Judiciary deserves praise

LONDON - For a successful democracy, it is fundamental to have a free and impartial judiciary.

In this country, perceptions of the judiciary have been coloured by suspicion of allegiance to Zanu PF.

President Robert Mugabe has appointed the Chief Justice, Deputy Chief Justice, judges of the Supreme Court, Judge President and judges of the High Court after consultation with the Judicial Service Commission (JSC).

To some, these have just been political appointees meant to protect the interests of Zanu PF..

In some cases, the actions of the judiciary, particularly against the opposition, seemed to lend credence to these perceptions of bias.

In a democratic society, functions of the judiciary include implementing the rule of law through the interpretation and application of law and passing impartial verdicts.

The judiciary interprets the Constitution and protects the rights of the majority.

In the past few months, these functions have, rather pleasantly, manifested in an unprecedented manner.

A number of landmark judgments have been passed protecting citizens’ rights.

Rights have been categorised as civil and political rights on one hand, and economic social and cultural rights, on the other.

The recent ruling against the use of criminal defamation falls under the protection of civil and political rights.

The Constitutional Court unanimously ruled that criminal defamation must be struck off the statutes because it was not a justifiable law in a democratic society.

In a unanimous ruling after a case brought by journalists, the court ruled that criminalising defamation violated people’s freedom of expression and muzzled the media.

A civil suit for damages adequately protected defamed people.

The journalists were accused of breaching Section 96 of the Criminal Law (Codification and Reform) Act, a charge also brought against the editor and a journalist at one newspaper.

The ruling should sound the death knell for this odious law.

The fact the judges alluded to incompatibility of the law in a democratic society suggests that democracy — once a most loathed concept by Zanu PF — is now a veritable national aspiration recognised by our judiciary.

But this was not the only  ruling recently. Perhaps, a judgment that passed with little notice regarded the outlawry of municipalities’ tendency to disconnect water supplies for defaulting residents.

However, it is quite significant.

A second generation of rights — economic, social and cultural rights — has evolved in international law.

These rights have increasingly been embraced by national constitutions of many countries, including our own.

They include the right to water, food, education, adequate housing and so on.

However, debate about this group of rights has centred on whether they are justiciable; in other words, can economic, social and cultural rights be subject to judicial enforcement.

In the local sense, the High Court broke new jurisprudential ground by pronouncing that such rights are indeed justiciable.

In a landmark ruling recently, the High Court described as illegal Section 8 of the Water By-law Statutory Instrument 164 of 1913 which empowers local authorities to cut off water supplies arbitrarily in the absence of a court order.

The court stated that Section 8 was in breach of Section 77 of the Constitution of Zimbabwe, which classifies clean water and food as basic rights.

The fact that the courts have found defamation antithetical to free speech and the right to water justiciable, in accordance with the new Constitution, means Zimbabwe could be falling in line with growing trends in international law.

As long as the judiciary remains impartial, hope exists that Zimbabwe would become a truly democratic country which respects the rule of law.

Other recent judgments include Constitutional Court ruling in favour of Women of Zimbabwe Arise and Zimbabwe Lawyers for Human Rights which ordered the State to ensure that all holding cells had clean and flushing toilets with toilet paper and washing bowls.

Whatever perceptions we may have held, on account of the recent judgments, the judiciary deserves our full praise.

Comments (2)

Bravo justice must not only be done but must be seen to done.

MADZIBABA - 17 June 2014

Bravo justice must not only be done but must be seen to be done.

MADZIBABA - 17 June 2014

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