Delayed justice derails national objectives: CJ Chief Justice Luke Malaba

Mashudu Netsianda, Senior Court Reporter
CHIEF Justice Luke Malaba yesterday warned judges and magistrates against delaying handing down judgments and failure to set down for hearing, allocated cases, as such conduct may derail national objectives like the attainment of Vision 2030.

He said delaying justice was a violation of the constitutional imperatives of efficiency and effectiveness.

CJ Malaba challenged judicial officers to dispose of cases before them without delay, through well-reasoned judgments.

In a speech delivered virtually to mark the official opening of 2021 Legal Year, CJ Malaba said the judiciary should be guided by the fundamental principles and values of independence, impartiality, efficiency and effectiveness with due respect for the rule of law.

The traditional ceremony to mark the official opening of the 2021 Legal Year was cancelled as part of measures to minimise risk of Covid-19 infection by the Judicial Service Commission (JSC).

The Chief Justice has since suspended all court business and scaled back other courthouse activities in the wake of surging Covid-19 cases. Only initial criminal remands, bail applications and urgent applications are being attended to.

CJ Malaba said in terms of the Constitution, the system of justice should be independent and impartial.

“It requires that the judiciary be also efficient and effective in acting in accordance with the rule of law to achieve the purposes and objectives of the system of justice. Taking an unduly long time to deliver judgments is a violation of the constitutional imperatives of efficiency and effectiveness. To that end, members of the Judiciary must perform their judicial duties efficiently and with reasonable promptness,” he said.

“Members of the Judiciary are expected to endeavour at all times to do the right thing by adopting and following the legally prescribed procedures in the administration of justice to reach correct decisions within the shortest possible time and at the least cost to the litigants or the public.”

CJ Malaba said a requirement for a judicial officer to deliver his or her decision promptly should not be interpreted as interference with the independence of the judicial officer concerned.

“He or she is being asked to do what constitutes the content of the objective for which judicial independence is guaranteed by the Constitution. One of the principles by which the judiciary is required to be guided in the exercise of judicial authority is that justice must not be delayed,” he said.

CJ Malaba said failure to act efficiently and effectively is failure to act in a manner that exhibits an understanding of the rule of law governing one’s conduct.

“Judicial independence does not shield the bearer thereof from being held accountable to the standard of efficient and effective performance of the duties prescribed by the law for the benefit of the intended receivers of the service,” he said.

This year’s legal calendar will run under the theme “Ensuring efficiency and effectiveness of the judiciary,” which resonates well with Government’s National Development Strategy 1 (NDS1) launched by President Mnangagwa in November last year.

“The broad strategy is the first of two five-year Government strategies meant to guide operations of all arms and departments of Government towards achieving Vision 2030. With regards the justice sector, the strategy envisages enhanced capacity for an independent and competent Judiciary, able to deal with any injustices and violations of the law,” said CJ Malaba.

He said under the NDS1, Government seeks to achieve improved justice delivery as a national outcome.

“The judiciary is a critical player, whose role in the attainment of the national objective is indispensable. Among the strategies to be implemented by Government to promote greater access to justice are decentralisation of courts; establishment of an integrated electronic case management system, reviewing and rationalising legal costs, improving physical access to the courts by people with disabilities; simplification of court procedures and strengthening and capacitating the justice delivery institutions,” said CJ Malaba.

He said plans to introduce virtual court sittings are at an advanced stage. The process involves presentation of submissions by litigants and parties to disputes without them being required to be physically present at court.
The JSC has entered into memoranda of understanding with UNDP, International Commission of Jurists (ICJ) and Unicef to assist with the establishment of virtual courts throughout the country.

“This digitisation of the courts and their processes has already been adopted and is in use in other jurisdictions in the region and beyond. We must as an institution see beyond the Covid-19 pandemic,” said CJ Malaba.

“One courtroom at Harare Magistrates’ Court has already been fitted with virtual court equipment which connects the court to Harare Remand Prison and a pilot run of the equipment was successfully done towards the end of 2020.”

A few years ago, the JSC introduced an electronic case tracking and monitoring system at the High Court as a pilot project, which has since been cascaded to all courts in the country.

“Automation of court processes reduces human intervention in the processes. That in turn eliminates opportunity for corruption. Corruption was a source of many complaints, especially in the High Court where reports of court files disappearing in the registry were widespread,” said CJ Malaba.

He said the scanning of each document filed with the courts to produce duplicate electronic files has successfully eliminated the incentive for deliberate removal of court files by corrupt elements in the registries.

CJ Malaba said the system has greatly improved efficiency of court registries, as files are now easily accessible to litigants and stakeholders.

Litigants are also able to make enquiries on the progress of their cases with registries from the comfort of their homes or offices through the information kiosk e-mailing system.

CJ Malaba said his office and the JSC form part of the institutions with powers of processing the complaints, depending on their nature and degree of seriousness.

“The office of the Chief Justice receives many complaints from legal practitioners and litigants relating to alleged undue delays in completion of the hearing of cases, delays in the delivery of judgments, corrupt alterations of records of proceedings, acts amounting to attempts to defeat the course of justice, and acts of incompetence,” he said.

Where the conduct a judge is alleged to have committed is not of a serious nature but is prohibited by the Code of Ethics, the Chief Justice has authority to set up a disciplinary committee to investigate the allegations made against the judicial officer concerned.

Equally, where the conduct the judge is alleged to have committed is of a serious nature, the procedures under the Code of Ethics are not available.
The Chief Justice has to place the complaint and the related documents before the JSC in terms of section 187 of the Constitution.
“These are very exceptional cases involving possible gross misconduct, gross incompetence or mental or physical incapacity. Whilst the procedure under section 187 of the Constitution has as its purpose the determination of the question of removal of a judge from office, the steps required to be taken in the advancement of the process are clearly designed to protect the judge against complaints based on evidence of alleged conduct falling short of gross misconduct, gross incompetence or mental or physical incapacity,” said CJ Malaba.

Last year, two judges had cases of misconduct referred by the JSC to the President to set up tribunals to investigate the question of their removal from office. During the same year, five magistrates went through disciplinary hearings, resulting in their discharge from service on allegations ranging from corruption to inefficiency and incompetency.

As part of the implementation of the Strategic Plan, the JSC has approved the establishment in the current year of the Judicial Training Institute of Zimbabwe (JTIZ).

The college will be established in collaboration with the University of Zimbabwe. The establishment of the JTIZ is part of the JSC’s efforts to ensure that judicial officers comply with the requirements of Section 165 (7) of the Constitution, which enjoin them to ensure that they take reasonable steps to maintain and enhance their professional knowledge, skills and personal qualities, and in particular to keep themselves abreast of developments in domestic and international law.

CJ Malaba said as a result of the various initiatives all the courts generally performed well last year as there was a general reduction of cases compared with the previous year.

This was largely attributed to the lockdown imposed to contain the threat of the Covid-19 pandemic resulting in courts failing to accept new processes except for urgent matters. @mashnets

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