Corruption courts: Turning water into wine!

A radical shift of the mindset on tackling corruption is needed before rushing to establish other courts. ZACC must investigate cases impartially, the Zimbabwe Republic Police (ZRP) must not arrest to investigate suspects . . .

THIS promises to be a significant year for the role of key players in fighting corruption in Zimbabwe: the police, courts and their officers, the Legislature and the Executive. There is no malice in focusing on bad apples, tasters of the fruits of poisonous trees or lovers of inedible low hanging fruits. Further, corruption is cancerous — doubtlessly. Blisters can be all over society, head to toe if political and general will to curb this social ill is lacking.

Grand acts such as kleptocracy can have deleterious effects on national development just like mere speed money, undue delays, and other petty forms of corruption committed in many subtle ways.

But a caveat must be played in all earnestness. Focus must be made on making the existing court structure fertile for a sustainable culture of democracy before focus shifts to corruption courts. Whatever is done must be compliant with national laws, especially the constitutional freedoms, as well as international law and international best practices. Let me hasten to deal with the fundamental point raised by Chief Justice Luke Malaba during the opening of the 2018 legal year, on the need to establish corruption courts.

Noble as the suggestion might seem, the argument posed in this article is that these courts must not be used impulsively to justify unlawful arrests, or act as springboards for malicious prosecutions.

Public policy considerations and evidentiary sufficiency must be the ultimate considerations in an endeavour to deal with crimes that bear on the public good. There is no doubt that the mooted corruption courts would be modelled in the form of some ‘specialised’, ‘emergency’ or ‘extraordinary’ courts. It’s a given that such courts have generally been shunned at the normative level.

Because they could be established soon, how is their establishment regulated then? Fair trial! Nationally, the right to a fair trial is entrenched in section 69 of the Constitution and the constitutional system has to be followed. We have a functional and independent corruption watchdog, the Zimbabwe Anti-corruption Commission (ZACC).

A radical shift of the mindset on tackling corruption is needed before rushing to establish other courts. ZACC must investigate cases impartially, the Zimbabwe Republic Police (ZRP) must not arrest to investigate suspects; prosecutorial discretions must be exercised impartially by the vetting or set down, remand and trial prosecutors; and the magistrate or judge must respect the accused person’s constitutional freedoms — whether the accused is represented or not.

At the heart of this is the comprehension that the magistrate or judge is the court and case manager. However, the magistrate or judge must not downdress the prosecutor, the accused or his lawyer as well as any other court officials such as the court orderly, the prison officer, and court recorder, interpreter in an open court or in chambers. The State and defence lawyer and the other court officials also owe an ethical duty to respect the court.

Where possible, they must furnish the court with important cases referred to in their submissions to enable the judge to quickly dispense judgments.

Dehumanising language must be avoided during court proceedings. Sound arguments must be properly recorded by the remand and trial courts in a legible manner to enable the higher courts to dispense with the need for transcribed records, especially in bail proceedings. Constitutional measures on compelling reasons for denying bail must always be the checklist for the courts when dealing with unlawful arrests and malicious prosecutions.

Presiding officers must not unnecessarily descend into the arena bearing in mind that Zimbabwe’s legal system is adversarial and not inquisitorial. The courtroom must be a haven of justice not endurance. Effective access to justice must be the reason to convene a court session.

Where tensions escalate, the courtroom must not be converted into a battle front. The magistrate or judge’s chambers must be used as the negotiating room for the parties. Imagine a court official belittling the magistrate or judge in an open court or the court scolding the lawyer in front of his client or the public gallery? It’s not healthy for the interests of justice.

In essence, ordinary courts must not be seen as ordinary ‘water’. If they are seen in this way, then it’s incumbent upon all the stakeholders in the justice system to turn them into wine. For instance, the placement of accused on remand must not border on impulsive decisions from superiors of prosecutors or the court on the basis that the case is high profile, yet there is no evidence to buttress that bald assertion.

The liberty of the accused must be the ultimate measure. It has remarkably been said at law that it’s “better to release ten guilty men than brutally stifle the liberties of one innocent man”.

The trial court must never be used as a remand court. Where the State is tarrying in its investigations, procedural safeguards on the right to a fair trial must be invoked in the interests of justice, which include the accused person’s interests.

Appositely, the accused must remain “innocent until proven guilty” not “guilty until proven innocent”. Essentially, proper handling of interlocutory applications is needed.

Many are times refusal for further remand applications are dismissed merely on the basis of giving the State ‘one last chance’ ad infinitum. This is notwithstanding the fact that some Declarations, which are part of soft international law such as the Singhvi Declaration on the Independence of Justices, show that accused persons must be tried with all due expedition and without due delay by ordinary courts or tribunals under law subject to review by the courts.

Equally,urgent applications for review pending the finalisation of the trial; recusal applications; or constitutional referrals must not amount to an abuse of the court process, especially delaying the finality of the case. Embedded in this is also the need for the court to avoid adopting Caesar’s co-conspirator label of being-the complainant, judge and prosecutor.

Most importantly, the sub judice rule must be respected in this era of fingerprint technology and media insecurity. Admittedly, the information sharing age is here to stay, but procedural safeguards must be put in place so that the accused does not succumb to media trial. Perception has always been the innovator of reality.

From a national interests perspective, the National Prosecuting Authority (NPA), as the chief representative of Government in criminal prosecutions, must adhere to the ultimate checklists of public policy and evidentiary sufficiency when declining prosecution or referring cases to the trial court.

Predictably, the set down prosecutor must judiciously vet cases and must not make it difficult for the remand and trial prosecutor to justify why a suspect must be placed on remand. Pasina mhosva hapanazve! Literally, prosecutors must decline cases where there is insufficient evidence).

To do this, the NPA must empower junior prosecutors to independently decline cases without fear or favour. Of course the roles of prosecutors in charge or the area prosecutors remain important at an administrative level but they must follow the ethical guidelines on independence of the legal profession. Sharon Hofisi is a lawyer and is contactable at sharonhofii@ gmail.com Read the full article on www. herald.co.zw