continues to happen in the legislative arm of government where the head of the executive arm of government continues to officially open legislative sessions despite the Constitution no longer requiring it and instead requiring him to now issue an annual State of the Nation Address. The embarrassing error of reading the state of the nation address for the second time in three weeks instead of an official opening speech is therefore understandable and clearly demonstrates the redundancy and untidiness of an official opening of the legislature by the head of the executive.
The MDC T applauds the generally commendable performance of the various courts that constitute the judiciary, in disposing of their caseload in very difficult circumstances of conditions of work that include dilapidated court buildings in many respects. The MDC T is gravely concerned by the inevitable undermining of the independence of the judiciary arising from the recent failure by the State to pay December 2015 civil service and other State officials’ salaries and the promised 13th cheque. Any failure to adequately remunerate judicial officers not only undermines the independence of the judiciary but also impedes justice delivery. The MDC T therefore calls upon the government to urgently adopt measures that secure the salaries of all officials paid by the State in the judicial system and improves their general working environment as it cannot now rely on donor support as the Danish Embassy which supported courts construction closed in Zimbabwe.
The MDC T welcomes the Honourable Chief Justice’s exhortation to the police to enhance transparency and accountability by sharing with the judiciary crime statistics. The MDC T is concerned by the opaqueness of police dealings which is manifest even in the Police Commissioner General failing to ever have an annual report tabled in Parliament in terms of section 13 of the Police Act Chapter 11:10 which would also no doubt assist the judiciary. The MDC T therefore calls upon the police to remove its cloak of opaqueness, in the interests of justice and share crime statistics as required.
The MDC T is surprised that the Honourable Chief Justice included the police among those key players of the justice delivery system that the judiciary has enjoyed cordial relations with when the one of the previous year’s unfortunate blemishes was the unprecedented and contemptuous public attack on and disdain of the courts by a senior police officer in relation to the Honourable High Court’s decision on illegal spot fines. The MDC T hopes that the Zimbabwe Republic Police has since learnt of the unlawfulness of such conduct and in any event implores the Attorney General to assist it to understand its responsibility to respect the judiciary’s authority.
The MDC T applauds the judiciary’s efforts to decentralize and devolve the High Court to other major centres beyond Harare and Bulawayo in keeping with the principle of devolution in the Constitution. It however implores the Judicial Service Commission to prioritise Hwange in view of its 300 to 400 km distance from the Bulawayo High Court in comparison to the approximately 200km radius respectively between of Masvingo, Mutare and Gweru with either Harare or Bulawayo High Courts.
The MDC T is also pleasantly surprised that the Honourable Chief Justice noted few reports of the Zimbabwe Prison Services failing to transport prisoners for court sittings, given the inadequate funding by the fiscus of the Prisons and Correctional Service. It implores the Executive to fund the services adequately including the community service programme which received no allocation from treasury as well as the movement of juvenile offenders to Hwahwa Juvenile prison instead of them languishing in adults’ prisons due to lack of transport.
The MDC T welcomes the Honourable Chief Justice’s opening of dialogue with the Law Society rather than unilaterally deciding to bar junior lawyers from the higher courts. The MDC T is concerned about the inhibitive effect such a measure would have on access to justice by poor litigants as its logical conclusion may be that self actors who cannot afford lawyers would not then be allowed to appear before the higher courts.
While the MDC T salutes the Constitutional Court for its strident efforts in clearing its caseload it is disturbed by the one and half year delay in concluding cases and the inordinate number of reserved judgments and court orders without reasons. The MDC T laments that the government’s unwillingness to implement the Constitution is the key cause of an avoidable increase in constitutional court applications. It warns that these constitutional challenges are going to increase with increased public constitutional awareness, thereby spawning a veritable constitutional crisis.
The MDC T sees no reason why the stand alone Constitutional Court, physically separate from the Supreme Court as established by section 166 of the Constitution should wait for the four more years envisaged by the 6th Schedule to the Constitution. The reality of constitutional justice as explained by the Honourable Chief Justice demands it, and the 6th schedule’s wording permits its operation now.
The MDC T therefore implores :
The Attorney General to advise his client the government on its obligation to urgently and robustly implement the Constitution in order to avoid unnecessary Constitutional Court litigation, and in any to event concede the to unconstitutionality of its client’s actions and desist forthwith from defending the indefensible actions of his client
The Judicial Services Commission to interview more judges for appointment to the Supreme Court so that the there is a sufficient complement of 5 judges to conduct Constitutional Court duties exclusively while in the meantime appointing acting Constitutional Court judges
The Judicial Service Commission to make all haste to promulgate the long outstanding rules of the Constitutional Court, as well as review all court rules to accord with the Constitution and to address the gaps such as the disposal of dormant cases the Honourable Chief Justice mentioned
The Judicial Service Commission to implement a programme of training of all judicial officers in all courts below the Supreme Court on the to exercise of their new constitutional dispute jurisdiction
The Judicial Services Commission to interview and appoint judges to the Electoral Court so that it ceases the unconstitutional practice of appointing High Court judges to more than one court which is specifically prohibited by section 183 of the Constitution
The Judicial Service Commission to implement its Code of Conduct for judicial officers in order to avoid relying only on the introspection of low performing judges that the Honourable Chief Justice mentioned, as well as to deal with the scourge of corruption he also mentioned.
Finally, the Executive to allocate sufficient funding to the Judicial Service Commission as required by section 325 of the Constitution and in a manner that respects its independence.
Fungayi Jessie Majome MP
MDC T Secretary for Justice, Legal and Parliamentary Affairs
January 2016