COURT WATCH: Transparency and Accountability

On Monday 13 January 2020 Chief Justice Luke Malaba delivered his speech for the official opening of the 2020 Legal Year in Harare while the Deputy Chief Justice (DCJ) Elizabeth Gwaunza was delivering a similar speech in Bulawayo emphasizing on the need for open justice and accountability on the part of judicial officers. The theme for this year is “Judicial Transparency and Accountability”. It resonates well with last year’s theme of consolidating the rule of law. The purposes and objectives of the rule of law as a foundational value and principle cannot be achieved by the guarantee and application of the fundamental principle of judicial independence alone.

Whilst an independent Judiciary is the essence of the rule of law, it is the same Judiciary which is required to act in a transparent and accountable manner in the exercise of all judicial functions.

The Open Court Principle

The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law.” Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

Transparency and Accountability

Chief Justice Malaba said Transparency and accountability foster within the public a sense of ownership and trust in government. The concepts reinforce the notion that judicial officers are employees of the people. Public decision-making processes ought to reflect the will of the people.It is for this reason that section 162 of the Constitution provides that judicial authority derives from the people of Zimbabwe. In that regard, citizens are major stakeholders in the business of the courts. He added the courts must therefore, from time to time, account to the citizens on how they are performing their functions.

In her address, the DCJ emphasised the importance of transparency and accountability of the judicial system. She mentioned that the independence of the Judiciary is crucial for the “public to have trust and confidence in the Judicial system”. She then went on to highlight the judiciary’s commitment to independence and how such independence is a “fundamental principle of constitutionalism and the foundation of the rule of law”.

Live Broadcast of Cases

In line with the Open court principle, Justice Malaba revealed that cases of public interest will now be broadcast live so as to provide the general populace access to the court proceedings. He said the broadcasting of court proceedings will also help bridge the information gap with very few people willing to attend the courts and in some cases unable to attend.

The Chief Justice said the move was intended to “foster public trust and confidence in the court system by debunking the myth that court proceedings are esoteric and that courts want to mask their decisions”.

The Chief Justice however noted that there would be “strict regulation” of the broadcasting process to protect the dignity of proceedings.

The DCJ also announced in Bulawayo the JSC’s wishes to have more cases which are of public interest to be broadcast live. “This trajectory”, she says, “speaks to the Judiciary’s commitment to transparency and accountability”.

This is a positive move and the only thing that’s not clear yet is how the authorities will come to a decision on whether a case is deemed as being of national interest or not.

Performance Management

The Chief Justice announced that the JSC has introduced a performance measurement system for judicial officers and their courts. He said the JSC has set up a performance management and Training Committee headed by the DCJ and the terms of reference for the committee includes engaging judicial officers and stakeholders to come up with an acceptable and standardised performance measurement system for judges.

The DCJ in Bulawayo highlighted the need for “courts to provide reasons for their decisions through writing and publishing judgments.” She states the need to have reasoned judgments promotes fairness in the judicial systems. The DCJ then pointed out that “from a constitutional point of view, the provision of reasons is an important mechanism for making administrators accountable to the people they serve and for achieving a culture of justification.”

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