CHIEF Justice Luke Malaba has described some of the
austerity measures introduced by Finance minister Mthuli Ncube as a threat to
the rule of law and implored the minister to allow the Judicial Service
Commission (JSC) space to deal with its own financial affairs.
The Chief Justice made the remarks in Harare yesterday at
the official opening of the 2019 judicial year. Justice Malaba said the
Judiciary should be allowed to independently run its affairs.
“I also acknowledge the policy statements and the austerity
measures directed by the Minister of Finance and Economic Development and
appreciate that the Judiciary will not be spared from these. It is, however,
important for Treasury to take note of (some) fundamentals,” he said.
“The Judiciary, because of its nature and unlike the other
two arms of State, is unable and has no means of aggressively pushing for
increased budgetary allocations. This is the reason why the JSC tries to live
within the means allocated to it. It will, therefore, be a self-defeating
exercise for Treasury to attempt to unnecessarily ring-fence the JSC’s budget
and stifle the Judiciary from accessing its budgeted funds timeously.
“Any such measures are a threat to the independence of the
Judiciary and to the rule of law. An independent Judiciary is one that receives
enough funding to run the courts in order to protect the rights of its
citizens. It is only a Judiciary that is independent which decides matters
impartially without fear, favour or prejudice; and is impervious to extraneous
influences.”
The top judge further said it was only a truly independent
Judiciary that could withstand the pressure exerted by the demands of the
principle of the rule of law, adding that the doctrine of separation of powers,
upon which the country’s constitutional democracy was premised and specifically
embraces the independence of the Judiciary.
“That independence includes financial independence. It is
important in this context that the Judiciary is able to access funds allocated
to it in the budget timeously in order to execute its constitutional mandate.
Anything contrary to this will negatively affect court operations.
Unfortunately, that in turn may be interpreted as interference and is certainly
a threat to the rule of law,” he said.
“This is always done within the confines of the budget
allocated to the JSC. That power was given to ensure that the Judiciary remains
independent and need not depend on the benevolence of other State entities. I
therefore urge everyone, and particularly Treasury, to allow the Judiciary
space to deal with its own financial affairs.”
An independent Judiciary was one of the cornerstones of a
democratic society and to fully discharge its responsibilities, it must not be
subject to the improper influence of other arms of government, particularly the
Executive which has often been accused of tampering with the wheels of justice,
he added.
Justice Malaba further said the JSC also required huge sums
of money to fund the payment of witnesses, who give evidence in courts, without
which the courts would not be able to function.
He also said significant resources must be provided to his
commission to enable it to procure stationery, furniture and equipment for use
in courts adding it was his commission, by virtue of the powers reposed in it
by the Constitution and the JSC Act, which has authority to set conditions of service
for its judicial officers and members of the judicial service. Newsday
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