ON Monday Judge President Rita Makarau opened the High Court legal year in Harare and made a number of accusations against lawyers.
Our News Editor Constantine Chimakure on Tuesday interviewed Law Society of Zimbabwe president Beatrice Mtetwa on Makarau’s utterances and other issues on the rule of law. Below are the excerpts from the interview.
Chimakure: What is your understanding of Justice Makarau’s speech when she opened the High Court legal year?
Mtetwa: The opening of the legal year is meant to give the profession a chance to take stock of itself. I find it unfortunate that the Law Society as a representative of the legal profession is not involved at all in the programme.
In other jurisdictions, for instance, you will find out that the law society or representatives of the legal profession are given a chance to also speak so that they give their view of how they perceive the justice delivery system in the country and I always find it extremely unfortunate that the profession is represented by what judges perceive to be the position.
I feel very strongly that like everywhere else when the legal year starts, representatives of the profession should be given the chance to speak on behalf of clients of that sector.
The Judge President’s speech was unfortunately one-sided. It gives the impression that members of the judiciary consist virtually of paragons of virtue, where the judges do no wrong, where all the problems that are there are caused by other persons and that the judiciary has no contribution at all to the failures that we experience from time to time in the justice delivery system.
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There are problems right across the board in the justice delivery system. One of the major problems we have is that the majority of judges do not keep time and as a Law Society, we have brought this problem to the attention of the Judge President from time to time.
There are also problems with judgements. There are judges who do not deliver judgements for far longer than the six months the Judge President and the Chief Justice (Godfrey Chidyausiku) have set as guidelines for handing down of judgements on simple and straightforward matters.
The arrest rate is not keeping pace with prosecution in the majority of cases. When you arrest en masse, such as in Chiadzwa, and keep people in custody in prisons which are already overflowing, you are creating a problem of overcrowding in prisons that are already overstretched with no food and basics such as prison uniforms.
The Judge President acknowledged the backlog and for us as a Law Society the backlog constitutes a serious indictment on the operations of the Attorney-General’s office. Anyone who has got eyes to see will note that resources are channelled to one type of case…
If you look at the so-called political cases, there are no shortages of cars, no shortages of prosecutors, fuel is always available, and prosecutors travel from Harare to Mutare to prosecute one case that can be dealt with by a prosecutor in Mutare.
Chimakure: What is your position on assertions that lawyers lacked professionalism in the way they handled electoral petitions last year?
Mtetwa: It is unfortunate that the Judge President used language that appears to blame the Law Society for alleged unethical behaviour by the legal practitioners who handled election petitions. If a lawyer misbehaves in court, for instance, the court has powers to deal with such an errant lawyer such as through contempt proceedings.
If a lawyer, for instance, brings proceedings that ought not to have been brought, the court has the power to order that the lawyer personally pay the cost of that ill-advised litigation. If the perceived misconduct is of a grave nature, these procedures can be accompanied by a referral of the perceived misconduct to the Law Society for investigation.
As a Law Society we have not received any request from the courts to look into the conduct of any of our members who handled the election petitions and it is difficult to understand how the Law Society could have been expected to react to perceived unethical behaviour that was never brought to its attention in the first place.
Chimakure: Are you suggesting that Justice Makarau’s allegations against the lawyers were misplaced?
Mtetwa: I am saying that as Law Society, we do not know whether or not her complaints are justified as we were never asked to look into these.
In addition, the court has the power to deal with any lawyer who will have brought a case for political reasons, not legal reasons, before it either through contempt, through costs or by referring the matter through the registrar to the Law Society to investigate whether or not that member is guilty of one form of misconduct or another.
Chimakure: Justice Makarau was bitter that some lawyers have the habit of criticising judges’ rulings and were disrespectful of them. What do you say about the assertions?
Mtetwa: It’s unfortunate that the Judge President implied that judges and their judgements are above reproach. Zimbabwe has a constitution which has a declaration of rights.
Zimbabweans are, therefore, entitled to have the freedom of speech that the constitution allows them and this includes lawyers.
Lawyers are clearly entitled to criticise judgements where they believe that those judgements do not accord with the provisions of the law or are not following precedent.
Lawyers are entitled to look at, for instance, the current cases where we have persons who were admittedly unlawfully kidnapped, kept incommunicado for long periods of time, allegedly tortured and medical evidence has confirmed torture on most of those who complained of torture and as a legal profession we are entitled to be extremely concerned that the judiciary does not appear concerned with the violation of one of the most cherished rights in our constitution – the right to liberty.
It is of course wrong to criticise judges in terms that are demeaning to their office, but as is always said, respect has to be earned.
It is however ironic that whilst the Judge President in Harare was castigating lawyers for criticising judges’ decisions, the Deputy Chief Justice in Bulawayo was criticising rulings of the Sadc Tribunal.
It is difficult to understand how it is okay for judges in Zimbabwe to criticise decisions of other Tribunals whilst Zimbabwean lawyers are expected to keep mum on decisions they perceive not to accord with their understanding of the law.
It is also extremely unfortunate that the Judge President believes that she can castigate lawyers at a forum where they have no right of reply but seeks to deny lawyers the same right.
Furthermore, and as I have already stated, judges wield considerable power and if any lawyer makes injudicious utterances outside fair criticism, a judge affected by such utterances can institute contempt proceedings.
This is what was done when Patrick Chinamasa was perceived to have criticised a judge and his judgement in terms that were outside the usual acceptable terms.
Blanket threats on unnamed legal practitioners on perceived unparticularised attacks in my view will not help solve the problem as the concerned legal practitioners do not know that they are the subject of the attacks, they do not know what, precisely, it is that got the Judge President to issue threats in the terms that she did.
We are of course concerned that terms such as “enough is enough” and “we have turned the biblical cheek several times” imply that some form of sanction against legal practitioners is in the pipeline.
This would be extremely unfortunate as our law is rooted in making decisions after hearing both sides of the story.
The legal practitioners concerned have not been heard, the Law Society is in the dark on the precise nature of the complaints and it is the litigating public that will ultimately suffer from this kind of attack, as lawyers will be frightened to appear before a judiciary that has threatened them.
Chimakure: You have spoken about the right to liberty: in the view of your society do you think the judiciary has done enough to uphold it?
Mtetwa: The view we take, as a council, is that the protection of rights ought to be uppermost in the mind of everybody involved in the justice sector. Where allegations of infringement of rights are made, the judicial system should intervene and offer effective remedies.
We currently have problems where technicalities will be used to avoid dealing with real substantive issues where serious breaches of rights that the constitution gives to the people of Zimbabwe would have been infringed, which is most unfortunate. It is a basic tenet of Constitutional law to seek to protect basic rights such as rights to liberty, etc ahead of any technical arguments and this is what we expect from the judiciary.
Where one gets some kind of relief, we have a problem where court orders are deliberately flouted and not complied with by the executive and the judiciary has been weak in enforcing its own orders. I strongly believe that the Judge President ought to have alluded to the failure by the executive to abide by orders of the court as this severely undermines the judiciary and the entire justice delivery system.
I also feel that the Attorney-General’s office has failed to use its powers in an even-handed manner and we have seen that office zealously seeking to prosecute persons whose rights have been infringed without inquiring into those infringements.
We have seen that office even abusing powers, for instance the court ordered on December 24 that the abductees be taken for medical treatment at the Avenues Clinic and the Attorney-General’s office appealed against that decision.
The mind boggles how one can deny a suspect the right to medical treatment, when a convicted person who would have committed the most heinous crime is entitled to medical treatment.
The Attorney-General’s office is supposed to execute its prosecutorial duties in an even-handed manner where there is equality before the law.
With recent events, it is clear that crimes committed by state agents will not be investigated with the tenacity and vigour seen where opposition politicians and civic society activists are concerned.
Chimakure: Doesn’t this give credence to allegations that the judiciary has been bench-packed by the government and that the Attorney-General’s office takes instructions from the government?
Mtetwa: It is difficult to say that because one doesn’t know the political affiliation of the judges and the people at the Attorney-General’s office although the Attorney-General has since declared his political affiliation. One assumes that when someone dons the judicial garb they enter the courtroom as impartial arbiters who will not use their positions to advance their personal benefits.
But certainly the perception is that the application of the law and upholding of rights has not been even-handed and that generally where a case is perceived to have political connotations, the majority of our judges are reluctant to forcefully, unequivocally and without apology seek to uphold the rights enshrined in the constitution.
Chimakure: I realise that you didn’t fully answer my question on lawyers disrespecting judges and the vilifying of judges in foreign media?
Mtetwa: With regards to the normal etiquette that is given to judges in the corridors and conduct of lawyers, traditionally the Chief Justice and the Judge President issue practice directives that guide the profession as to what is expected of them in certain circumstances.
Some of the perceived failures on the part of lawyers might be due to sheer ignorance of the expected professional etiquette.
Chimakure: What is the nature of relationship between the Law Society and the judiciary because it appears that there is a dearth of communication between the two?
Mtetwa: Traditionally the Law Society had a good relationship with the judiciary, but things changed when I became president over two years ago.
When I became president I invited all stakeholders to work with the profession and there are those who did not respond, among them the judiciary. We have had collaborative meetings with those who showed willingness to work with the Law Society and have had workshops with magistrates and prisons.
We have invited members of the judiciary to our functions and regrettably, very few turn up.
Chimakure: Criticism of judges in foreign media?
Mtetwa: You are of course aware that Zimbabwe, except for a few weeklies, has no independent media to speak of and the judiciary regrettably, has had a hand in ensuring that publications that were shut down remain out of circulation.
On current affairs, we do not have the local media enquiring on developments and invariably it is the foreign media that follows up what is happening in Zimbabwe.
If Zimbabwe had a diverse and vibrant media, I am certain that our members would want any critique of court decisions done locally for the domestic audience which consumes what our judiciary dishes out.
Unfortunately, on issues that develop on a daily basis, the local populace, including lawyers, have no access to local media which is prepared to carry robust debate that is different from what our rulers wish to hear.
You are all aware that the state media only has a few lawyers who are allowed to comment on issues pertaining to the judiciary and this is precisely because the views of those lawyers are predictable and are in sync with views of the executive.
Chimakure: The Judge President also shared her dreams and hopes for the future of the High Court. What are your dreams and hope for the future of our justice delivery system?
Mtetwa: As a lawyer who uses the courts regularly, I indeed also have hopes and dreams. I dream of a justice delivery system manned by men and women who represent the entire spectrum of Zimbabwean society, who are chosen through an all-inclusive transparent process which ensures that we have the best legal brains interpreting our rights in a fast changing world.
I also dream of the day when resources will be channelled towards the improvement of justice delivery where every province of Zimbabwe will have a High Court, where litigants will access justice easily and affordably, where court infrastructure will be maintained impeccably to enhance justice delivery, where the legal profession will in its entirety work towards the attainment of the rule of law, good governance, a socio-economic environment geared to benefit all regardless of their party political affiliations.
I dream of the day when our judges will be given the respect they deserve by ensuring that they are adequately remunerated through proper legal and constitutionally sanctioned channels that will not raise perceptions of being bought. I dream of a legal system that will restore to the people of Zimbabwe the dignity they deserve.
