Submissions by Zimbabwe Lawyers for Human Rights to the Senate Thematic Committee on Human Rights
A fully functioning and effective justice delivery sector is the foundation for the rule of law in Zimbabwe. Key stakeholders in the justice delivery chain in Zimbabwe include the judiciary, the National Prosecuting Authority, Correctional Services and the Zimbabwe Republic Police and legal practitioners.
Over the years, the justice delivery system has been compromised due to lack of adequate resources (human, material and financial).Lack of security of members of the legal profession has been another challenge faced. In some instances, the members of the legal profession have not been afforded the protection they deserve when carrying out their work, thus negatively impacting on their independence. In particular, judges, prosecutors and lawyers forming part of the legal profession have come under attack; this has not only compromised their effectiveness but the smooth delivery of justice. Unless members of the legal profession play their respective roles fearlessly and independently there is a serious risk that a culture of impunity will prevail.
1.1 Alignment of laws impacting on justice delivery with the Constitution
A number of laws impacting on justice delivery have to be aligned with the Constitution that came into force on 22 May 2013. Some of the priority laws include those that are relating to criminal procedure, prisons, as well as the codification of crimes in the Constitution. Of particular concern is the fact that the Constitution now offers additional rights to accused people that have to be respected by law enforcement agents.
2. Administrative issues
ZLHR commends the Ministry of Justice for taking steps to clear backlog of cases at Magistrates and Supreme Court as highlighted in the Speech by Chief Justice Honourable Godfrey Chidyausiku on the occasion of the official opening of the 2014 legal year. However, there continues to be a backlog of cases in the High Court and the Labour Court with 23% of criminal appeals in High Court being finalized in 2013. Other than ensuring that there is adequate staff for the smooth functioning of courts, with provision of adequate continuous relevant legal training, renovations or building of court premises must also be expedited. Other administrative issues that have to be addressed include the rules of court;
Rules of procedure, the Constitutional Court does not have rules of procedure. The Chief Justice has issued Practice Directions covering the filing and management of cases, there is need for comprehensive procedures to be drafted and adopted for greater certainty for practitioners and even other interested stakeholders. Rules of procedure of the High Court on urgent applications have to be revised to include clear timeframes within which such applications must be heard.
Case management, most court registries are still operating manually. While there has been some attempt to introduce electronic case management at the Harare High Court, the system needs improvement, and needs to be rolled out to other centers, the high and lower courts around the country. There is also a need to provide court registries with adequate equipment and movement towards full computerisation of case management for improved case flow. Government must also expedite the construction of courts, as well as equipping the courts with relevant tools of trade to increase access to justice for citizens.
Access to government legal aid services, is not adequate. The Legal Aid Directorate is inaccessible to many as it is not decentralised with two offices in Harare and Bulawayo. Government must decentralise the legal aid services provided by the Legal Aid Directorate.
Costs, practice directions (in particular practice direction No. 1) issued by the Chief Justice requiring litigants to pay for service of notices of set down in cases that are pending in the higher courts, has had the negative effect of putting justice out of reach of ordinary citizens. In the end, a litigant has to pay for service even in instances where the distance is less than 100 meters or the lawyers are in the same building. Costs that make access to justice prohibitive must be reviewed and or removed.
2.1 The National Prosecuting Authority
The National Prosecuting Authority (NPA) as established by section 258 of the Constitution is responsible for instituting and undertaking criminal prosecutions on behalf of the state. The NPA is also supposed to discharge any functions that are necessary or incidental to such prosecutions. A National Prosecuting Authority Bill was passed by parliament although it is yet to be signed into law. Over the years, the NPA (the Attorney General) has been perceived as partisan in its application of the law. This has not only compromised the prosecutorial independence but has eroded public confidence in this institution.
Composition of the NPA, ZLHR remains concerned at the continued engagement of police prosecutors in the justice delivery system. This compromises the independence of the NPA as police are members of the executive, who as law enforcement agents are tasked with investigating the same crimes that they then prosecute as police prosecutor.
Abuse of section 121 of the Criminal Procedure and Evidence Act, over the years, prosecutors have abused section 121 arbitrarily resulting in detention for an additional seven days of the accused persons who would have been granted bail by the magistrate. The reasons for opposing bail granted are not stated by the prosecutors when they invoke this section.
Highlights of cases in which section 121 was invoked;
In the year 2014 the state invoked section 121 in one of the cases that ZLHR handled and this was the case of Genius Kadungure.
In 2013, section 121 was invoked in eight cases, in one of the cases lawyers were called to the area public prosecutor's office where they were advised that the State was withdrawing the fraud charge and the invocation of Section 121 and no reasons were given for that alteration. In two of the cases the clients were released when the state did not appeal. Another case is now on trial stage. One of the cases was appealed and dismissed by a High court judge
In 2012, the state invoked Section 121 in three cases.
In 2011, ZLHR documented 10 cases. In 4 of the cases no appeal was filed. In six of the cases the appeals were dismissed by High Court judges.
In 2010, ZLHR recorded three cases where section 121 was invoked.
In 2009, 13 were recorded were section 121 was invoked. In 12 of these cases, the appeals were not filed with one having been filed and dismissed.
In 2008, four cases were recorded and in three of them no appeals were filed. One case was that of a lawyer - Adv. Eric Matinenga but it was dismissed on appeal.
Zimbabwe Republic Police
There is need to ensure that the police become increasingly aware of the new constitutional provisions concerning the rights of accused persons. The police have over the years perpetrated violations against suspects in some documented cases, with torture, and denial of pretrial rights.
Freedom from torture, is an inalienable human right. Many international conventions forbid governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. ZLHR as well as other lawyers have continued to bring claims against the police in cases of torture against suspects. Anti-torture laws must be drafted and adopted and enforced.
Arbitrary arrest and detention, continues and in most cases, police arrest before investigating and there will not be a reasonable suspicion that an offence has been committed. In 2013, a total of 425 people were arrested, and or detained and later released without being charged, these figures only represent cases undertaken by ZLHR lawyers. This conduct wastes state resources as well as violates the rights of those targeted.
There is need for extensive education on the constitution to members of the police.
Establishment of a Constitutional Court in section 167 of the Constitution will go a long way in the protection of the constitution. There have been recent interviews to appoint judges on the Supreme Court. The Constitution provides that in section 184 that "Appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe."
Procedural barriers to access justice continue to exist, there are no clear timelines of when urgent applications must be set down for hearing and finalized (with a ruling being handed down). In some cases, urgent applications have been heard and the ruling has been reserved. This defeats the whole purpose of filing the urgent court application.
Defiance of court orders, is perpetuated by the week contempt of court procedures. Defiance of court orders undermines the independence of the judiciary and erodes protection of the law, which the judiciary gives effect to in rulings and judgments.
Delays in justice delivery remain a major cause for concern. There are a number of court cases that have been pending for over six years. This has negatively impacted on the right to access justice for citizens, and has also contributed to overcrowding in prisons.
The inevitable consequence of imprisonment is the loss of liberty. This does not in itself mean that authorities are permitted to deny prisoners' basic rights to dignity. As a state party to the various regional and international law instruments such as the African Charter on Human and People's Rights and the International Covenant on Civil and Political Rights, the Government of Zimbabwe has a positive duty to ensure that rights of prisoners are upheld. In particular, the rights of pre-trial detainees who remain innocent until proven guilty need to have their cases expeditiously dispensed of.
Resource constraints for prison service, poor conditions for service fuel malpractices such as corruption. There is need to increase funding on the part of government to the correctional services so that detention facilities' infrastructure could be upgraded, provision of adequate nutrition, clothing and other social amenities could be enhanced so as to meet humane standards of treatment for detainees.
Overcrowding could be addressed if different categories of detainees are dealt with accordingly. Keeping illegal immigrants in prison is a challenge as there are people waiting for deportation for more than three 3 years now. There is need to interrogate why these people are being kept for so long. There should be a distinction between people who are awaiting trial and those in the immigration. A Prison Court could be established with magistrates/judges visiting the prisons and hearing bail applications to reduce the number of inmates.
There is also need to carry out a study on arrest and conviction ratio in the country because if the arrest ratio is higher then there is something seriously wrong if most arrested people end up being acquitted.
Establishing an integrated case flow management system will enable more rapid processing of cases among pre-trial detainees.
Improvement of conditions of service for employees within various institutions in the criminal justice system such as the police, prison services, the Attorney-General's office as well as the judiciary are also seen as complementary to efforts of improving professionalism and efficiency in the country's justice delivery system.
Attacks on legal practitioners
The unlawful conduct of Zimbabwean law enforcement officers in arresting lawyers, is consistent with an ongoing pattern and practice in Zimbabwe of undermining the rights and professional obligations of lawyers to defend their clients. It also undermines the rights of those clients to a fair trial. Such practices of associating the lawyers with the cause of their clients, violates the Constitution as well as international law and standards on the right to a fair trial and the role of the legal profession. The Government of Zimbabwe is under an obligation to ensure that lawyers carry out their professional duties without fear, intimidation, obstruction, harassment, persecution or unwarranted interference. Some of the cases include the case of;
Beatrice Mtetwa – On 17 March 2013, Beatrice Mtetwa was arrested in Avondale. On arrest she was charged with obstructing or defeating the course of justice in contravention of Section 184 (1) (g) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).
Alec Muchadehama - On 14 May 2009, Muchadehama was arrested by officers of the Law and Order Section of the Zimbabwe Republic Police at the Rotten Row Magistrates Court on allegations of obstructing the course of justice. He was attempting to get bail orders for three of his clients. He was found not guilty by the court, but the state proceeded to note an appeal out of time against the ruling of the magistrate, the case is still ongoing.
Trust Maanda - He was arrested on 8 May 2014, on allegations of obstructing or defeating the course of justice. The offences arose from a case that Maanda was handling involving clients, who filed an application at the High Court for the release of their impounded cars. The clients also sought compensation for the heavy-handed treatment they suffered at the hands of the police. The police claimed that Maanda incited his clients to institute legal proceedings against police and described police conduct as reprehensible. Reduced to its specifics, Maanda's arrest meant that no legal practitioner is free to take instructions given by a client.
 @ ZLHR 23 July 2014
 At the beginning of 2013, there were 233 appeals pending before the Supreme Court from all inferior courts and tribunals. An additional 289 appeals were filed during the course of the year making a total of 522 appeals for the year. Of these, a total of 409 cases were finalised, giving the court a clearance rate of 78%. During the course of 2013, the magistrates' courts completed a total of 85 008 criminal trials against an inflow of 82 383 cases for the whole year. Available on: http://www.jsc.org.zw/images/court_roll/speeches.pdf accessed 22.7.2014