“IT is in the magistrates’ courts that justice is tested in its most crucial, most pervasive, most voluminous, most pressurised, and logistically most demanding dimensions – in literally thousands of cases every day. The continuous struggle for the legitimacy and efficacy of the instruments of justice is substantially lost or won in the magistrates’ courts.”
guest column: Sandra Kayereka
The above quote by the post-apartheid South African Chief Justice Ismail Mohammed (1998) explains why magistrates matter. They matter because magistrates’ courts are courts of first instance.
As result, the majority of the population comes into contact with the legal system through magistrates and many never get the opportunity or have the financial means to have a trial that goes to the superior courts. They matter because that is where majority of the laws of the country are tested and it is where justice is served or denied to majority of the citizens. In light of this, it is essential for the judicial officers in the magistrates’ court to be qualified, well-trained and above reproach. However, in Zimbabwe, this has not been the case. On the one hand, an examination of magistrates’ court files reveals overworked, under-trained and possibly under-qualified magistrates.
Majority of the files I personally accessed while researching on inheritance cases in the Harare Magistrates’ Courts (2013-2015) revealed an under-resourced judiciary, where magistrates wrote their decisions in pen and, therefore, made it difficult for anyone to analyse the cases as some of the handwriting was hard to read. But most glaring was the general failure to write well-reasoned judgments, but to rather give one-liner judgments that left one unable to follow the reasoning used to get to the decision.
There was also the failure to apply the law, which consequently showed a misunderstanding of law and at times failure to fully engage with the facts and the law relating to the cases before them. Some of the cases indicated a lack of research on certain aspects of the law.
Any legally trained individual knows the value of good research and of precedents set by the higher courts. However, the disappointing judgments from the majority of magistrates’ court decisions failed to reflect any meaningful interaction with legislation, case law or academic writings. On the other hand, there have been reports of rampant corruption within the magistrates’ court, which has resulted in a loss of confidence in the judicial system.
A survey by Afrobarometer in 2015 found that majority of Zimbabweans perceive judges and magistrates as being involved in corruption and 21% of the those interviewed stated that they had paid bribes or given “gifts” in exchange for assistance from the courts.
All this leaves one to wonder about the appointment procedures used in appointing these magistrates. The Judicial Service Commission (JSC) recently appointed 60 new magistrates in an effort to up the efficiency of the justice system. These appointments also came with a new procedure initiated by Chief Justice Luke Malaba, where the magistrates will undergo mandatory seven weeks training. This training is reportedly meant to improve the quality of justice as the old system of attaching newly-appointed magistrates with senior judicial officers compromised the quality of justice given out by the magistrates’ courts.
While this move is commendable as a way of trying to address the quality of magistrates coming into the system, it does not address the issue of quality of the magistrates already in the system.
Since concerns with regard to the old system were raised by the Chief Justice, perhaps the magistrates who are already in the system should also be undergoing training to try and get them up to an acceptable standard.
However, the issue of confidence in the magistracy still remains. If the transformation of the magistracy is to be taken seriously, it has to be ground up. This means the transformation has to begin at appointment processes where there should be transparency.
It was reported that in the recent magistrate recruitment process, out of 700 applicants, the JSC shortlisted 100 and eventually appointed 60 magistrates. The advertisement for the magistrates’ posts required that applicants should have a “good law degree from a recognised university and “be a fit and proper person for appointment to judicial office”.
After this advert, we must question the procedures and guidelines that follow as in the past they have resulted in the appointment of somewhat disappointing judicial officers. What made the appointed 60 better candidates in a pool of 700? Was the process fair and unbiased? Were the best candidates really selected? These are all questions that come to mind, particularly in light of the lack of confidence in the judiciary that already exists.
Perhaps it is time the JSC adopted a transparent process which includes public guidelines on how magistrates’ appointments are made. While it can be argued that the country has resource constraints and cannot afford transparency due to the high numbers of magistrates that need to be placed as opposed to when they recruit for higher court judges, cost-cutting measures can be implemented. For example, instead of public interviews like those held for higher court judges, the JSC could maybe publish the curriculum vitae (CVs) of those candidates that are shortlisted or those appointed. This will go a long way in instilling public confidence that the best candidates were chosen. It also means there will be no room for bias, nepotism and corruption as the CVs will be available for public scrutiny.
In a constitutional democracy, a functioning, credible judiciary is essential and this judiciary also includes the magistrates at the lowest courts.
Magistrates do matter and because of that, Zimbabwe should perhaps begin to be transparent in their appointments and appoint the best possible candidates so as to gain public confidence.
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 writes in her personal capacity and can be contacted on firstname.lastname@example.org