Sharon Hofisi Legal Letters
THIS promises to be a significant year for the role of key players in fighting corruption in Zimbabwe: the police, courts and their officers, the Legislature and the Executive.

There is no malice in focusing on bad apples, tasters of the fruits of poisonous trees or lovers of inedible low hanging fruits. Further, corruption is cancerous — doubtlessly. Blisters can be all over society, head to toe if political and general will to curb this social ill is lacking.

Grand acts such as kleptocracy can have deleterious effects on national development just like mere speed money, undue delays, and other petty forms of corruption committed in many subtle ways.

But a caveat must be played in all earnestness. Focus must be made on making the existing court structure fertile for a sustainable culture of democracy before focus shifts to corruption courts. Whatever is done must be compliant with national laws, especially the constitutional freedoms, as well as international law and international best practices. Let me hasten to deal with the fundamental point raised by Chief Justice Luke Malaba during the opening of the 2018 legal year, on the need to establish corruption courts.

Noble as the suggestion might seem, the argument posed in this article is that these courts must not be used impulsively to justify unlawful arrests, or act as springboards for malicious prosecutions.

Public policy considerations and evidentiary sufficiency must be the ultimate considerations in an endeavour to deal with crimes that bear on the public good. There is no doubt that the mooted corruption courts would be modelled in the form of some ‘specialised’, ‘emergency’ or ‘extraordinary’ courts. It’s a given that such courts have generally been shunned at the normative level.

Because they could be established soon, how is their establishment regulated then? Fair trial! Nationally, the right to a fair trial is entrenched in section 69 of the Constitution and the constitutional system has to be followed. We have a functional and independent corruption watchdog, the Zimbabwe Anti-corruption Commission (ZACC).

A radical shift of the mindset on tackling corruption is needed before rushing to establish other courts. ZACC must investigate cases impartially, the Zimbabwe Republic Police (ZRP) must not arrest to investigate suspects; prosecutorial discretions must be exercised impartially by the vetting or set down, remand and trial prosecutors; and the magistrate or judge must respect the accused person’s constitutional freedoms — whether the accused is represented or not.

At the heart of this is the comprehension that the magistrate or judge is the court and case manager. However, the magistrate or judge must not down-dress the prosecutor, the accused or his lawyer as well as any other court officials such as the court orderly, the prison officer, and court recorder, interpreter in an open court or in chambers. The State and defence lawyer and the other court officials also owe an ethical duty to respect the court.

Where possible, they must furnish the court with important cases referred to in their submissions to enable the judge to quickly dispense judgments.

Dehumanising language must be avoided during court proceedings. Sound arguments must be properly recorded by the remand and trial courts in a legible manner to enable the higher courts to dispense with the need for transcribed records, especially in bail proceedings. Constitutional measures on compelling reasons for denying bail must always be the checklist for the courts when dealing with unlawful arrests and malicious prosecutions.

Presiding officers must not unnecessarily descend into the arena bearing in mind that Zimbabwe’s legal system is adversarial and not inquisitorial. The courtroom must be a haven of justice not endurance. Effective access to justice must be the reason to convene a court session.

Where tensions escalate, the courtroom must not be converted into a battle front. The magistrate or judge’s chambers must be used as the negotiating room for the parties. Imagine a court official belittling the magistrate or judge in an open court or the court scolding the lawyer in front of his client or the public gallery? It’s not healthy for the interests of justice.

In essence, ordinary courts must not be seen as ordinary ‘water’. If they are seen in this way, then it’s incumbent upon all the stakeholders in the justice system to turn them into wine. For instance, the placement of accused on remand must not border on impulsive decisions from superiors of prosecutors or the court on the basis that the case is high profile, yet there is no evidence to buttress that bald assertion.

The liberty of the accused must be the ultimate measure. It has remarkably been said at law that it’s “better to release ten guilty men than brutally stifle the liberties of one innocent man”.

The trial court must never be used as a remand court. Where the State is tarrying in its investigations, procedural safeguards on the right to a fair trial must be invoked in the interests of justice, which include the accused person’s interests.

Appositely, the accused must remain “innocent until proven guilty” not “guilty until proven innocent”. Essentially, proper handling of interlocutory applications is needed.

Many are times refusal for further remand applications are dismissed merely on the basis of giving the State ‘one last chance’ ad infinitum. This is notwithstanding the fact that some Declarations, which are part of soft international law such as the Singhvi Declaration on the Independence of Justices, show that accused persons must be tried with all due expedition and without due delay by ordinary courts or tribunals under law subject to review by the courts.

Equally,urgent applications for review pending the finalisation of the trial; recusal applications; or constitutional referrals must not amount to an abuse of the court process, especially delaying the finality of the case. Embedded in this is also the need for the court to avoid adopting Caesar’s co-conspirator label of being-the complainant, judge and prosecutor.

Most importantly, the sub judice rule must be respected in this era of fingerprint technology and media insecurity. Admittedly, the information sharing age is here to stay, but procedural safeguards must be put in place so that the accused does not succumb to media trial. Perception has always been the innovator of reality.

From a national interests perspective, the National Prosecuting Authority (NPA), as the chief representative of Government in criminal prosecutions, must adhere to the ultimate checklists of public policy and evidentiary sufficiency when declining prosecution or referring cases to the trial court.

Predictably, the set down prosecutor must judiciously vet cases and must not make it difficult for the remand and trial prosecutor to justify why a suspect must be placed on remand. Pasina mhosva hapanazve! Literally, prosecutors must decline cases where there is insufficient evidence).

To do this, the NPA must empower junior prosecutors to independently decline cases without fear or favour. Of course the roles of prosecutors in charge or the area prosecutors remain important at an administrative level but they must follow the ethical guidelines on independence of the legal profession.

The prosecutor as the State lawyer must always maintain a professional distance from the magistrate. Maybe with time, resources permitting, prosecutors must not be housed at the premises of the Judicial Service Commission. This will enable them to appreciate various reasons why defence lawyers sometimes fail to get to court in time. But chief concern is that sanity must prevail in all courts of law especially the need to allow real legal arguments in courts. Why should we hide under the excuse of overwhelming work at the expense of the accused person’s liberty?

The Judicial Service Commission must urgently carry out a baseline survey of real challenges in lower courts. This is practically achievable considering its partnerships under ‘Against Corruption Together’ tag. In all this, effective access to justice must be the cornerstone for all judicial initiatives. We may want corruption courts but still, much remains to be done.

Drawing parallels from the wedding at Cana, can it be said that ordinary courts resemble tasteless ‘water’ while the mooted corruption courts will be equivalent to the ‘wine’ that saw the attendees making merry?No-judicial independence and impartiality are the two fundamental pillars needed at the moment.

Rodney Brazier, for instance, generally states that independence of judges includes the fact that “. . . the public must feel confident in the integrity and impartiality of the judiciary: judges must therefore be secure from undue influence and be autonomous in their own field”.

Apart from the national level, Zimbabwe must follow the spirit of the times on fair trial. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) must be recognized as the procedural safeguard steeped in section 327 of the Constitution of Zimbabwe, 2013 which regulates the incorporation of international treaties.

Important authoritative sources of law such as the International Commission on Jurists’ Practitioner’s Guide on the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, 2004, must be used from a natural judge (juez natural) perspective. Essentially it shows that the accused must be tried by an ordinary, pre-established, competent tribunal or judge. As a corollary of this natural judge principle, emergency, ad hoc ‘extraordinary’, ex post facto and special courts are forbidden.

The major justification against such courts is the dual principle of equality before the law and courts, which means that laws should not be discriminatory or applied in a discriminatory way by judges. Lawyers must be alive to the Human Rights Committee’s repeated argument that discrimination must be distinguished from different treatment. It also cautioned that the latter is only acceptable if it is founded on reasonable and objective criteria.

The Committee’s recommendations on the abolition of such courts in countries such as Gabon, Guinea, Nigeria and Nicaragua must be used to mount arguments on the importance of soft sources of international law. Focus should also be made on the need to achieve national implementation of the ICCPR at practical level. This need was aptly captured in the European Commission’s Report in the case of Zand v Austria, 1978, that in a democracy, organisation of the judiciary must not be left to the discretion of the Executive, but should be regulated by a law of parliament.

Although the Commission did not take this to mean that delegation of powers is unacceptable in matters related to the organisation of the judiciary, it is argued that Zimbabwe has an infant constitutional jurisprudence, and Parliament must be involved in the establishment of specialized courts, which deal with issues that heavily impact on nation building and good governance such as corruption.

The involvement of Parliament means that adverse and favourable input from the people will be solicited. The need to promote public participation is affirmed in section 7 of the Constitution.

While the role of the judge in promoting access to justice is considered important in this article, Parliament is the first gatekeeper of popular democracy and must provide a legislative framework on laws affecting the public.

If corruption laws start from Parliament, we can have clear guidelines on what amounts to public interest or policy considerations. The NPA and courts of law-our national arbiters, will have a clear starting point in dealing with sensitive or cancerous crimes against the public.

The judges must be innovative in improving the jurisprudence on what amounts to public interest. This has remained elusive in Zimbabwe where the development of the jurisprudence in this regard is stifled by doctrinaire reliance to technical arguments in constitutional matters.

In the event that the above courts are established, General Comment No. 13 must be used as the ultimate guideline. Chief among the considerations is that the rules of such courts must genuinely afford the full guarantees stipulated in Article 14. The logical corollary to this is that there must be justifications as to why normal standards of justice must be discarded in preference to exceptional standards under a new court regime.

The Chief Justice rightfully alluded to the influence of constitutional experimentalism and how constitutional applications are gradually dwindling. It should be not be forgotten that the rules of the Constitutional Court came late, and various factors influence such as the frequent use of judicial restraint in the form of avoidance and subsidiary doctrines, stringent requirements of practice directions, and so forth frustrate litigants even in strategic and public interest matters.

Judicial restraint is the real elephant in the room. Corruption Courts can only be effective if the general public is involved in the establishment of such courts and in the appointment of the presiding officers of such courts. Although corruption is endemic and threatens the fabric of our society, we need to interrogate whether in earnestness corruption courts produce the best case scenario. We must not forget the wise remarks of President Alwyn of Chile that ‘the best is sometimes the enemy of the good’.

At the end, a marathon approach to justice is needed: the judiciary has sounded the gun shot, other players are already in their lanes; a sound theory on tackling corruption is needed premised on the recognition that there are no special rules in marathon; athletes listen to the shots; set the pace for the other competitors, and keep leading the race until they hit the finishing line.

It is mandatory from the perspective of democracy that public participation must be at the heart of these democratic initiatives. This preserves the tenets of democracy such as good governance. The beauty about good governance is that it is a founding principle or value enshrined in section 3 in the Constitution. It is also one of the tools of constitutional interpretation which judges can ultimately use in terms of section 46 of the Constitution.

Zimbabwe is a state party to the ICCPR and is enjoined to follow best practices and interpretations of its provisions. The reason for discouraging specialised courts is loudly clear: it gives the impression that such courts have special rules targeting particular people. If various decisions at regional level have been used to discourage military and other special courts unless there is enough evidence that they are established according to the law, Zimbabwe is obliged to follow suit.

This makes it mandatory for the legislature, which represents the people through representative or indirect democracy, to quickly lay the legislative framework in this regard. There is nothing wrong for judges to signpost suggestions for legal reform, but international best practices demand that special courts must not give the impression that general rules of justice will be ignored or used in a discriminatory manner. The ubiquitous question in this debate becomes: If justice has always been dispensed in a normal way in ordinary courts why then do we need special ones?

Constitutional rights must not be sacrificed at the altar of expedience. Admittedly Zimbabwe has efficient courts in specialised form, such as the Fiscal court and children’s courts. But at the same time concern has been raised on such courts like the electoral court. Electoral disputes have not been disposed of in time and reasons for judgments have been given several months into another electoral cycle, even where cases would have been interpreted erroneously.

In most cases, judges either reserve judgment, or simply indicate that reasons will follow, thus keeping litigants in legal suspense and consequently frustrating them. From the foregoing considerations, litigants must quickly and effectively access justice. Essentially, the mooted courts, must be modelled under, and comply with international best practices, particularly that they must not be used to asphyxiate the accused persons’ right to a fair trial.

Sharon Hofisi is a lawyer and is contactable at [email protected]

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