In July 2009 fellow editor Constantine Chimakure and myself mounted a constitutional challenge against Section 31 of the Criminal Law (Codification and Reform) Act, which criminalises the communication of statements that are likely to undermine public confidence in law enforcement agents.
We had at the beginning of 2009 been arrested and detained under the law which we deem to be patently unconstitutional.
The constitutional case was eventually heard almost a year later before a full bench of the Supreme Court on June 2, 2010. During the hearing, State counsel Tawanda Zvekare conceded that the wording of this draconian piece of legislation was vague.
“Considering the exchanges made in this court, I observe that the draftsmen have to revisit the whole code. The legislature had the noble intention to protect (security) forces from falsehoods, but the draftsmen did not capture it well.”
The court at the end of the arguments and concessions by the State reserved judgment. But to us laymen sitting in the gallery, the case appeared simple enough.
We were expecting a favourable and expeditious ruling that would result in the excising of this bad law from the statute books. But 18 months on, the ruling is still pending before the court.
The irony of this delay is that Justice Luke Malaba, one of the Supreme Court judges who heard our case in 2010, on Monday spoke very well against the delay in the delivery of judgments.
In a speech to open the 2012 legal year, Justice Malaba announced that the Supreme Court had been able to clear cases set down for hearing. “Reserved judgments are now an exception rather than the norm in the Supreme Court,” he said.
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Really? For selfish reasons here, I would take this assertion with a pinch of salt, your honour, because as you said in the speech, “judicial power is guaranteed in the Constitution so that it is used fairly to deliver justice within a reasonable time at a reasonable cost”.
What can be considered reasonable time is relative, but I will struggle to believe that 18 months falls in the realm of an acceptable time-frame.
Meanwhile, despite State concessions on the vague wording of Section 31 of the Criminal Law (Codification and Reform) Act, police have continued to arrest journalists using a law that is under constitutional challenge. Where is the justice here?
On Monday, Justice Malaba also announced that the judiciary had come up with a code of conduct to be used as a standard against which to assess judicial behaviour.
It is my hope that the code will be used not just to assess the decorum of judges, but also their output and efficiency as individuals.
As part of this openness to scrutiny which the judiciary is inviting through the new code, the judicial system should publish a list of outstanding cases and which judges are dealing with them.
This will help in changing behaviour. If courts are to perform better, ways must be found to reward those who contribute to better performance and sanction those whose actions stand in its way.
There is no way judicial officers will win public confidence when there are delays in the disposition of cases.
I believe that members of the bench subscribe to the Bangalore Principles of Judicial Conduct, which states that: “Competence and diligence are prerequisites to the due performance of judicial office” and that “a judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness”.
Otherwise the most quoted legal aphorism, that “justice delayed is justice denied”, will become a mere platitude.
A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Chimakure and myself in the meantime wait for the ruling in our constitutional case.
