Why African judges criticized Zimbabwe Chief Justice Malaba

Sunday July 26 2020

Chief Justice of Zimbabwe Luke Malaba. PHOTO |

Chief Justice of Zimbabwe Luke Malaba. PHOTO | AFP 

By DERRICK KIYONGA

Following criticism from other African judges, the Chief Justice of Zimbabwe, Luke Malaba, has withdrawn a recent directive to judges in the South African country which was to the effect that they should seek approval or have their judgements seen by their superiors before being handed down, condemning the move as not only unconstitutional but also a threat to individual and decisional independence.

On July 16, Justice Malaba controversially issued a directive in the form of a memorandum addressed to the Supreme Court, High Court, Labour Court and Administrative Court of Zimbabwe ostensibly to address “concerns raised about the manner in which judgments are handled after being handed down”.

However, such concerns, which are supposedly the mischief that Justice Malaba was trying to address, were not disclosed in the memorandum and critics said unfortunately left the directive open to all sorts and manner of interpretation by the public.

Justice Malaba directed in paragraph 2 (iv) of the memorandum that: “Before any judgment or an order of the High Court or Labour Court is issued or handed down, it should be seen and approved by the head of court division.”

“All heads of courts are advised to bring this information to the attention of all judges,” he added.
The Africa Judges and Jurists Forum (AJJF), an organisation that brings together judges on the continent, led the push back against this particular directive.

“The head of the court is only head for purposes of administration and nothing more!” said Justice Lillian Tibatemwa- Ekirikubinza, a judge of the Supreme Court of Uganda but also a member of AJJF. “Decisional independence of judges is inviolable.”

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Individual decisional independence refers to the independence of the discretion of judges and their ability to hear and decide cases brought before them impartially without any fear or favour, and without influence from internal or external sources.

“It’s at the core of guaranteeing and protecting the right to a fair trial without which there cannot be justice. Without justice, there cannot be peace and development,” Justice Tibatemwa-Ekirikubinza said.

On July 17, following a public backlash, the Zimbabwean Chief Justice tried to walk back his order. He said he had amended is earlier order saying, “In paragraph 2 (iv) I have removed the word ‘approved’ and it should read ‘Before any judgment or an order of the High Court or Labour Court is issued or handed down, it should be seen by the head of court/station/ division.”

Nevertheless, this too was rejected by AJJF which insisted that the new wording did not reduce the level of public concern at the impact of Justice Malaba’s directive on the independence of the judiciary in Zimbabwe.
“It needs to be totally revoked as it has no place in a modern constitutional democracy governed according to separation of powers,” said Martin Okumu-Masiga, the secretary general of AJJF.

“It amounts to one of those unusual situations where the threat to judicial independence is potentially intra judiciary and not external which is highly regrettable,” he added.
On Thursday, Zimbabwe’s Judicial Service Commission (JSC) issued a statement saying having noted the concerns, Malaba had directed that contentious paragraph be purged from the memorandum.

“We attach hereto for the attention of the profession a copy of the new memorandum which is also being distributed to the attention of all judges,” the statement by the Zimbabwean JSC read.
“For avoidance of doubt, the new memorandum cancels and replaces the July 16 memorandum.”

Justice Oagile Dingake of Supreme Court of Papua New Guinea, formerly of the High Court of Botswana, had said: “The directive is a direct and intolerable attack on the principle of independence of the judiciary derived from the principle of separation of powers between the executive, the legislator and the judiciary.
“The principle of the separation of powers is the cornerstone of an independent and impartial justice system. It is the bedrock upon which the prerequisites of judicial independence and impartiality are founded.

The provision of the above directive for judgments to be seen and or approved by judicial officers who did not sit on the case merely because they are deemed to be supervisors grossly undermines the individual decisional independence of the judges and must be frowned upon.”
In Zimbabwe, the protection of judicial independence is guaranteed by Section 164 and 165 of that country’s constitution.

Specifically, Section 164 subsection 2(a) and (b) provide that neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts and that the State is obliged to enact legislative measures to assist and protect the courts to ensure, inter alia, their judicial independence.

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The principle of the separation of powers is the cornerstone of an independent and impartial justice system. It is the bedrock upon which the prerequisites of judicial independence and impartiality are founded. The provision of the above directive for judgments to be seen and or approved by judicial officers who did not sit on the case merely because they are deemed to be supervisors grossly undermines the individual decisional independence of the judges.

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