Judges’ dual roles delayed judgments

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THE dual sitting of judges in the Constitutional Court (ConCourt) and Supreme Court compromised the delivery of justice, with some cases dating back 15 years still pending.

This was revealed yesterday at the public interview of would-be ConCourt judges in Harare.
The ConCourt was recently separated from the Supreme Court by the Judicial Service Commission, giving rise to the need to conduct interviews which saw acting ConCourt judges, justices Chinembiri Energy Bhunu, Anne Mary Gowora, Ben Hlatshwayo, Rita Makarau, Paddington Shadreck Garwe, Bharat Patel, High Court judge Happius
Zhou and former police officer Smart Mirirai participating.
Only five judges would be selected to sit on the ConCourt bench.
The interviews were led by Chief Justice Luke Malaba who tested the candidates’ knowledge on the authority of the ConCourt; its procedures and limitations; and application of the rule of law.
Malaba took Bhunu, the first interviewee, to task over failure to hand down judgment in a murder that has been pending for 15 years.
Bhunu was given a chance to peruse the court record after Malaba quizzed him why he was yet to dispose of the matter.
“It says here the matter was postponed sine die and what was outstanding was the certificate of death from prisons,” responded Bhunu, but Malaba would have none of that.
“Where is the record that he died in prison and why was the accused person out on bail? Is it not the rule that once indicted for trial, bail is forfeited? How do you say that he died, do not assume, you do not know where the accused person is,” charged Malaba. It is the function of the judge to have that information. That is the duty of a judge to dispose of a case expeditiously.”
Bhunu tried to explain that he was overwhelmed at the time, with double duties in the Supreme Court and ConCourt.
He also told Malaba that following up on investigations was not his responsibility, but that of the prosecution.
“My duty is not to prosecute. I thought it had been disposed of…it was an error,” Bhunu said.
Another judge, Gowora was asked about eight cases that have outstanding judgements from 2018 and 2019.
“Until May 22 this year, I had been sitting as a Supreme Court and ConCourt judge. It is an impossible task. I tried my best to dispense of the cases,” she said.
Hlatshwayo was also asked about seven pending judgements before him and why it had taken him up to six years to finalise some of the matters.
“Some of the reasons are administrative. We have had to do a double job in the Supreme Court and ConCourt and unfortunately it is not an individual decision,” Hlatshwayo said.
All the judges concurred in their responses that it was important for the judiciary to be accountable to the public in the execution of their duties.
They agreed that allegations that the judicial system was captured were being peddled by people disgruntled with non-favourable judgements.
“When a citizen refers to capture it implies that the judiciary is no longer independent and subject to outside influences. In this country it has been used to denote that the judiciary has been captured by the executive or political party. All over the world when judgements are not popular the judiciary is labelled captured,” responded Gowora.
Mirirai had a hard time justifying that he was suitable for the job since he had no experience in prosecution or adjudication.
He responded that his experience doing investigations and drafting orders during his years of service in the police and other legal departments was a starting point.
“You have no experience at the courts, prosecuting or as a magistrate or judge. You have never written a judgement before. Who then is going to teach you to write a ConCourt order?” asked acting chief magistrate Munamato Mutevedzi, who was one of the panellists.

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