The Africa Judges and jurists Forum (AJIF) utterly condemned the issuing of a memorandum by chief justice Malaba of Zimbabwe, which directed the Supreme Court, High Court, Labour Court and Administrative Court of Zimbabwe to first handover judgments to heads of court for approval before officially proclaiming judgments.
“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,” reads the memorandum.
According to Chief justice Malaba the development in the judiciary system is meant to address, “concerns raised about the manner in which judgments are handled after being handed down,” reads the memorandum.
On Wednesday 22 the Secretary General of AJIF, Martin Okumu-Masiga said paragraph 2(iv) of the Hon Chief Justice Malaba’s memorandum of 16 July 2020 directing Zimbabwean judges to seek approval or have their judgments seen by superiors is utterly unconstitutional and this is a gigantic threat to judicial independence of the Zimbabwean courts.
“It needs to be totally revoked as it has no place in a modern constitutional democracy governed according to separation of powers…. 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, “said Okumu-Masiga.
Justice Oagile Dingake of Supreme Court of Papua New Guinea, also condemned Malaba’s move to end judiciary independence by violating the principle of separation of powers
“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. The principle of the separation of powers is the cornerstone of an independent and impartial justice system, “said Dingake.
“It is the bedrock upon which the prerequisites of judicial independence and impartiality are founded. The provision of the above directive for judgments to be seen and or approved by judicial officers who did not sit on the case merely because they are deemed to be supervisors grossly undermines the individual decisional independence of the judges and must be frowned upon,” added Oagile Dingake.
Protection of judicial independence is guaranteed and spelt out by section 164 and 165 of the Constitution of the Republic of Zimbabwe, particularly section 164 subsection 2(a} and (b) which provide that neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts and that the State is obliged to enact legislative measures to assist and protect the courts to ensure, inter alia, their judicial independence.
Judicial independence is further guaranteed by the Judicial Service Code of Ethics, the United Nations Basic Principles on the Independence of the Judiciary and, article 26 of the African Charter on Human and Peoples Rights (ACHPR).
Malaba further faced an internal backlash from Zimbabwe citizens.
‘Obvious we all know this Malaba is just incompetent and partisan. He is one of the few who have gained a lot of material favours from Zanu-PF. Few weeks back he was lambasted by Malawian judges for incompetence,” said Abednico Mwembe.
“These are signs of a captured judiciary. When they continuously do this in darkness, it becomes normal and doing it during the day, loses its abnormality. It is reminiscent of civil servants, army and police in particular during elections where they have to vote in front of their bosses,” added Derrick Ndlovu.
Liberty Pazvakawambwa SADC News Correspondent.