Legislators reject Judicial Amendment Bill

LETTICIA MAGOMBO

Legislators have rejected the Judicial Laws Amendment Bill saying it violates the Constitution, Business Times can report.

The Bill was brought to the National Assembly for its second reading.

The Bill seeks to amend the Constitutional Court Act, Supreme Court Act, the High Court Act, the Administrative Court, the Labour Court , to adopt virtual  hearings.

Harare East legislator, Tendai Biti, said that the Bill was in direct contradiction of section 50 of the Constitution by calling for virtual proceedings.

“The Constitution is very clear in Section 50 that a person is entitled to a free and fair trial by an independent impartial court.  That same Constitution in Section 50 makes it very clear that the trial must be open to members of the public and particularly a criminal trial; it is so important that a criminal trial is open to the public.

What is on trial is not just the accused person who is in the dock but also the conduct of the judicial officer, the conduct of the judge, of the prosecutor, the conduct of the assessors if it is a criminal trial in the High Court, the conduct of the defence lawyer too because defence lawyers sometimes go to court without preparation.

“Also, some of the trials,their very nature demands openness.  Take for instance trials to do with corruption, serious crimes, murder for instance – relatives and members of the public want to sit in the gallery to witness the trial.

“This Bill says criminal trials will be virtual, but forgets the fundamental reason why the Constitution guarantees and provides that criminal trials should be open.  Hon. Speaker, we cannot pass a Bill that collides with the Constitution. There is no way that we can allow criminal trials to be virtual.”

He said that the Bill was also limiting the powers placed on the High Court by the constitution which was a violation of section 5.

“Another issue of concern is the provision of Section 5 of the Bill.  The provision says the High Court should not have jurisdiction in matters where other lower courts have got jurisdiction.  So, Labour Court matters are being taken out of the High Court, Magistrate Court matters within the jurisdiction of Magistrate Courts.  This is a direct infringement of the Constitution because the Constitution grants the High Court inherent jurisdiction so the High Court must have total jurisdiction over every matter.  It is important that inherent jurisdiction of the High Court must be maintained because the High Court is not a creature of statutes. The High Court is a creature of the common law so that jurisdiction must be maintained.”

Anele Ndebele, a member of the  Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs concurred with Biti saying virtual proceedings were not practical in the Zimbabwean context and would infringe the rights of those living with disabilities to a free and fair trial.

“Without attacking the Speaker’s recent judgement, it is so difficult for anyone to say I have left Lupane and driven to Bulawayo, therefore I am guaranteed of a stable internet.

ZESA will pounce on you and even the network itself will just fall on your feet, and you will be unable to participate in an important trial,” Ndebele said.

He added: “Suppose I am living with blindness and I am suddenly expected to participate in proceedings on a computer, we are possibly leaving out those with disabilities.  What about those without computer literacy?  Justice then becomes a privilege for the affluent, the educated.  So, what happens to the indigent?  Justice must be for all.  I believe Mr. Speaker Sir, the amendments that this Bill proposes come at the expense of fundamental human rights.  The Bill requires extensive amendments to make it compliant with the Constitution and the basic concepts of fairness that lie at the heart of our procedural law.”

Another legislator, Rosemary Nyathi, who is a senator for Hwange Central,  said the Bill must be halted.

“Hon. Speaker Sir, decisions are made only when you are certain that this decision is going to come out positively.  We do not make decisions when we think they may be 50% successful or may fail.  So if we are not yet sure whether this Bill will be able to service our people comfortably, I would therefore, recommend that we set this Bill aside until we have gotten to a point where we are quite automated,  internet connectivity is almost 100% and where we also assess the literacy rate of our people and whether they have also comprehended the use of computers and cell phones to be in court.

So, I want to stand with other honourable members and say, “May we please set this Bill aside until it is well cooked.”

ZANU-PF legislator for Makoni South constituency, Misheck Mataranyika, who is also the chairperson of the Parliamentary Portfolio Committee for Justice Legal and Parliamentary Affairs said his  Committee also had issues with the Bill.