Justice Mungwira and judicial independence

Justice Mungwira and judicial independence

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By Taffy Nyawanza

I WAS saddened by news of the death of retired High Court judge, Justice Sandra Mungwira.

That she died far away from home, in the highlands of Scotland, is a reflection of the times and the sad reality that faces many of our compatriots driven into exile by man-made conditions at home.

Judges with an independent mind, as the story of the late Judge’s life brings into sharp focus, are at special risk of persecution and harassment.

I cannot claim to have known the late judge that well but I have fond memories of the few times we interacted. I appeared before her in her court on a few occasions (and indeed was on one occasion at the receiving end of her sometimes sharp tongue in the dreaded Motion Court). I also met her away from work on at least one happier occasion. I remember particularly a function held in late in 2002 to launch the Zimbabwe Christian Lawyers Association, spearheaded by the likes of Daniel Molokele, Blessing Mudhara and Davison Kanokanga, amongst others. The late judge was a professing Christian and she made the effort to attend our very public launch at the Bronte, just off 4th Street. Mind you, Christianity then as now, was unfashionable in legal circles.

Which brings me to my point. I like my judges to be men and women of publicly known principles. It helps to know what values drive a particular judge because how he resolves the key questions of the day brought before him is often dependant on his philosophy. This is particularly important in countries such as ours where the executive arm of our government has gained a reputation of subduing the judiciary and making it an extension of the state machinery. The American judge Justice Michael Kirby recently argued in a newspaper article that, “Powerful media interests and others have resisted reforms; Parliament has shown itself spineless. Little wonder people are now turning to the courts to extract from the Constitution the fundamental rights which Parliament has been ineffective to protect”.

This therefore calls for careful scrutiny of how judges are appointed. It is critical that we have independent-minded men as judges, men who are beyond political interference and the former East Germany-style "telephone justice" where a judge hearing a sensitive case gets a phone call from higher authorities, ‘suggesting’ strongly how the case should come out.

But the obvious problem is that different fundamental values result in different outcomes. A Marxist, an anarchist, or a Libertarian are unlikely to agree on what is good law. Who decides whether a Christian or Muslim judge should sit on our courts?

I believe that this is where we need a fool-proof system of screening. There is need for an independent and representative Judiciary Services Commission which should assess and veto, if necessary, judicial nominees. The Judicial Services Commission, as it is presently constituted, is dominated by Presidential appointees. In theory, the President appoints judges on its advice. In practise, he needs not take their advice.

This is not right. The judiciary is too critical an institution to be left to the mercy of politicians. The judiciary has been described as the last bulwark against tyranny. Here the weak may flee and find refuge from sinister men with sharp teeth who devour the innocent of the land. But the judiciary ceases to be a safe tower of refuge if it is packed with timid little men and women at the beck and call of politicians. Its reputation is sullied by unprincipled men and women that can be bought for 30 pieces of silver. Sandra Mungwira was not such.

Be that as it may, there is the question of what role judges have in a society such as ours. When I went to Law School, this was the hottest debate which we discussed over meals and much else. It was often framed as, ‘Do Judges make law? Discuss’. The short answer of course, as every lawyer knows, is that judges do make law. The question however, should be extended thus; ‘Should they make law?’ And this is where the sparks begin to fly.

Tyrants and paranoid politicians would rather have judges who will not "legislate from the bench" but merely "apply the law, not make it." This view is known as strict constructionism and says that only parliament should make law and decide important national policies. It advocates for judicial restraint, that Judges should strictly construe and apply the law as it stands, aided by history and the framers’ original intent. It is a philosophy that lionises precedence. The judge’s own attitudes and views are irrelevant.

The merits of this argument lies in its pragmatism: the need to maintain predictability in the law so that potential litigants can plan more rationally and calculate in advance the consequences of particular courses of action.

In a functional democracy, where Parliament has the ability and independence of legislating on fundamental public policy issues, strict constructionism is a persuasive argument because adequate ‘checks and balances’ exist.

In times such as ours however, where the rule of men has supplanted the rule of law and the Constitution is no longer supreme, with the legislature tinkering on end with it, judges can ill afford to toe the line. In fact, judges have a duty to interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms in order to protect liberty and freedom.

But I admit that there is need for a cautious approach; a restrained judicial activism which strikes a fine balance between blind adherence to fascism on one hand and out of control judicial activism on the other. This offers the last hope that the current Constitution might evolve through the judiciary’s interpretation into a justiciable one. And that is hardly usurpation of legislative power by judges; it is merely filling in a vacuum left by a weak and malleable parliament.

In America, this debate is raging as never before. When President Bush recently nominated Harriet Miers to the Supreme Court to replace the retiring Sandra Day O’Connor, that swing voter who became notorious for her total lack of guiding principles, there was uproar. Miers eventually withdrew her candidacy as dissent by members of the President’s own party over her lack of judicial experience and conservative credentials grew louder and louder. In spite of the fact that she is acknowledged to be as sharp as a bunch of monkeys, she was handicapped by her total lack of judicial experience which would have helped in assessing what her philosophical thinking is. The beleaguered President capitulated and has now nominated Judge Samuel Alito, an unrepentant Conservative bruiser and intellectual heavyweight. The President’s choice will be divicise, especially between pro-choice (on abortion) and pro-family activists.

And yet the American system works for the simple reason that people on opposite sides of the divide know from the outset what kind of man they are dealing with. It also works because while the President nominates and justifies, it is Congress which ratifies or rejects. Not so in Zimbabwe where lots of dark horses have been foisted on the population and gone on to cause untold harm to the cause of freedom. More dangerously, we have a bunch of judges whose philosophical commitments were, and remain a mystery.

Our problems are legion but I will point out four which are pertinent.

Firstly, there is no system of screening judicial nominees. Under the terms of that much panel-beaten Constitution, the President may consult the Judicial Services Commission but need not take their advice. He pretty much has carte blanche when it comes to judicial appointments.

Secondly, and as a direct result of the above, the Judiciary is increasingly being packed with wimps; what Margaret Dongo would call ‘the president’s wives’. Party functionaries who pontificate politically from the bench and are kept in check with promises of land and lucre. The members of the judiciary who continue to rigorously hand down decisions that reflect their impartiality and independence have been subjected to harassment and threats by state agents and state-sponsored agents.

Thirdly, there are no records of the judicial views of most of the appointees. Magistrates Courts, which produces the bulk of Superior Courts nominees, do not publish their decisions. Thus we do not have a record of the thinking of these men and women that the President handpicks. The culture of scholarly writing amongst Zimbabwe jurists, whether practising lawyers or lecturers, which would be a useful source of knowledge, is also dying.

Fourthly, the independence of the judiciary has been severely compromised lately by unattractive judicial conditions of service. The cases of judges pressured out of service demonstrate that tenure of office, a guarantor of judicial independence, is not guaranteed.

These are mammoth problems. Yet judges can still stand up and be counted as did Sandra Mungwira. In the meantime, we must as civil society continue to insist on the right to know what our judges believe before they are appointed to the bench. This would inform the debate over the kind of law that they would make as members of the hallowed institution of the judiciary and lead to quality choices of judges.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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