Last week we identified some key challenges for the judiciary and made some recommendations.
DZIKAMAI BERE & PROSPER MAGUCHU
We now need to deal with the question of what stands in the way of a comprehensive judicial transformation programme.
In doing that, we step back a bit and reflect on the context in which these reforms are being proposed and in which they will be implemented. We believe these reforms must be undertaken within the broad range of a number of transitional justice measures.
In transitional justice practice, it has always been argued that the best case scenario for comprehensive institutional transformation programmes is when there is some sort of political transition. This ranges from major paradigms such as regime changes to the minimum emerging trend of power-sharing governments. In our context there has been no political transition. Because of that, there is an ongoing debate on whether we should even be talking about transitional justice in Zimbabwe.
Many feel it is senseless to ask the same powers that created conditions for impunity to work against their own creation. And if these powers seem to agree to any changes to the status quo, these changes will be cosmetic, designed to hoodwink the general public.
One scholar states that it is common for states to engage on transitional justice without any acknowledgment or taking legal responsibility for the human rights violations, but rather by appearing to act in order to help their people to move forward.
The UN Special Rapporteur, on the promotion of truth, justice, reparation and guarantees of non-recurrence, Professor Pablo De Grief, recently observed that “the measures [of transitional justice] have been progressively transferred from their ‘place of origin’ in post-authoritarian settings, to post-conflict contexts and even to settings in which conflict is ongoing or to those in which there has been no transition to speak of.” We are convinced this takes us closer to home. Arguably, there is an ongoing conflict and even without political transition, there is a general agreement that our systems have failed to preserve a peaceful state so we need to put some measures in place.
It is within this context that we propose reforms in the judiciary. The politics of our state stands in the way of a comprehensive judicial transformation programme. We have some “politicians in judicial robes”, and we have political institutions that are always ready to pounce on the judiciary.
De-politicisation is a huge challenge requiring more time and creativity because it touches a raw nerve at the unholy intersection of the judiciary and the executive. It threatens some political enterprises who want assurance that the courts will declare the next election free and fair. The political establishment will therefore accept any reforms, as long as they don’t threaten its position.
In such a case, carrying out any meaningful reforms requires creativity. We therefore propose that Zimbabwe can implement some measures with a great deal of modesty regardless of the lack of a political transition and the attendant political obstacles. While there is no universally accepted roadmap that exists for strengthening the independence and effectiveness of the judiciary in the field transitional justice, there are some UN guidelines for post conflict states which we can make good use of.
The guidelines provide useful tools that can be employed to assist to reform our judiciary in a variety of ways, including: improving the management and administration of the courts; assisting in recruiting judges and court personnel; training all judicial personnel; establishing or strengthening independent oversight and disciplinary mechanisms; raising and dispersing additional material resources necessary to run a judicial system; and enhancing the capacity of law faculties at universities to educate future judges and lawyers.
These tools can be employed in Zimbabwe to create a new generation of judicial officers whose independence is secured by a set of measures, like a truly independent judicial oversight body responsible for protecting the welfare of the judiciary including issues of discipline. Further legislative reforms may be necessary to avoid staffing or purging the bench by political entities. In this case, strengthening the Judicial Service Commission is paramount. It may not be possible within our context to get rid of the “politicians in judicial robes” but we can use the suggested measures and UN tools to curb undue political influence.
Now this will be difficult if the entire bench depends on political enterprise for their welfare — they get farms and other incentives —hence the issue of resources for better remuneration is a core part of any reform process. In short, we have to strive to secure the good in the judiciary, while using available space to enhance and increase it. That is, growing the judiciary from its strengths.
Reforming the judiciary is critical for Zimbabwe. Efforts to ensure an independent judiciary will promote a form of transition to democracy at this time when the country is still being undermined by violence from both dominant political groups. When we say transition here we do not mean regime change but rather, transformation from a violent society to a more peaceful society in which survivors of human rights violations have swift access to remedy, and further violations cease while offenders are assured of justice in competent courts.
Dzikamai Bere & Prosper Maguchu contribute to this column in their individual capacities. The views contained here are not the views of the organisations they are associated with.