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The Role the Judiciary Must Play in Society

BOTH the editorial comment and Candid Comment in last week’s edition (Zimbabwe Independent, January 16-22) were spot on.

As a contribution to a long overdue debate on the role of the judiciary in Zimbabwe, especially in post 2000 Zimbabwe.

I can do no better than furnish you with the following pearls of wisdom from Alfa Modibo Belgore, the former Chief justice of Nigeria, and the late Michael Corbett, one of the greatest Chief Justices that South Africa has had.

Chief Justice Alfa Modibo Belgore: “Since 1960 there has been nothing wrong with the constitution. The operators, the elite, are making terrible encroachments into the constitution. Our elite are very selfish people. The constitution is a very sacred document but our people don’t respect it.”

 “The executive might transgress, the legislature might become unruly but it has always been the judiciary that has stood the test of time by standing firm on the side of truth and justice.”

Chief Justice Michael Corbett —— Ideal Qualities of a Judge:

Knowledge:

A judge should have a sound knowledge of the law and the practice of the courts. Under our system of very limited specialisation, a judge may sit in criminal sessions, motion court and civil division where the cases coming before him may involve any of the aspects of private law, administrative law or complex commercial topics such as bills of exchange, insolvency, company law and intellectual property. 

Experience:

In the ordinary running of a trial, the judge must have a vast well of experience from which to draw. During the course of a single day, he will inevitably be called upon to give many rulings on procedure, the admissibility of evidence, the conduct by counsel of their respective cases and so on.

In many such instances, the judge must know, almost instinctively from his experience, what to do.

In addition, to some extent a trial judge must exercise a guiding and restraining influence over the course and conduct of the whole  trial, at the same time maintaining a position of impartiality and neutrality.

Judgement:

This quality relates both to fact-finding and to the application of the law to the facts. He must have the knowledge and experience of the world and its ways to make a good assessment of the probabilities and to weigh them correctly.

He must be endowed with common sense. In applying the law to the facts, in those many areas where a decision has to be made as to whether in a particular situation, certain conduct is fair or reasonable, in other words, where value judgements have to be passed, similar qualities of judgement, common sense and understanding are demanded.

Independence:

The judge must be beholden to no one. He must be not only willing but also unflinching in his resolve to decide cases in whatever way his professional skills and his conscience direct him, whatever the consequences and however unpopular his decision may be in certain quarters or indeed generally.

He must be objective, unbiased, unattached to any preconceived notions or philosophy which would tend to make him take sides or take an unduly severe or lenient view of certain types of conduct.

He must, in a sense, stand aloof from the society in which he lives while, at the same time, being acutely aware of the realities of that society as well as its moods, values and mores.

Character:

The judge must have the personality and temperament to maintain order and dignity in court proceedings.

He must be patient. As the legal process is by its nature a slow and somewhat ponderous one, the judge must be prepared, within reason, to give the parties full rein.

He must approach every case with an open mind and , although he will inevitably form certain views and impressions during the course of the trial, he must keep that open mind until the end.

He must be a good listener. Interventions in the course of hearing evidence should generally be restricted to the elucidation of matters which are not clear.

During counsel’s argument, the judge may, and indeed should, put his difficulties to counsel and, in that way, test the validity of counsel’s submissions.

However, he should not entre into a wrangle with counsel or try to persuade him that his submission is incorrect or, except in extreme cases, try to silence counsel on a particular line of argument.

Industry:

Judges have an enormous workload. Current crime waves overload the criminal rolls. The growth and development of the economy and commercial activity, in general, have resulted in a steady increase in the volume and complexity or civil litigation coming before the courts.

In the circumstances, all judges have to be extremely industrious. They have not only to work for long hours, often in the evenings and over weekends but they have to see to it that they produce, with minimum delay, what the parties have come to court for; a judgment.

The importance of the truth of the old adage that justice delayed is justice denied cannot be emphasised enough.

A judge must have the ability to suffer, with dignity and in silence, the slings and arrows of the critics, some of whom, regrettably, seem to find it unnecessary to read the court’s judgment.

Indeed, misrepresentation of the decision of the courts, mainly by the fourth estate such as the media, has in recent years posed a significant problem n many countries.

It is not, for one moment, suggested that the decisions of the courts should be immune from criticism, or that, in a general sense, judges should not be accountable to the public.

However, criticisms should be based upon fair and accurate reporting of the judgment and not upon slanted, distorted or incomplete versions of what the case is all about. 

By the same token, it is equally important that the dignity and authority of the courts should not be undermined, especially by criticism that has no factual foundation.
   
The question which the public who, as you elegantly described them are the most competent jurors in the efficacy of the bench, must ask is whether or not the members of our judiciary measure up to the ideal qualities of a judge set out above.

MA Masunda,
Harare.

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