Ensuring justice and sanity in the legal fraternity

Sharon Hofisi Legal Letters
Lady Justice is often depicted as blind so that every mortal can have access to her. In most cases, justice is seen as synonymous with equality or fairness. For Zimbabwe, the Constitution considers justice to be part of the principles of good governance, together with factors such as transparency, accountability and responsiveness.

Justice is a concept found in most juridical disciplines, whether those under common law or civil law. Those in the justice fraternity always talk about “doing something in the interests of justice”, “making sure that the interests of justice are served”, or “serving the interests of justice”.

In some cases, presiding officers in court cases describe the interests of justice to include the interests of the wronged party, the accused party and the greater society which can be affected by the case consideration. Apposite to this are statements such as “better acquit 10 guilty men than convict one innocent man”,’ “temper justice with mercy”, or “trade leniency with justice”.

We sometimes hear statements like “justice delayed is justice denied”. In divine law, especially biblical statutes, we hear statements such as “let justice roll down like waters”. In our Zimbabwean legal system and in various court judgments, we can hear the court (also used here to refer to a judge or magistrate) referring to statements like “justice must not only be done. It must be seen to be done”.

The above statements have a common thread in them – those involved in adjudicating cases must show fairness to the affected party or community. They must be impartial and strive to enable disputants to realise the benefits of justice without fear or favour.

The realisation of justice is best explained using one of the four duties of the State that are listed in Section 44 of the Constitution of Zimbabwe, 2013. These duties include protection, promotion, respect and fulfilment of human rights. Fulfilment is one sure way of making justice come to fruition. It consummates protection, promotion and respect of fundamental human rights.

The rulebook of justice can also be explained using various pillars. Each pillar focuses on certain aspects that demand that justice be done or be seen to be done, whichever case is preferred. It is normal to hear a litigant, disputant or general member of a particular society saying that justice was done or that justice wasn’t done. Similarly, one may say at least justice seems to have been done, or the court never wanted justice to see the light of the day.

I can take you through the pillar called ordinary justice. This pillar points to a basic conception of equality and fairness that each individual seeks to attain. For Zimbabwe, we may use the equality and non-discrimination clause under the Bill of Rights. Section 56 seeks to protect, promote, respect and fulfil the equal protection and equal benefit of the law.

The section lists, but doesn’t exhaust, grounds that can be considered by a competent court of law, tribunal or forum when dealing with non-discrimination. Shunning discrimination is the first sure way of allowing a person to access basic justice.

Other forms of justice deal with certain ends. Transitional or transformative justice focuses on dealing with a grim past (after a conflict or serious human rights violations). Conflict may be slight or endemic. Transitional moments in a specific society shape the course of transitional justice to be  taken.

Reparative justice focuses on the need to compensate or make amends after a violation or serious breach (contractual, delictual or constitutional). Those who commit wrongs can make recompense or restitute the complainants or injured parties. Reparative justice is sometimes called restorative or compensatory justice. The best way to repay someone is usually in damages, usually estimated or assessed using actual losses incurred.

Distributive justice is usually associated with “resource wars, blessings or curses” in a society. Different communities demand that they be allocated certain resources or specific quotas in a society. We can use women quotas or devolution here. For devolution, each province in Zimbabwe has some competitive and comparative advantage which must benefit  locals.

Mediated justice usually focuses on peace-building. Perhaps most Zimbabweans are aware of the roles played by Thabo Mbeki and Jacob Zuma during the Government of National Unity (GNU) or Father Mukonori during Operation Restore Legacy.

We may also talk about retributive justice where people focus on general or special deterrence – the “tit for tat”, “tooth for tooth” or “eye for an eye”. I am no regular fan of this form of justice as it is often abused by presiding officers. In some instances, courts impose moral judgments to punish alleged perpetrators detached.

In all this, there must be sanity in the courts. The court must respect its officers (the lawyers, interpreters, court orderlies, prison officials, expert witnesses, court recorders, intermediaries, and so forth). Proper investigations must always precede arrests; bail monies must not be prohibitive; courts and prosecutors must keep a professional distance (e.g. a judge or magistrate must always see both parties in his or her chambers) and sound legal arguments must lead to sanity in the legal fraternity.

The briefcase or bogus lawyer must be dealt with in manners that shape legal ethics; the junior lawyer and senior lawyer must treat themselves decorously at the bar; courts must not unnecessarily descend into the arena and in exceptional cases must invite the lawyers to the bench; pocket acknowledgment, greasing the wheel or body and all other forms of corruption must be shunned.

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