Veritas Zim
Zimbabwe’s justice system comprises institutions that are central to resolving conflicts through the administration and enforcement of the law. These institutions include:
· the Ministry of Justice, Legal and Parliamentary Affairs and its various departments
· courts of law and the Judicial Service Commission
· the Attorney-General’s Office
· the National Prosecuting Authority
· the Police Service
· the Prisons and Correctional Service, and
· last but not least, legal practitioners (i.e. lawyers) who comprise the legal profession.
In later bulletins we shall deal with these institutions individually and in more detail. In this bulletin, the first of the series, we shall give a brief overview of the institutions and the roles they play in the system.
The Ministry of Justice, Legal and Parliamentary Affairs
We start with this Ministry because it plays a co-ordinating and supervisory role in the justice system, serving as a link between central Government and Parliament and other justice institutions such as the courts, the Judicial Service Commission and the Attorney General’s Office and the National Prosecuting Authority.
The Ministry’s mission is to develop, uphold and provide accessible, efficient and effective justice delivery. The Ministry’s core functions include:
· promoting sound legal services
· reviewing laws and taking steps to revise and reform them
· undertaking legal research and formulating policies
· registering and protecting rights in land and intellectual property and registering companies and other business entities
· promoting and upholding the constitution, and
· co-ordinating parliamentary business.
The Ministry’s co-ordinating role is exercised through the Minister, who is a member of Cabinet and Leader of Government Business in Parliament. The Ministry’s other functions are exercised through its various departments and offices including:
· the Deeds, Companies and Intellectual Property Office, which is responsible for registering business entities, rights in land and intellectual property rights
· the Department of Constitutional and Parliamentary Affairs, whose purpose is to promote the Constitution and facilitate the smooth running of Parliament
· the Legal Aid Directorate, which provides legal assistance to persons accused of certain crimes
· the Department of Strategic Policy Planning and Legal Research, which carries out research to help formulate legal policy and amend the law, and
· the Law Development Commission, which is responsible for recommending legal reform and revising the statute law to keep it up to date.
The Courts
The courts in Zimbabwe are established in Chapter 8 of the Constitution. The main courts are:
· local court’s (commonly referred to as traditional or customary courts) presided over by traditional leaders. These courts deal only with cases involving customary law.
· magistrates court, which deal with appeals from local courts, civil and Criminal cases within their provinces
· the Administrative Court, which deals with cases involving administrative decisions made by Ministers and public officials
· the Labour Court, which deals with cases involving employment and labour
· the High Court, which has power to deal with all criminal and civil cases throughout Zimbabwe
· the Supreme Court, which is a court of appeal from the decisions of all the courts previously mentioned, and
· the Constitutional Court, which deals with constitutional issues.
In addition to these there are other more specialised courts such as Small Claims Courts and Children’s Courts.
Criminal and civil courts
Under section 193 of the Constitution, only the Constitutional Court, the Supreme Court, the High Court and magistrates courts have power to deal with criminal cases, though disciplinary tribunals can punish members of the Defence Forces, the Police and other uniformed forces for breaches of discipline.
The distinction between criminal cases and other cases (called “civil cases”) is broadly this:
criminal cases are those which aim to punish people who commit crimes, i.e. breaches of the law for which the State imposes punishment such as a fine, imprisonment, etc.
civil cases are those involving disputes between persons – and the legal definition of a person includes companies and other corporate entities.
The Judicial Service Commission
The smooth and effective functioning of courts is administered through the Judicial Service Commission (JSC) which is established by section 189 of the Constitution and is chaired by the Chief Justice. Its members include judges, magistrates and representatives of the Law Society and Universities.
The JSC is responsible for advising on the appointment of judges and appointing magistrates. It also has much the same functions in relation to judicial officers and persons employed in the courts as the Public Service Commission has in relation to public servants. These functions are set out in the Judicial Service Act.
The Attorney-General’s Office
The office of Attorney-General (AG) is created by section 114 of the Constitution. The AG is appointed by the President as the Government’s principal legal adviser. He or she is an ex-officio member of Cabinet and both Houses of Parliament, which means that the AG may sit in Cabinet and Parliament and contribute to debates but cannot vote. For a person to qualify to be appointed as AG they need to be qualified for appointment as a judge of the High Court. The AG has four general functions which are:
· to act as principal legal adviser to the Government
· to represent the Government in civil and constitutional cases
· to draft legislation on behalf of the Government, and
· generally, to promote, protect and uphold the rule of law and to defend the public interest.
The AG’s office is divided into three divisions, namely the legal advice, legislative drafting and civil divisions. Specific provisions governing the day-to-day discharge of the functions of AG’s office are provided for in the Attorney-General’s Office Act.
The National Prosecuting Authority
The National Prosecuting Authority (NPA) is one of two institutions established under Chapter 13 of the Constitution to combat corruption and crime [the other is the Zimbabwe Anti-Corruption Commission]. The NPA is responsible for conducting criminal prosecutions on behalf of the State. The Prosecutor-General heads the institution and he is in charge of all public prosecutors who represent the State in criminal cases. Specific details on how the NPA carries out its mandate are provided for in the National Prosecuting Authority Act.
The Police Service
The Police Service, i.e., the Zimbabwe Republic Police, is established by section 219 of the Constitution. Its main function is to detect, investigate and prevent crime, but section 219 gives it some additional responsibilities:
· preserving the internal security of Zimbabwe
· protecting and securing the lives and property of all people
· maintaining law and order, and
· generally, upholding the Constitution and enforcing the law without fear or favour.
The Police Service is under the command of the Commissioner-General of Police, appointed by the President after consultation with the Minister of Home Affairs and Cultural Heritage. The President can remove the Commissioner-General from office for any reason, after consulting the Minister. The day to day administration of the Police Service is governed by the Police Act.
The Prisons and Correctional Service
The Prisons and Correctional Service is established by section 227 of the Constitution. It has two main responsibilities, which are to administer prisons and correctional facilities and to protect society from criminals through the incarceration of convicted persons and their re-integration into society. The day to day administration of the Service is governed by the Prisons Act – though a Bill to replace that Act is currently being considered by Parliament.
Points Common to Both the Police and Prisons Services
Both the Police Service and the Prisons and Correctional Service form part of the security services established by Chapter 11 of the Constitution. That Chapter states that members of the security services must act in accordance with the Constitution and the law. They must not act in a partisan manner and must not further or prejudice the interests of any political party. Also, serving members of security services must not be active members or office bearers of any political party or organisation.
The Legal Profession
In a broad sense the legal profession comprises all lawyers, wherever they are employed, and includes judges and magistrates. In a narrower sense it comprises registered legal practitioners in private practice and those who provide legal services to governmental and private-sector institutions.
As we shall explain in a later bulletin, an independent legal profession is vital to the proper administration of justice and the protection of human rights.
The Law Society of Zimbabwe
The Law Society is responsible for maintaining professional standards in the legal profession and ensuring that legal practitioners carry out their work competently and ethically. The Society is run by a Council consisting mostly of persons elected by members of the Society. All registered legal practitioners resident in Zimbabwe are entitled to be members of the Society.
Inter-dependence of Justice Sector Institutions
All the institutions we have mentioned in this bulletin depend on the others to exercise their functions effectively. None of them operates in isolation. For example:
The courts: While the courts have ultimate decision-making power, they depend on other justice sector institutions. Their decisions in civil and criminal trials depend on the evidence. In criminal cases evidence is collected by the Police and presented to the courts by public prosecutors employed by the NPA. The thoroughness and quality of police investigations determines the quality of the evidence presented by prosecutors. If the investigations are conducted carelessly or illegally the prosecution is likely to fail and criminals will go free or the innocent punished.
Public prosecutors: They play a key part of the criminal justice system. They decide whether to start or continue prosecutions, and their competence and diligence play an important role in the outcome of courts’ decisions. Without a well-performing prosecution service, the effectiveness of the criminal justice system would be seriously undermined. Prosecutors must be fair, taking into account the rights and interests of accused persons, their victims and society as a whole. If they are motivated by political or other improper considerations the whole criminal justice system will be tainted.
The legal profession: Legal practitioners keep the entire justice system working: without them there would not be a justice system. To keep the system running smoothly legal practitioners have to co-operate with each other and with judges and magistrates (who are themselves legal practitioners). In criminal cases they must co-operate with public prosecutors (who are also practitioners) and with the Police.
Conclusion
The institutions highlighted in this bulletin were put in place to enhance access to justice for members of the public. In future bulletins we shall deal with them individually and in more detail, showing how they perform their roles and how they serve and interact with the public.
There is one final point we should make here and we shall reiterate it in future bulletins in this series. An effective justice system is essential to good governance, the rule of law, democracy and the protection of human rights. If people cannot find justice in the justice system they will try to get what they want through extortion, force and violence. Each of the institutions that form part of the justice system must play its part, and if any one of them fails the well-being and perhaps even the existence of our society is imperilled.
