Editorial Comment: Efficiency in justice delivery system crucial

FOR a justice delivery system to work, it has to be effective. Five senior judges said as much at the opening of the new Legal Year in all centres where there is a resident High Court judge. Everyone involved in the system has to be both efficient, properly staffed and collaborating.

Chief Justice Luke Malaba and the other judges did note that the courts themselves are now working at a far higher level of efficiency than was seen a few years ago, have cleared backlogs and are being measured for their efficiency.

The Judicial Service Commission, which is headed by the Chief Justice himself and brings together representatives of other judges, magistrates and the legal profession as well as suitable lay members who can raise the sort of questions that those outside the legal world want considered, has been relentless in its pursuit of building excellence and accessibility.

There has been a continuous programme to add to the chain of magistrates’ courts and most towns of any size now have a resident magistrate with the larger and more isolated suburbs of big cities now also getting a permanent court in their midst. The fact that the legal year opened in five High Court buildings shows that far more civil law, as well as the top end of criminal law, is now being decided closer to the people who are involved.

The Judicial Service Commission has also implemented a performance management system to gauge the effectiveness of every judge and magistrate. This must measure both the amount of work every judicial officer does, as well as its quality, which the judiciary can do perhaps more easily than others since a magistrate or judge who has very few decisions changed on appeal or review is obviously doing well.

The review system, whereby all the more serious criminal cases decided by magistrates are routinely checked over by a judge or a pair of judges, along with the sentencing guidelines promulgated by the commission, means we are seeing far greater uniformity and so fairness in the courts along with a rigid adherence to the law and the Constitutional safeguards.

Both the Chief Justice, and Deputy Chief Justice Elizabeth Gwaunza, also brought up the potential for corruption in the judicial systems and the continuing need to make sure that it simply did not happen and that all responsible for dispensing justice led exemplary lives in both public and private. Zero tolerance has produced results.

The spread of the judicial services has also seen the welcome opportunities for qualified legal practitioners to move out of the big cities and offer legal services in many smaller centres, the possibility of court work added to the routine attorney work making this sort of business viable and competitive.

The Chief Justice and his colleagues addressed the need for all involved in the criminal justice system to be fully efficient and to work together. There are obvious limits, since magistrates and judges decide guilt or innocence while police investigate crime and the prosecutors present the cases. Collaboration obviously does not mean that the judiciary move away from independence.

But it does mean that we should not have endless delays while evidence is assembled by the police or cases are prepared by the prosecutors or witnesses are tracked down and properly summoned with adequate warning. 

Some delays are unavoidable, and some are even generated by defence lawyers who seem to have been instructed to postpone the day of reckoning until everyone involved has died of old age. But we see cases where it seems to take almost forever for the police to assemble evidence, and the prosecutors seem ill prepared to present their cases.

The new National Council on the Administration of the Criminal Justice System, chaired by the head of the High Court Judge president Mary Zimba-Dube and including, with others, Prosecutor General Justice Loice Mutanda-Moyo, is designed to make sure that the administration works properly and better so that the accused are not left for long periods in a state of limbo before their guilt or innocence is established. 

We have argued before that prosecutors and the police should work more closely in assembling cases, as is done in a range of other countries, so that holes in a case are identified earlier and the correct charges are laid that are supported by evidence. Prosecutors are not trained investigators but they need the facts, and police are not trained lawyers, but need to know what to look for so the correct charge is laid and a reasonable case assembled. 

It is in these earlier stages that the mistake of arresting the wrong person can be sorted out and the investigation widened to find the actual perpetrator. In almost all criminal cases there is no doubt that a crime has been committed, although there are some crimes where this needs to be established if they reach the trial stage.

The main question for the investigation is finding who committed it and the main question for the courts is whether the evidence assembled and presented proves beyond reasonable doubt that the person before the court is the person who committed the crime. This is a fairly obvious concept but it does mean high levels of skill and efficiency right down the chain to the constable who receives the first crime report.

It has been said that justice delayed is justice denied, at least to someone who might well be the victim of crime. This is a bit of an exaggeration but it does highlight the need to ensure that everyone involved must move forward at due deliberate speed so that everything for investigation, prosecution, defence and final decision is done properly, fairly and correctly.