By Robert Tapfumaneyi
AFRICAN judges have come out in full condemnation of a recent order on fellow judges by Chief Justice Luke Malaba to seek approval or share outcomes of their rulings before passing them to parties in court.
Speaking under their umbrella Africa Judges and Jurists Forum (AJJF), the court officials described Malaba’s order as unconstitutional and a threat to judicial independence.
“It (directive) needs to be totally revoked as it has no place in a modern constitutional democracy governed according to separation of powers,” AJJF secretary general Martin Okumu-Masiga said in statement Wednesday.
“It amounts to one of those unusual situations where the threat to judicial independence is potentially intra the judiciary and not external which is highly regrettable.”
Last week, Malaba issued a Practice 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”.
“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,” Malaba directed.
The memorandum fell into the public domain and immediately raised serious widespread concerns on the impact of such a directive on the independence of the judiciary.
Malaba later amended the controversial directive by removing the word “approved”.
However, Justice Oagile Dingake of Supreme Court of Papua New Guinea formerly High Court of Botswana was not convinced.
“This new wording did not reduce the level of public concern at the impact of the Hon Chief Justice’s directive on independence of the judiciary in Zimbabwe,” he said.
“The amendment does not, on any reasonable and robust interpretation, alter the substance of the practice directive.
“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.”
Justice Prof Lillian Tibatema of the Supreme Court of Uganda and member of AJJF also lectured Zimbabwe’s topmost judge on how the law works.
“Without justice, there cannot be peace and development,” she said.
“Judicial independence refers to non-interference not only from external influence but also from fellow judges.
“The head of the Court is only head for purposes of administration and nothing more, decisional independence of judges is inviolable.”
AJJF urged Zimbabwean authorities to guarantee the protection of the independence of the judiciary as is guaranteed by domestic and international obligations.
The directive by Malaba raised further concerns the country’s judiciary had been captured by the ruling elite.