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Speech by the Hon. Mrs Justice Rita Makarau Judge President of the High Court of Zimbabwe on the occasion of the opening of the 2007 legal year, Harare High Court, 15 January 2007
Mrs Justice Rita Makarau
January 15, 2007

I am humbled by this opportunity afforded me by the Chief Justice to address all of you on his behalf and on behalf of the entire Judiciary on the occasion of the opening of the legal year for 2007. I acknowledge with gratitude all present in this courtroom. In particular, I wish to acknowledge the presence of

The Minister of Justice,
The Minister of Anti-Corruption and Anti-Monopolies,
The Permanent Secretary in the Ministry of Justice, Legal & Parliamentary Affairs,
The Resident Representative of the United Nations; Dr. Zacharios
Representatives of the Commissioner of Police;
Representatives of the Legal Fraternity of Prisons;
Members of the Legal Fraternity and
Members of the media

6 July 2006 saw the much-deserved elevation of Justice Garwe to the Supreme Courts as Judge of Appeal and my assuming the post he had vacated. I wish to thank all of you who have wished me well in my new post. It is a post that I have assumed with some trepidation as I take the reigns from a long line of eminent jurists and administrators who have graced the High Court Bench. Those of who keep their history will recall that prior to independence in 1980, Sir Vincent Quenet, Justice MacDonald and Justice Lewis were the Judge President in that order. Justice Lewis continued as Judge President until 1982 when he was succeeded by Justice E A T Smith. Justice Smith served in the post for only one year to give way to Justice E. Dumbutschena in 1983. After Justice Dumbutschena came Justice Sandura in 1984. The Chief Justice in 1998 and Justice Garwe in 2001. I therefore am fully aware of the size of the shoes that I have to fill.

Low level of funding to the justice delivery system
2006 was a particularly difficult year for the whole country and we in the judiciary were not spared. While over the years the funds allocated to the judiciary have dwindled against an increase in the workload, the funds allocated for 2006 were significantly inadequate. For the first time in history, the High Court in Harare could not travel to Masvingo on circuit in the third term to hear the hundreds of criminal cases that have been awaiting trial in that province for the past two years. At the last count in August 2006, Masvingo had 104 murder trials awaiting trial.

Courts ran out of basics and the constant response from the Ministry of Justice Legal and Parliamentary Affairs where the budgetary vote for the judiciary is housed was that it was not in funds.

Judging from the paltry funds that are allocated to it, it is my view that the place and role of the judiciary in this country is under-appreciated. Phrases that it is the third pillar of state or that it is an integral part of a democratic state are often used as appropriated fora by politicians and social scientists and have become clichés whose real meaning is not sought after or given effect to.

I wonder how many of us here present have really given thought to the importance of an efficient and impartial justice delivery system to us as individuals generally and as Zimbabweans in particular and on a practical as opposed to a concept basis. As a people, Zimbabweans have been described as resilient and innovative. When shortages of certain grocery items manifest in the local supermarkets, we shop in neighbouring countries. We have managed to avoid what we perceive as shortcomings in the local education system by sending our children to schools and universities in South Africa, Australia, United States and the United Kingdom. When we need complex medical procedures and attention that the local hospitals cannot now provide, we fly mainly to South Africa but sometimes to the United Kingdom or the United States. Yet, when we have to sue for wrongs done to us, we cannot do so in Australia and South Africa and have to contend with the inadequately funded justice system in this country.

When someone breaks into our houses and steals our hard earned assets, we cannot call the well resourced police force of a neighbouring country to come and investigate the offence. Worse still, when we are suspected of having committed an offence, either rightly or wrongly, we are to be held at local police station cells where due to under funding, some conditions have fallen to inhuman and degrading levels. If placed on remand, we are to be held in the local prison where the conditions are no better. Innovative as we are, we are yet to find a way to be held in a prison in Pretoria or Cape Town to avoid the conditions in the inadequately funded cells at home.

For justice delivery, we cannot escape the local system no matter how rich or influential we are. We cannot substitute the justice delivery system in Zimbabwe. we cannot escape the inefficiencies created by lack of adequate funding. We can only work on it to rid it of the inefficiencies by funding it at appropriate levels so that it regains its position as a torchbearer on the subcontinent.

We are aware that the Ministry of Justice Legal & Parliamentary Affairs has over the years been making representations on behalf of the judiciary and prisons to Treasury for funding of these institutions at appropriate levels. We are also aware that the Ministry's budgetary allocation over the years has been amongst the lowest yet it houses critical institutions in the justice delivery system.

It is not in the tradition of the judiciary to publicly speak on any issue including calling attention to needs. The unique feature that sets the judiciary apart from other State organs, that of carrying out its mandate without fear or favour, necessarily prevents the judiciary from crying out when it is in need lest help comes from undesirable sources. I am breaking that tradition briefly and for today only to agitate for better funding to the justice delivery system as a whole, generally and in particular, to the judiciary. It is wrong by any measure to make the judiciary beg for its sustenance. It is wrong to make the judiciary beg for resources from any other source. Yet, if I do not do so today, the judiciary shall continue to operate without computers, without adequate stationery and shall continue to use libraries that the Chief Magistrate has aptly described as varying only in their degrees of uselessness.

Witness expenses and accessories
When I agitate for better funding to the justice delivery system, I am not only agitating for better remuneration for judges and support staff or limiting myself to the provision of material resource for use by judges. I will give two examples of my other concerns.

In his annual report to the Chief Justice for the year 2006, the Registrar commented on the amount we pay per day to witnesses who testify in criminal trials in the High Court. We pay them $5.00 for each day spent in court or waiting to go to court!

We all understand the difficult times that the country is undergoing and how treasury cannot cope with the demands made on it. However, for us to pay a witness $5.00 per day brings the administration of justice to disrepute. It is also a downright insult to the witnesses, most of whom are simple rural folk from around Zimbabwe who will be justified in thinking that their testimony was worthless if they were paid only $5.00 for it. It may be worth the while for the policy makers to debate whether the payment of witness expenses should not be scrapped altogether if it has become an expense that treasury cannot bear.

Due to the shortage of funds, at times witnesses have appeared before a judge hungry. This situation came to light when one witness, bravely informed the court that he could not testify as he was weak from hunger. The trial had to be stopped and at that stage it emerged that our registry did not have sufficient funds to pay for the meals of witnesses who come from out of Harare.

The same goes for the payments made to assessors for sitting in criminal trials. The amount paid them per day is a pittance that is not commensurate with their importance in the justice delivery system. Invariably, they are the most senior members of the court and come with a wealth of experience and represent the views of the community during the trial. The reward they get for so doing detracts from their importance.

Corruption
As I have said above, conditions of service for judges and for support staff are an ongoing cause for concern.

Today, I wish to highlight the conditions of service of support staff and how this is negatively impacting on the administration of justice.

Reports have reached my office and the office of the Chief Justice that support staff in the courts are engaging in corrupt practices. Whilst these reports are alarming, one can understand without excusing such conduct. Salaries for support staff are not commensurate with their place in the administration of justice system. Custodians of court records, processors of judgments and court orders can work great mischief to the litigating public. Access to judges is but through the support staff and may be blocked or fast tracked. Records may be tempered with or may go missing for short or long periods of time. Important court notices may not be delivered on time or at all.

Support staff play a vital role in the administration of justice and while they remain civil servants, they are civil servant in a very vulnerable organ of the State. In his speech to mark the opening of the legal year in 2005, the Chief Justice reminded all judicial officers that within the judiciary, the level of tolerance for corruption is zero. I would want to remind all that the level of corruption still stands at zero. Due to the reports that we have received concerning the practices of some of the support staff, strategies have been put in place to tighten our administrative systems and to weed out members of staff whose practices may not be above board.

For the benefits of the public and some misinformed legal practitioners, it may be necessary to dispel two misconceptions that may have been created by our support staff.

1. Judges are not influenced by their clerks or by registry staff or by anybody else for that matter in the content of their judgments or orders. The relationship between a judge and support staff is generally not one of confidantes. Reports have reached my office of how some support staff may have been fooling members of the public that for a reward, they will make the judge grant or dismiss their prayers. Support staffs do not have such influence.

2. Judges are individually responsible for the delays in handing down their judgments. Support staff cannot tell or influence a judge on which matter to pass a judgment before the judge is ready to do so. Reports have also reached my office that some registry staff may have been giving out to litigants that for a fee, they can have a long delayed judgment written.

New developments
During the last half of 2006, we began experimenting with a fast track system of dealing with civil trials in the Harare High Court. This saw the disposal of 91 cases in the months of September, October and November. Of the 91 cases completed, 89 were completed to judgment level leaving only two judgments to be handed down this year. We are quite pleased with the results and have since made the fast track civil court a permanent feature of the court roll. I want to thank legal practitioners and the litigating public for making this experiment the success that it was. I also wish to publicly commend the industry of the entire High Court Harare bench during the last legal year. This, despite the hellish conditions they had to operate under. In particular, I was humbled by the industry of the team of the three judges who presided over the fast track civil court and would at times sit in court will into the evening to complete cases. These are Justices Uchena and Kudya with Justice Bhunu as the senior judge of the team.

Legal practitioners and the litigating public must brace themselves for a further no-nonsense approach to litigation as another tem of 3 judges take charge of the fast track civil court for the first term of 2007 with Justice Hungwe as the senior judge and Justices Chitakunye and Chatukuta as his team mates. For greater efficiency in the disposal of cases that come before us, we are introducing other changes that will unfold during the course of the year.

Criminal cases
We have managed to accumulate embarrassing backlogs in our criminal division. Delays of four or more years are now fast becoming the norm rather than the exception. Trials are set down and fail to take off for a number of reasons adding to the backlog. In his report to the Chief Justice, the Registrar expressed the need on the part of the courts, prisons, the police and the Attorney-General's office to synchronise their operations. He proposed the setting up of a joint Liaison Committee that should meet regularly and report on progress. I fully support his suggestion as the only possible way forward. Acting alone none of us will make any headway in reducing the backlog or in stamping out crime.

In its comment, the Herald of Friday 12 January 2007 put it in language that I wish to borrow when it said "it is important to understand that the police arrest on suspicion and not on conclusive evidence, which is why the likelihood of wrongful arrest is also high".

The Criminal Justice delivery system is neatly structured in such a way that the police will arrest on suspicion, the Attorney General will accuse on prima facie evidence, the legal fraternity will defend at all times and the courts will convict on proof beyond reasonable doubt. Each office has a role to play and when the system fails to play out in full, the suspect or accused person is entitled to his or her freedom.

CONCLUSION
While 2006 was a difficult year for us in the judiciary, our spirits were somewhat lifted by efforts from well wishers who engaged us in various discussion on enhancing the capacity of the judiciary and in reiterating what we have always believed that the fortunes of Zimbabwe cannot be turned without an impartial, vibrant and efficient justice delivery system. To all those who dialogued with us in 2006, I say thank you for your support.

Finally, I would like to command the cordial relationships that exist between the courts and the legal profession, the police, prisons and the office of the Attorney General. Dialogue has already been opened between my office and the other four offices for the enhancement of justice delivery in the High Court. Let mutual respect continue to be the force that binds us. Let the strengthening of the justice delivery system be our rallying call and let respect of the rule of law and the rights of all Zimbabweans be the principles that guide us and let the best interests of the people of Zimbabwe be our common vision and justice our common goal.

With these few remarks, I pronounce the 2007 legal year open. The Court will now stand while Reverend Eben Nhiwatiwa of the United Methodist Church leads us in prayer. After the prayer the court will adjourn to the courtyard where refreshments have been laid out for us.

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