Godfrey Chidyausiku Chief Justice
RECENT media reports have placed under the spotlight issues relating to the doctrine of separation of powers and the need to refrain from commenting on matters that are sub judice or under consideration by the courts. In the light of that, I wish to make the following observations.We in the Judiciary regard the separation of powers as very critical and a sine qua non for an independent and impartial Judiciary.
The tenets of the doctrine are only meant to stop the Executive and the Legislature from interfering with the Judiciary and vice versa, but to keep each of the three arms of State separate from each other.
The doctrine demands that for a functional State, each of the three arms must respect the constitutional sovereignty of the other two.
We in the Judiciary are very clear that we are courts of law and do not aspire to become members of the Executive or Legislature.
Our constitutional mandate is to interpret the law and apply the law to the cases that come before us.
We provide legal solutions to legal problems.
However, we accept as inevitable that now and again political disputes spill into the courts.
When that happens we do our best to resolve such disputes. It should, however, be appreciated by all and sundry that courts are courts of law and not political tribunals.
May I also take this opportunity to make the observation that it is inappropriate for members of the Executive to communicate to the Judiciary their legal opinions on matters that are pending before the courts.
It is equally inappropriate for Parliament, in plenary or committee, to deliberate on matters that are pending before the courts and are yet to be determined.
A functioning democracy is premised on sound principles enshrining the separation of powers and that while the Judiciary and the Executive all occupy influential positions in society, we are not one and the same and our decisions on issues need not necessarily be the same.
On a similar note, during the year 2010 there was a noticeable increase in the number of legal practitioners and other members of the public communicating with the Press on matters pending before the court, not only commenting on the factual background, which is permissible, but going on at great length as to how the matter should be determined, thus second-guessing the courts.
The principle that protects matters sub judice is as old as the legal system itself.
It is a rule that is designed to ensure that there is a fair trial, one that is not influenced by matters that are extraneous to the provisions of the law.
The rule against commenting on matters that are pending trial has to be balanced against the right of the populace to information.
Thus, the reporting of the factual background surrounding the matter before the court is permissible as recognition of the right to information.
What is not permissible is to intentionally or unintentionally influence the outcome of the trial by not only commenting on the facts but giving legal meaning to the events and commenting on the likely outcome of the trial.
Worse still, it is in violation of the rule protecting matters sub judice for any other fora to publicly pass its own judgment on facts that will come before the court.
This is an excerpt of a speech that was delivered by Chief Justice Godfrey Chidyausiku during the opening of the 2011 Legal Year in Harare on January 10, 2011.