- Last Updated on 16 April 2013
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THE country's judiciary has recently been in the spotlight due to perceived persecution of independent judges, most notably, Justice Charles Hungwe, and the disrespect of officers of the court through the recent incarceration of Human Rights Lawyer Beatrice Mutetwa.
(Justice Charles Hungwe)
The issues relating to the two Judicial Officers cited above have made the public to question the independence of the Judiciary, as a critical arm of government, and the last recourse of citizens on matters where they feel hard done by the State or other citizens.
Mtetwa's case, has also led to debate on issues of the conduct of the police and prosecuting authorities with some alleging that prosecuting authorities are driven by political vendettas more than the pursuit of justice.
The Crisis in Zimbabwe Coalition, recently caught up with the Director of the Africa Program for the Geneva-based International Commission of Jurists (ICJ), Mr. Arnold Tsunga to discuss issues related to the Judiciary in Zimbabwe.
((ICJ), Mr. Arnold Tsunga)
The ICJ, is an international human rights non-governmental organization, with a standing group of 60 eminent jurists (judges and lawyers), including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human Rights and President of Ireland, Mary Robinson, who was the president of the Commission from 2008 to 2010.
It undertakes advocacy and policy work aimed at strengthening the role of lawyers and judges in protecting and promoting human rights and the rule of law.
Mr. Tsunga asserted that in his opinion, the Judiciary has largely been the weakest branch of Government, because of serious divisions along politically polarized lines.
Tsunga unpacked what he considered to have been some of the ills bedeviling the judiciary and justice delivery system in the country as well as the measures that have been taken to remedy the same.
"The legal profession - both judges and lawyers - constituting the Judiciary, without speaking with one voice became manipulated by the other branches of government, especially the Executive which is constituted by the politicians, € said Tsunga.
Tsunga said that prior to 2009, the legal profession - both judges and lawyers were so polarized that they were barely talking to each other.
"What was basically happening was that the legal profession was shouting, naming and shaming the judiciary as a complicit and compliant institution that had been captured by the politicians, but at the same time the judiciary were not listening to what the lawyers were saying, € noted Tsunga.
According to Tsunga, the Executive branch of government comprising of politicians, were responsible for entrenching conflict between the judges and the lawyers and the result was that the Judiciary became the weakest branch of government and could not exercise its checks and balance role in Zimbabwe.
"The weakness of the Judiciary was not in the interest of anyone and certainly was not in the interests of the democracy of this country. So what ICJ did, working with the Law Society of Zimbabwe initially, was to convene the first Bar Bench Colloquium in September 2009 in which we were targeting to make the legal profession speak with one voice around the independence of the Judiciary € said Tsunga.
He noted that although the inaugural Bar Bench Colloquium was an acrimonious gathering it was nevertheless a very useful dialogue event that has, in subsequent years, moved towards issue identification and creating a roadmap to resolve challenges that affect the delivery of justice.
Tsunga said the Bar Bench Colloquium created a basis for self-introspection on the part of the judiciary and the legal profession in order to give them a chance to collectively understand their role to preserve independence of judiciary as a necessary component of providing checks and balances and bringing about accountability.
The end product of the first Bar Bench Colloquium was the drafting of a concluding statement that identified four key elements that needed to be carried out in the next 2 to 3 years for the Judiciary to be able to deal with many of the problems that had been identified.
"The first one was to develop a strategy for the Judicial Service Commission, the second one was to develop a Code of Conduct for the Judiciary, the third was to complete a process of Judicial Needs Assessment so that there can be a clear understanding of the needs that must be dealt with for the Judiciary to function efficiently and for the courts to be able to re-establish themselves since at that time there was a big backlog.
"And the fourth one was the issue of the continuous legal education of the legal profession particularly the Bench and the lawyers so that the quality of technical application and delivery capabilities as a service that was in the law society could improve, € said Tsunga.
According to Tsunga, these four key components emerging from the first Bar Bench Colluoquim of 2009 have been systematically addressed.
"The JSC developed the Judicial Service Commission Strategy in 2011/12; the Judicial Code of Conduct is now up there and the system of continuous legal education for the Bench is in full implementation mode with ICJ and the LSZ working to develop the curriculum for continuous legal education, € said Tsunga.
He also pointed out that they had managed to convince the Minister of Justice and Legal Affairs, Patrick Chinamasa, to issue a statute that makes continuous legal education compulsory for lawyers.
Consequently, it is now a legal requirement and obligation that any lawyer who joins practice now must go through continuous legal education if they are to retain their practicing certificate.
"I think we have done a good job which is very strategic in terms of giving a clear roadmap and also supporting both the Law Society and the Judiciary to follow that roadmap, € said Tsunga.
Tsunga noted that prior to 2000, no one had any serious issue with the courts,
"If anything our courts were seen as highly independent, very technically competent and their judgments were followed elsewhere in Africa and the world as excellent jurisprudence that created a basis on which interpretation of standards was done. €
"However, from 2002 onwards, our courts were seen as pariahs, as unworthy institutions that have imbedded themselves with the politicians and they are unable to protect human rights. But the law had not changed, so what had changed were the people, € said Tsunga.
The ICJ Director, did not delve into specific details around ongoing cases of Justice Hungwe and Lawyer, Beatrice Mtetwa, but expressed the view that the Judiciary, still had some way to go in meeting the standards that had been attained pre-2002, when the Zimbabwean Judiciary seemed to be the standard bearer in the region.