SECTION 56 of the Constitution provides that “All persons are equal before the law and have the right to equal protection and benefit of the law”. In theory, this means every Zimbabwean should have the capacity to seek and demand redress under the legal system. However, in practice many, Zimbabweans do not have the capacity to gain access to justice. Access to justice is understood as the “ability of people to seek and obtain a remedy through formal and informal institutions of justice, and in conformity with human rights standards”. This entails an individual’s right to have his or her claim heard, and fairly decided by a competent court.
By Sandra Kayereka
Despite the theoretical right to have access to justice, some barriers exist for the ordinary Zimbabwean. To start with, there is a general lack of legal knowledge in the society. Legal knowledge and awareness are essential to legal empowerment as one may otherwise fail to seek justice because they do not know their rights under the law.
There is insufficient access to free legal information. While a few websites like that of the Parliament of Zimbabwe and the that of the Ministry of Justice, Legal and Parliamentary Affairs provide some legal information in the form of the Constitution, Bills and Hansards, the information is limited to just that, and does not provide, for example, court cases. Although ZimLii (Zimbabwe Legal Information Institute) provides free access to Zimbabwe case law, legislation and journal articles, there is a lack of awareness of the existence of this platforms by people who are not in the legal field.
Given that easily accessible and free legal information is limited, many people with no legal training will need the services of a legal practitioner to pursue their rights. However, this can be a costly affair. For example, an uncontested divorce can cost in upward of $800.
These costs are prohibitive for a majority of the population in a country where the average salary is about $250 per month. This leaves legal aid as the only option for many people. Our Constitution provides for a general right to legal aid in both criminal and civil cases. Although the government provides legal aid through the Legal Aid Directorate, access to its services is constrained by the application process one must go through and the financial challenges being faced by the Directorate. Several NGOs also provide free legal assistance, but they only address legal problems that relate their core target group and thus advance their overall mission.
In the light of this, many Zimbabweans are left with little choice but to not pursue their rights. In the few cases that one decides to be a self-actor, they are also faced with many challenges, particularly from the court employees who are supposed to assist them. The clerks and the assistant registrars in the Magistrates’ Courts and the High Court, respectively, are supposed to assist the people that attend to their offices, but majority of the time they do not have the required knowledge to assist. Having done some research through the courts a few years ago, I have first-hand experience with the lack of knowledge or made up procedures that exists in the courts and act as barriers to access to justice. One of these made up procedures is in relation to the Administration of Estates Amendment Act. This Act does not provide any set procedure for how a woman whose partner has died can prove they were in an unregistered customary law union and that she is, therefore, the surviving spouse. In the light of this gap in the Act, the magistrate’s court has now adopted a procedure where they ask for at least three affidavits from the deceased’s relatives confirming the union.
This procedure has, in some instances, become a barrier for women to access the inheritance they are entitled to, where the deceased’s relatives refuse co-operate. (how this gap can be addressed would have to be an article for another day).
With due regard to some of the legal complexities that can arise when dealing with legislation and the legal system, it is imperative to appoint staff that is qualified for the positions to make justice more accessible to those with limited financial means and legal knowledge. Not affording legal representation should not mean inability to access redress under the legal system.
Clerks of the court and assistant registrars mainly provide administrative support to the courts, but they also have semi-judicial duties which include issuing of summonses, warrants etc. This means they are first point of contact with the justice system for Zimbabweans and therefore the face of justice.
However, they have proven in some instances to hinder access to justice. In addition to lack of legal knowledge, their attitude towards the public that seeks assistance does not create an enabling environment which lays the foundation to access to justice. Some of staff is generally rude and unhelpful and apparently are entitled to a never-ending lunch period.
This impacts people’s experiences in accessing justice and usually acts as a deterrent for people to attend to the courts and look for assistance. When one considers that legislation like the Domestic Violence Act empowers the clerk or registrar of the court to assist a complainant who has no legal representation by informing them of the remedies available to them and their legal rights when applying for a protection order, the importance of the attitude of the clerks or assistant registrars is evident. Without well trained and qualified people being appointed to these posts, the court employees will contribute to the lack of access to justice faced by many Zimbabweans.
Access to justice is lacking because the majority of people cannot access the justice system due to financial constraints, lack of legal knowledge and a weak justice system due to, among other things, untrained and possibly unqualified staff at the courts. It is, therefore, necessary for our government to start looking at ways to improve justice delivery through re-looking their hiring practices and/or training their employees and thus equipping them with the necessary people skills and legal knowledge required for them to undertake their duties diligently.
Given that the Judicial Services Commission is in the processes of recruiting and making court appointments which include recruiting clerks of the court and assistant registrars, now would be the time for them to reflect on this issue and ensure that their appointed personnel are equipped to assist the public in a meaningful way. Without institutions that are accessible, responsive and accountable the implementation of laws will remain theoretical.
Sandra Kayereka holds a Bachelor of Laws and a Masters in Law with a specialisation in Private Law from the University of Cape Town. She has a passion for women and children’s rights and governance issues. She writes in her personal capacity