When I went to Law School, the hottest debate which we discussed over meals and much else, was often framed as, ‘Do Judges make law? Discuss’. The short answer of course, as every disciple of the law knows, is that judges do make law although they pretend not to. The question however, should be extended thus; ‘Should they make law?’ And this is where the sparks begin to fly.
Tyrants and paranoid politicians would rather have judges who will not “legislate from the bench” but merely “apply the law, not make it.” This view is known as strict constructionism and says that only parliament should make law and decide important national policies. It advocates for judicial restraint, that Judges should stick to interpreting the law as it stands, aided by history and the framers’ original intent. It is a philosophy that prioritizes precedence. The judge’s own attitudes and views are irrelevant, according to this philosophy.
The merits of this argument lies in its pragmatism: the need for the law to be predictable so that potential litigants can plan more rationally and calculate in advance the consequences of particular courses of action.
In a functional democracy, where Parliament has the ability and independence of legislating on fundamental public policy issues, strict constructionism is a persuasive argument because adequate ‘checks and balances’ exist.
In a country such as ours however, where the rule of men has always supplanted the rule of law and the Constitution has never been respected, and with the legislature tinkering on end with it, judges can ill afford to toe the line. In fact, judges have a duty to interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms in order to protect liberty and freedom. This is because, at the end of the day, a constitution is a piece of paper; it often takes the judiciary to enforce the respect of its demands.
Admittedly, there is need for a cautious approach; a restrained judicial activism which seeks a middle ground so that we do not have on the one hand blind adherence to fascism, or on the other hand, judicial activism which is out of control. Some form of judicial activism offers the hope that our constitution, whatever it turns out to be after the ongoing constitutional making process, might evolve through the judiciary’s interpretation into a justiciable one. And that is hardly usurpation of legislative power by judges; it is merely filling in a vacuum left by a weak and malleable parliament.
Even in America where the constitution is strong and has withstood the test of time, this debate always recurs. It emerges time and time again, especially when a sitting President is faced with a vacancy on the Supreme Court to replace a retiring or dead Justice. And yet the American system works for the simple reason that people on opposite sides of the divide know from the outset what kind of man they are dealing with through a robust process of parliamentary scrutiny. It also works because while the President nominates and justifies, it is Congress which ratifies or rejects. Not so in Zimbabwe where lots of dark horses have been foisted on the population and gone on to cause untold harm to the cause of freedom. More dangerously, we have a bunch of judges whose philosophical commitments were, and remain a mystery and where parliament has no role in the appointment of Supreme Court judges.
Our problems are legion but I will point out four which are pertinent.
Firstly, there is no system of screening judicial nominees. Under the terms of the current multi-panel-beaten Constitution, the President may consult the Judicial Services Commission but needs not take their advice. He pretty much has carte blanche when it comes to judicial appointments. The Judicial Services Commission, as it is presently constituted, is in any event dominated by Presidential appointees. We desperately need a fool-proof system of screening judicial appointments. There is need for an independent and representative Judiciary Services Commission which should assess and veto, if necessary, judicial nominees. This is because the judiciary is too critical an institution to be left to the mercy of politicians. The judiciary has been described as the last bulwark against tyranny. Here the weak may flee and find refuge from sinister men with sharp teeth who devour the innocent of the land. But the judiciary ceases to be a safe tower of refuge if it is packed with timid little men and women at the beck and call of politicians. Its reputation is sullied by unprincipled men and women that can be bought for 30 pieces of silver. It is critical that we have independent-minded men as judges, men who are beyond political interference and the former East Germany-style “telephone justice” where a judge hearing a sensitive case gets a phone call from higher authorities, ‘suggesting’ strongly how the case should come out.
Secondly, and as a direct result of the above, the Judiciary has increasingly become packed with wimps; what Margaret Dongo famously called ‘the president’s wives’. Party functionaries who pontificate politically from the bench and are kept in check with promises of land and lucre. The members of the judiciary who continue to rigorously hand down decisions that reflect their impartiality and independence have been subjected to harassment and threats by state agents and state-sponsored agents.
Thirdly, there are no records of the judicial views of most of the appointees. Lower courts, which produce the bulk of Superior Courts nominees, do not publish their decisions. We therefore do not have a record of the thinking of these men and women that the President handpicks. The culture of scholarly writing amongst Zimbabwe jurists, whether practising lawyers or lecturers, which would be a useful source of knowledge, is also dead or dying.
Fourthly, the independence of the judiciary has been severely compromised lately by unattractive judicial conditions of service. Remuneration is one aspect, and political pressure is another. The many cases of judges pressured out of service demonstrate that tenure of office, a guarantor of judicial independence, is not guaranteed.
These are some of the issues that need to be confronted and addressed in the current constitutional making process.
Nyawanza T. LLB (UZ), LLM (Warwick) is a solicitor registered to practice law in England & Wales and is the principal partner at Genesis Law Associates, a firm specializing in immigration law in Birmingham, UK. He also registered to practice law in Zimbabwe.