COURT WATCH 7/2012

[11th April 2012]

Code of Ethics for the Judiciary

The Launching Ceremony

The launching ceremony for the Code of Ethics was presided over by Chief Justice Godfrey Chidyausiku and attended by the Minister of Justice and Legal Affairs Hon Patrick Chinamasa as guest speaker, judges of the Supreme Court and High Court and presidents of the Labour and Administrative Courts, members of the Judicial Service Commission, magistrates, members of the diplomatic corps, and the heads of the Police Force and the Prison Service. 

Chief Justice’s address  Speaking as chairperson of the Judicial Service Commission, the Chief Justice outlined the enhanced mandate of the Commission following the coming into force of the Judicial Service Act on 10th June 2010 which he described as the “date of our full judicial independence”.  From that date the Commission became the employer of all magistrates and court staff and assumed responsibility for maintaining the entire Judicial Service [judges, special court presidents, magistrates and supporting staff] taking over employer responsibilities from the Public Service Commission and administrative functions from the Ministry of Justice and Legal Affairs.  In addition to seeing to the staffing and budgeting necessary for such a change the JSC has been working on producing the Code of Ethics provided for in the Judicial Service Act. 

Minister of Justice’s address  The Minister expressed satisfaction with both Code of Ethics and Strategic Plan.  He reminded those present that the Code had taken an unduly long time to complete.  He said he had first mooted the need for a Code in 2001 because as Minister he receives on a daily basis complaints about the shortcomings of the justice delivery system, ranging from inordinate delays and lost court records or disappearing documents, to corruption.

Acknowledgement of support by the Danish Embassy  Both the Chief Justice and the Minister paid tribute to the Royal Danish Embassy and its charge de affaires for financial support to the Commission without seeking to influence or interfere with the operations of the Zimbabwe judiciary.  The Embassy has also donated computers, generators and motor vehicles, meaning that now all 54 magisterial stations round the country have a library computer with internet facilities and access to statutes and case summaries.

About the Code of Ethics

The Code was developed by members of the Zimbabwean judiciary, modelled on the Bangalore Principles of Judicial Conduct. 

Note: The Bangalore Principles are an internationally accepted set of principles of judicial conduct developed by a representative group of Chief Justices and senior judges within the framework of the United Nations Global Programme Against Corruption.  The objective was to address the problem manifested by evidence that, in many countries, across all the continents, people were losing confidence in their judicial systems because they were perceived as corrupt or otherwise partial.  After adoption at a meeting of Chief Justices at The Hague in November 2002, the principles were endorsed by the UN Human Rights Commission in 2003.

Present legal status of the Code  The Code will not have full legal force until it has been gazetted in the form of regulations made by the Judicial Service Commission and approved by the Minister of Justice and Legal Affairs in terms of sections 18 and 25 of the Judicial Service Act.  Gazetting of the necessary statutory instrument is expected to take place soon.  Meanwhile, the authentic text of the Code, as approved by the Minister, has been officially released by the Commission and posted on the Commission’s new website. 

Scope of the Code  Throughout the Code the phrase “judicial officers” is used but in fact this refers only to, and the Code applies only to, the judges of the Supreme Court and the High Court and the Presidents of the Labour Court and the Administrative Court.  The Code does not apply to magistrates or to the chiefs or other traditional leaders who preside over customary law courts – but it is intended that they, too, will have their Codes of Ethics in time.

Structure  The Code has five Parts:

• Part I covers preliminary matters such as definitions and scope of application
• Part II spells out the values and standards that attach to judicial office
• Part III provides for enforcement procedure
• Part IV provides for an Ethics Advisory Committee
• Part V contains one brief section dealing with complaints about reserved judgments already more than 90 days overdue [see below]. 

Standards and values  Part II obliges all “judicial officers” to uphold, maintain and promote the following values:

1. Independence  This refers to the independence of the judiciary and the authority of the courts and says “judicial officers” must not be swayed by partisan interests, public clamour or fear of criticism.
2. Integrity  This calls for every “judicial officer” to ensure that his or her conduct, in and outside court, is “above reproach in the view of reasonable, fair-minded and informed persons”, and not to allow “family, social, political, religious or other like relationships to influence is or her judicial conduct or judgment”.
3. Propriety  This requires “judicial officers” to avoid improper behaviour, and the appearance of improper behaviour, in all their activities, whether in our outside court and to avoid any conduct that may bring the judiciary into disrepute.  The following are dealt with in detail.

• Gifts  Acceptance of “gifts, bequests, loans or favours” in relation to anything done or to be done or not done by the judicial officer in connection with the performance of judicial duties is prohibited.  If a “judicial officer” becomes aware that a family member or associate has accepted a gift from a litigant in a case before him or her, the “judicial officer” must require the litigant to disclose that fact to the other party to the case. 

• Out of court activities  “Judicial officers” are allowed to write on legal matters, teach and give lectures on legal matters and accept honoraria for doing so, and to speak publicly on non-legal matters and participate in civil, cultural, religious education or charitable activities.  But participation in outside activities must not detract from the dignity of the “judicial office” or interfere with judicial duties. 
• Business dealings  These must not reflect adversely on “judicial officers’” impartiality; interfere with the proper performance of judicial duties or exploit or give the appearance of exploiting their judicial position; and must not involve frequent dealings or relationships with legal practitioners or other persons likely to appear before them in court. 
• Practising law is forbidden  But free legal advice may be given to family members or associates as long as the “judicial officer’s” judicial position is not exploited.

4. Impartiality  A “judicial officer” must so conduct himself or herself as to minimise the occasions on which it will be necessary for him or her to be disqualified from hearing cases, and must refrain from public comments liable to be construed as affecting the fairness of proceedings.

• Recusal  is required where a “judicial officer” has personal knowledge of disputed facts in any proceedings, where he or she has previously served as a legal practitioner in a case, has a financial interest in the matter in dispute or that might be affected by the outcome of the case, or is personally biased or prejudiced against a party. 
• Political activities  Political activities, attendance at political meetings, office-holding and membership in political organisations, and soliciting funds for or making contributions to political organisations are prohibited.

5. Equality  This requires “judicial officers” to avoid showing bias or prejudice based on “immaterial grounds” such as race, colour, gender, religion, national origin etc when carrying out judicial duties and to require the same standards from court officials and legal practitioners appearing in their courts.
6. Competence and diligence  This requires “judicial officers” to be efficient, fair and reasonably prompt in the performance of their judicial duties, giving those duties precedence over all other activities.  They must also maintain and enhance the knowledge and skills necessary to perform their duties, including keeping themselves informed about international law developments and international conventions and instruments establishing human rights norms.  Where judgment is not given as soon as a hearing ends, they must use their “best efforts” to give judgment within 90 days and must in any case do so within 180 days.  Where the 90-day limit cannot be met, they must inform their head of court, who will make arrangements to assist the “judicial officer” to give judgment within the 180-day limit.  The Chief Justice is empowered to issue practice notes reducing these time-limits. Judgments already overdue before the advent of the Code must be given within the next 90 days.
7. Efficient and expeditious conduct of judicial business  This requires “judicial officers” to maintain order and decorum in court, showing patience, dignity and courtesy, and to require the same from officials and legal practitioners.  It also prohibits them from assigning work to themselves or permitting litigants to choose which judicial officer will deal with their cases.  Their work in both court and chambers must be attended to timeously.

Enforcement procedure  The enforcement procedure applies to all “judicial officers” except the Chief Justice; a complaint about the Chief Justice is a matter for the President to deal with under the Constitution.  The Code does not specify who can complain about breaches of the Code or what procedure should be followed, but complaints received from members of the public by the Commission or the Minister will be directed, through the appropriate head of court, to the Chief Justice.  If the Chief Justice thinks the complaint merits consideration, he will appoint a disciplinary committee of serving or retired judges to investigate and report to him.  Where a complaint is upheld, the Chief Justice has the power to issue a reprimand, or a severe reprimand or a final reprimand.  [Complaints meriting consideration of removal from office will not be dealt with under the Code, but under the disciplinary procedure laid down in the Constitution.]

Ethics Advisory Committee  The Chief Justice will appoint an Ethics Advisory Committee to “render advisory opinions” to “judicial officers” about the propriety of contemplated judicial or non-judicial conduct.  Its opinions will not be binding on a disciplinary committee dealing with a particular case, but may be taken into account in a “judicial officer’s” favour as evidence of good faith.  The Committee will have 3 to 5 members, the majority to be judges and the remainder legally qualified persons nominated by the Commission.

Comment: No provision for declaration of assets:  It is a pity that the judges did not give a lead to other holders of high public office by making compulsory periodical declaration of assets part of the Code of Ethics.  That  would increase the esteem in which the judiciary is held and make the question of disclosure of interest more transparent.  It might also prompt Parliamentarians and other public officers to declare their assets thus enhancing public ethics, leading to more transparent governance and reducing corruption. 

Documents available from veritas@mango.zw

Judicial Code of Ethics [pdf document]

Judicial Service Act [MS Word 97-2003 document]

Chief Justice’s Address [pdf document]

Minister’s Address [pdf document]

Bangalore Principles of Judicial Conduct 2002 [pdf document]

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.