Transforming rule of law institutions necessary

HARARE - The independence of the judiciary is central to the administration of fair and equal justice in a democratic society.

The independence of the judiciary is well enshrined in the constitutions and constitutional jurisprudence of African countries, it is linked to, and derived from, two seminal principles: the separation of powers; and the rule of law.

This means theoretically, that the three arms of the Government, the Legislature, the Judiciary and the Executive, should be clearly separated from each other, and that each should operate independently of the others. This theory is, however, not easy to achieve.

The role of the judge is essential to the proper administration of justice as a public service. He or she is therefore not independent in regard to the manner in which he or she performs this service, but only when exercising his or her judicial power in settling cases under litigation.

For as long as judges are appointed, paid, promoted, or removed from office by persons or institutions controlled directly or indirectly by the Executive, the judiciary’s independence may be more theoretical than real.

There are provisions in the constitutions of many African countries like Ghana, Kenya, Uganda, Zambia, Namibia, South Africa and Zimbabwe, for the establishment of a Judicial Service Commission, which recommends or nominates those to be appointed as judges by the Executive.

The composition of the Judicial Service Commission, which is intended to be impartial and free from Executive interference or influence, is not only composed of judges and members of the legal profession, but in some instances representatives of civil society.

The membership of the Chairman of the Civil Service Commission, the Attorney-General and the “Cabinet member” responsible for the administration of justice, persons “designated by the National Assembly” and persons designated by the “President as head of the national Executive”, of a Judicial Service Commission, does not make such a body entirely free from executive or political influence.

Whilst the fact that some of these persons are ex officio, members of the various Judicial Service Commissions, presidential appointees, and in some cases, like the Attorney-General, enjoying the security of tenure, would seem to balance the power of the President over a Judicial Service Commission.

The fact that they are appointed to their respective offices, and as members of the Judicial Service Commissions, by the president, may well make the Judicial Service Commissions to be creatures of the respective Presidents.

The role of the Executive in the removal of judges from office is an important issue.

In Namibia, a judge may be removed from office by the Executive upon the recommendation of the Judicial Service Commission having first investigated whether a judge should be removed on the ground of “mental incapacity” or “gross misconduct”. The role of the Malawian Judicial Service Commission is somewhat different.

A judge may be removed from office by the president in consultation with the Judicial Service Commission after the removal of the judge from office on the grounds of incompetence or misbehaviour, has been debated and passed by the parliamentary National Assembly.

Similarly in South Africa, a judge may under section 177 of its Constitution, be removed from office only if: “The Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.”

In Zambia and Zimbabwe, if the president considers that the question of removing a judge ought to be investigated, he will appoint a tribunal to inquire into the matter and whose recommendation shall be acted on, by the President.

The existing discrepancies already illustrated demand reconciliation in order to make the role of the judiciary in Africa, as a whole, an independent and effective arm of government.

In this respect, attention must be given to related issues concerning existing African regional courts and to the possibility of having a conference of African judges to make suitable proposals.

Prosecutorial independence on the other hand, is closely related to the independence of the Judiciary.

In making sure that, everyone has a right to a fair trial, states must ensure that prosecutors are aware of the constitutional and statutory protections for the rights of the suspect and the victim and in addition, of human rights and fundamental freedoms recognised by national and international laws.

States must also ensure that prosecutors perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to Civil, penal or other liability.

The principal role of the Prosecutorial Authority is to assist the court systems to arrive at the truth and to do justice between the accused, the state and the community at large in accordance with the law and the dictates of fairness.

The prosecutor must exercise his duties professionally and diligently and shall always protect the accused’s right to a fair trial and the dignity and rights of complainants.

Furthermore, he has the duty to promote and protect the public interest. Tampering or concocting evidence to affect the outcome of criminal proceedings is prohibited and the prosecutor must carry out his duties with competence and the requisite expertise.

The Prosecutorial Authority has a duty to co-operate with the police, legal professionals and relevant government departments, but this does not mean that its independence should be encroached on.

The duty of the prosecutor to co-operate with the defense counsel or the accused person is in so far as that co-operation will aid the pursuit of justice. 

In order for the prosecution to carry out its duties objectively, it has to remain independent and free from political or any other interference or influence and in the event of any such influence, the prosecuting Authority has a duty to report such action to the relevant authorities.

Motives, other than to dispense justice must not be exercised.

Therefore, the Prosecutorial Authority has a duty to ensure that it does not waste the court’s time and or abuse the criminal justice system for other motives other than to do justice.

For prosecutorial independence to exist, the Prosecutorial Authority must exercise its functions in complete independence and on the basis of an objective assessment of the facts and understanding of the existing law. 

This function shall be exercised free from all pressures, threats, interference and external supervision, hindrance from any quarter or any other reason.

Furthermore, the prosecution is entitled to have the independence to decide on which matters to institute, suspend, stop or withdraw and must not be unduly influenced by inappropriate private and or political interests.

The authority is supposed to have the power and exclusive control of issues relating to the unrestricted control of whether and how the matter will be conducted and ultimately adjudicated.

Under all circumstances the prosecutor should exercise his function with a degree of independence that will allow him to give full effect to his constitutional mandate.

In deciding whether to prosecute a case, public interest must be considered as well as whether the accused, in the circumstances, will be afforded a fair trial. 

This decision furthermore, shall not be a result of direct or indirect pressure from political or private sectors. In terms of the performance of its duties, the Prosecutorial Authority should be free from all inappropriate connections with, and influence by, the Executive and Legislative branches of Government and other powerful interests. 

The practice of using Police officers as prosecutors poses other challenges. This practice is not ideal for the attainment of justice.

However, where the use of police prosecutors is unavoidable, such officers must report directly and exclusively to the designated superior officers who are members of the Prosecutorial Authority.

The duty of impartiality by the Prosecuting authority must be exercised,   its activities must be conducted in a manner that does not injure or impair its impartiality.

In addition, every officer in the Prosecution Authority shall perform his or her duties without fear, favour, bias and or prejudice. His or her personal preferences or opinions should not influence the course or final determination of the matter he or she is handling.

Consequently, every prosecutor shall disclose personal or other interest in a matter handled by him or herself. This also applies to judges and magistrates.

The Attorney General is the principal legal advisor to Government. The Attorney General is, therefore, mandated to represent Government in courts of law or any other legal proceedings to which the Government is a party.

However, there can never be absolute independence in any office, unless such an office “exists in isolation”.

Research shows that, “there is little independence because the security of tenure is not guaranteed and whoever is to serve in the office is always insecure of being removed from office if he/she disagrees with the Appointing Authority.

Even when the holder of the office would like to be objective, the political pressure mounted on him/her makes them prone to the political power, and it only takes the bold to withstand such pressure.”

The Attorney General should not be a member of Cabinet. If the Attorney General is to attend cabinet meetings, it should be as an ex-officio member. The same principle in Parliament should again be applied.

The terms and conditions governing the Attorney General’s office should be similar to those of a Supreme Court Judge.

There is need to have an Attorney General who is independent and non-partisan with guaranteed security of tenure so that  he/she can function without fear or favour.

The justice system in Zimbabwe comprises the following elements: the Supreme Court, the High Court, the Administrative Court, Magistrates’ Courts, the system for the administration of the courts, the office of the Attorney General and associated public prosecutors, and the legal profession.
To be continued

Comments (1)

Wish to be part of the legal community soon. Like any other system its important to always review it, we do not have the worst justice system in Africa.

Blessing - 6 July 2013

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