Judges should not run elections

On 11 September 2018, a video circulated on social media showing some opposition politicians in Parliament chanting: "mbavha! mbavha!" as Justice Chigumba entered the Parliament chamber to conduct the election of the Speaker and Deputy Speaker. A judge being called a thief? It is deplorable. It is an abomination. Why should we expose judicial figures to this?

The July 30 general elections have once again convinced me that judges should have no role in running elections.

Judges are clearly unsuitable for this task. They bring no special skills to bear upon the process. Their calling must be confined to judicial roles. Lending their judicial cloaks to processes so political, divisive and contested such as elections leaves a huge dent on judicial reputation, and ultimately undermines public confidence in the judiciary.

Justice Chigumba has had a torrid time trying to ward off numerous complaints against the conduct of Zimbabwe Electoral Commission (Zec) which she chairs. Her personal life was not spared. She became the subject of the most vicious social media attacks. Judges must always maintain the image of upright judicial officers.

To become the subject of political football undermines the ability of the judge to maintain respectability. When any of the judges suffer this shortfall, the entire administration of justice suffers too. Yet we risk undermining judicial strength by appointing sitting judges to chair Zec. Their presence on Zec has not done much to enhance its perception or the acceptability of electoral results it announces.

But we know why judges are being appointed. It is in order to give the electoral management process the façade of judicial independence and impartiality. It is a façade because experience has shown that the judges so appointed seem not to be in charge of the vital cogs of electoral management. Neither do they seem to bring their judicial talents to bear on the process.

The constitutional permissibility

Our constitution gives us the option to involve judges in running elections. It is an option we should never be tempted to use ever again. Judges must stay on the bench and leave the running of elections to others. Their primary function must be to decide disputes including electoral disputes, without fear, favour or prejudice — the standard demanded by the constitution.

1. Section 238(1)(a) of the constitution provides that Zec shall consist of "a chairperson appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders." Section 238(1)(b) provides for the appointment of eight other members of Zec appointed by the President from the list of not fewer than 12 nominees submitted by the Committee on Standing Rules and Orders.

Immediately, one notices a serious problem. Only the chairperson is appointed after the consultation of an independent and non-political body, the Judicial Service Commission. Even then, consultation of the JSC is in part.

The rest of the commission members are appointed by a politician from a recommended list prepared by politicians.

One needs to just read section 151(2) of the constitution to discover that of the approximately 22 members of the Committee on Standings Rules and Orders, 20 of them could be elected or appointed by the ruling party or with its influence. Effectively, the party enjoying the majority in Parliament and holding the presidency determines the appointment of the eight other commissioners of Zec.

The judge effectively becomes nzungu munyemba! The chairperson does not enjoy any special powers which can override the wishes of the majority of Zec.

Yet the Constitution does not make the appointment of a sitting judge compulsory. It provides that the chairperson of Zec must be a judge or former judge or a person qualified for appointment as a judge. It is preferable that a sitting judge or former judge are not appointed to this position. Zec has proven to be a controversial body. It has become the turf on which vicious political battles are fought. The judge appointed to this body cannot be insulated from these political contestations. In fact, decisions of Zec themselves do not always carry a stamp of legality — an abominable circumstance for one dressed in judicial robes.

Restrictions on judges

Section 165 of the constitution articulates "principles guiding judiciary". Section 165(4) states that members of the judiciary must not: engage in any political activities; hold office in or be members of any political organisation; solicit funds for or contribute towards any political organisation; or attend political meetings.

Most importantly, section 165(6) provides that: "Members of the judiciary must give their judicial duties precedence over all other activities, and must not engage in any activities which interfere with or compromise their judicial duties." The primacy of judicial duty is very important. It ensures that judicial robes are not borrowed for non-judicial work except as otherwise permitted by the constitution. Even in that event, judges must still give their primary function precedence. Appointment to chair Zec is permitted non-judicial work but it is an optional one, and one which we must avoid at all costs.

Judges are prohibited from accepting a position if it is incompatible with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power. The danger of appointing judges to chair Zec is that it ends up with a judge exposed to serious political winds that undermine the performance of judicial functions.

Secondly, the performance of non-judicial functions at Zec may be of such a nature that the capacity of the judge in future to perform his or her judicial functions is compromised or impaired. How would one view a judicial officer called a thief in broad daylight in Parliament by some members of one arm of the state?

Our judges are required to be independent and impartial. The power of the judiciary rests on the esteem in which the judiciary is held. The perception of the independence of the judges depends on, among other things, their integrity. The reputation of individual judges affects the reputation of the judiciary. So does the reputation of former judges. To enhance public confidence in the administration of justice, our judges must be perceived to be honourable individuals throughout their judicial careers and in retirement.

Justice Aharon Barak of Israel in his seminal book Judging In A Democracy describes public confidence as the "essential condition for realising the judicial role . . . in the judge". The judiciary relies for the acceptance and enforcement of its decisions on its own credibility, that is, public confidence in the judiciary. Justice Gleeson of Australia adds that public confidence in the judiciary is not dependent on the belief that all judicial decisions are wise, or that all judicial behaviour is impeccable. What is required is a "satisfaction that the justice system is based upon values of independence, impartiality, integrity, and professionalism, and that, within the limits of ordinary human frailty, the system pursues those values faithfully." There must be unquestioned integrity of character.

As Justice Barak opines further: "Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law. Inside and outside the court, judges must act in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes objective and impartial search for the truth. It is not fiat but reason; not mastery but modesty; not strength but compassion; not riches but reputation; not an attempt to please everyone but a firm insistence on values and principles; not surrender to or compromise with interest groups but an insistence on upholding the law; not making decisions according to temporary whims but progressing consistently on the basis of deeply held beliefs and fundamental values. Admittedly, judging is a way of life that involves some degree if seclusion, abstention from social and political struggles, restriction on the freedom of expression and the freedom to respond, and a large amount of isolation and internalisation. But judging is emphatically not a way of life that involves a withdrawal from society. There should be no wall between the judge and the society in which the judge operates. The judge is part of the people."

Judicial conduct, individual and collective, is central to the preservation of confidence.

Judges offer no special skill

Judges are primarily appointed to the bench for their knowledge of the law and professional integrity; they are not appointed because they are good administrators. If anything, many judges have worked for much of their careers as individuals and done very little administrative work. Zec is an administrative behemoth. It requires able and honest administrators. Legal advice can always be purchased on the market. There is nothing uniquely advantageous in having a judge chairing Zec.

In fact, our experience in Zimbabwe puts this matter beyond doubt. Three different judges have run elections in 2008, 2013 and 2018. None of the elections has come out a unanimous success. The 2008 had a farcical delay of six weeks to announce the presidential election results. The 2013 one did not have an electronic roll on election day.
The computers were reportedly broken down.

Hard copies were handed over to the main opposition party on the eve of the election after a court order. I understand to date no one has seen the 2013 electronic national roll. I need not describe the shortcomings of the 2018 election. If judges were the panacea to our electoral immorality, then we should by now be running competent elections. But we are still far away from delivering an election that is acceptable, despite making judges chairpersons of Zec.

Previously, elections were run through two commissions. One was the Electoral Supervisory Commission (ESC) and the other was the Delimitation Commission. It was not a legal requirement that the chairperson of the ESC be a judge or former judge. In fact, Professor Walter Kamba and David Zamchiya were previously appointed to chair the ESC. They were not judges but just lawyers. One an academic the other a former permanent secretary.

The former constitution required the chair of the Delimitation Commission to be the chief justice or some other judge appointed by the President. Justice Sandura chaired most delimitation commissions. Its role was to determine the boundaries of constituencies into which Zimbabwe is divided. Again, despite having a judge as chair, delimitation decisions were controversial. Zec now performs the dual role of electoral supervision and delimitation.
Zec simply needs to be run by efficient, honest and good human beings. These qualities are not unique to judges. If anything, judges lack experience in running a huge administrative machinery that Zec should be. No training in law prepares one to run an efficient constitutional commission. For most judicial officers, their professional life before the bench involves little administrative work. They work mostly as individuals. This does not prepare a judge to be an efficient administrator.
National logistics committee
Just before the July 2018 elections, Veritas, a non-governmental organisation, went to court seeking, among other things, the transparency of Zec particularly in disclosing the details of the security personnel seconded to it. This arose out of fears that Zec's independence was being compromised by the secondment of security services personnel to Zec. The involvement of the Zimbabwe Defence Forces in what is known as the National Logistics Committee was central to the complaint. Veritas alleged that this committee was used in the previous election without any legal basis. There were fears that the direction and control of Zec's administration lay in the hands of security services. If this allegation is true, it confirms that a judicial head does nothing to change the direction and conduct of Zec. More fundamental changes ought to happen, and a judicial officer is simply not the instrument of change.

In conclusion

Public confidence in the judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, "a judge should be a political eunuch."

A judge must do nothing which could give rise to any suggestion of political partisanship. As was stated in the 1989 American case of Mistretta v United States: "The Judicial Branch's reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action".

Judges must remain political eunuchs. They must decide disputes arising from elections and not be the sources of disputes.

Mafukidze practises as an advocate in South Africa, Zimbabwe and in the region.