Chief Justice Luke Malaba has reversed a controversial directive that judges should first seek approval or have their judgements seen by their superiors before being handed down, a move described by the legal fraternity within and beyond Zimbabwe’s borders as not only unconstitutional but also a threat to individual and decisional independence.
On July 16, Malaba issued a practice directive in the form of a memorandum addressed to the Supreme Court, High Court, Labour Court and Administrative Court directing that: “Before any judgement 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.”
This week, Africa Judges and Jurists Forum (AJJF), a Pan-African network of judges and jurists, who are committed to promoting justice and development in Africa, did not have any kind words for Malaba calling upon him to revoke the infamous directive.
Responding to the Law Society of Zimbabwe, which had raised similar concerns on the directive, Judicial Service Commission (JSC) secretary, Walter Chikwana, in a letter dated 21 July, said the directive was not meant to stifle the independence of the judiciary, neither was it meant to give heads of courts powers over judgments and decisions made by fellow judges.
“We now realise that this paragraph has created the unfortunate and unwelcome perception to a memorandum which was put together in an effort to address grievances raised by the profession and litigants regarding the non-availability of judgments that would have been delivered in court,” wrote Chikwana.
“In the circumstances therefore, the Chief Justice has directed that paragraph 2(iv) of his memorandum of 16 July 2020 be expunged from that memorandum. We attach hereto for the attention of the profession a copy of the new memorandum which is also being distributed to the attention of all judges. For the avoidance of doubt, the new memorandum cancels and replaces the 16 July 2020 memorandum.”
The background to that memorandum, Chikwana said, is that the JSC had been receiving a lot of complaints for quite a while from litigants, legal practitioners and members of the public in general on the non-availability of judgments which would have been read in court by judges.
He said following those complaints and subsequent investigations, it was revealed that there were instances where a judge would deliver a judgment or the operative part of a judgment in court or in chambers but, the judge, for various reasons some of which were genuine, would not immediately avail the judgment for distribution and accessibility to the concerned parties and the public.
“The Chief Justice then consulted and engaged with judges of all the courts on this challenge and received contributions from the judges on how to deal with the issue,” said Chikwana.
“The memorandum issued was intended to address that problem and it was based on the input that the Chief Justice received from the judges. It was meant to guide the courts and the judges on the need to pronounce judgements only when they are ready and to make judgements accessible and available to the litigants, legal practitioners and the public immediately after such pronouncement. This is the spirit upon which the memorandum of 16 July 2020 was written.”