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IS THE JUDICIARY SICK?

05/07/2018 01:36:00 By vusi Kunene

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CONGRATULATIONS to the Judiciary on the appointment of more judges of the High Court. It is indeed recommendable that the number of judges has been increased and the backlog of cases will be dealt with.

Even though the dumb squib to the appointments is that there are no courtrooms for the judges to work in. That will be a challenge to fighting the backlog. Congratulations are also in order for having a permanent Supreme Court. This will help the administration of justice to be fast. We are hoping that we will soon have a Supreme Court building where this court will sit.

The Constitution provides that justice shall be administered by the Judiciary, which shall be independent and subject only to the Constitution.

The problem is when the Judiciary then decides to compromise its independence. It is expected that the Judiciary will jealously guard against the invasion of its independence but it is a problem when it opens itself to invasion of its independence.

When the Judiciary decided to accept gifts from potential litigants, it compromised its independence and we will be circumspect to the judgment of the court when presiding on matters that involve the litigant who brought the gifts. The Judiciary knows that justice should not only be done but must also be seen to be done.

We will not see justice done in cases of litigants who give gifts to the Judiciary. The Judiciary is independent in both its judicial and administrative functions and subject only to the Constitution so that no individual or institution will have influence on it. By accepting the gifts it opened itself to manipulation and this defeats the reason why the Judiciary is independent from control of anyone.

Another issue with our Judiciary is when it shows that it is united. We are not saying there should be friends but we anticipate that judicial procedures will make sure that there are no clear confrontations among judicial officers. But what we witness nowadays leaves one wondering if it is worth believing in a Judiciary that behaves in a manner that is not honourable. When judicial officers issue certain pronouncements in a matter and in a few minutes time another issues an opposite pronouncement in the same matter, it makes one doubt the independence and credibility of the institution.

Procedures like reviews and appeals are there to prevent such from happening but it is worrying when judicial officers are seen behaving like they do not know the procedures of the Judiciary. What kind of justice will be administered by people who fail to follow procedures?
One of the duties of this institution is to enforce the fundamental human rights and freedoms guaranteed by the Constitution.

The problem, however, is when the very same institution that is supposed to enforce human rights is the one violating those human rights. When the chief justice of the country then tells the nation that some people are not supposed to enjoy certain rights, it becomes a problem and it also undermines the independence of the judges who will hear certain bail matters.

It is a right of every person to be presumed innocent until proven guilty and that right should be enforced by the Judiciary. We also know that rights have limitations and if justice will not be served by presuming someone innocent then the law is clear on what should be done. But it is the judicial officers listening to the cases who will determine if justice will not be served by presuming the person innocent and not for the head of the Judiciary to issue a statement that certain people should be denied their right.

One of the tenants of natural justice is that a decision that will affect a person shall not be taken without giving that person a fair hearing. A fair hearing is one where the person to be affected by the decision is also given a chance to make submissions on his or her case before the decision is taken.

This is also a right that has to be enjoyed by all people. It is again worrying when the Judiciary, which is supposed to safeguard such, then decides to do the opposite. Everyone has a right to approach the courts and have his or her matter adjudicated upon by a competent and impartial judicial officer. But when the Judiciary decides that certain individuals should not be allowed access to the court because the decision of a judicial officer will be tested in court it becomes a problem.

This kind of behaviour works against the view that the court is the final arbiter in cases where persons do not agree on certain judicial issues. So decisions of judicial officers must also be tested and those with powers in the Judiciary should also allow that their decisions be tested, hence we have a Supreme Court. But our Judiciary seems to be sick and failing to follow procedures set by the Judiciary itself.