The Judiciary
The judiciary is one of the three main branches of government, the other two being
the Legislature (i.e. Parliament) and the Executive (the President, Ministers, the
Public Service, the Police and Defence Forces). The judiciary consists of all judicial
officers, namely, the people such as judges and magistrates who decide civil and
criminal cases in courts.
In Zimbabwe the main courts are the Supreme Court and the High Court, which are
presided over by judges, and magistrates courts which, as their name suggests, are
presided over by magistrates. There are also local courts which administer customary
law; these comprise primary courts (i.e. headmen’s courts) and community courts
(i.e. chiefs’ courts). In addition there are other specialised courts such as the
Administrative Court, which deals with applications and appeals under various Acts of
Parliament, and the Labour Court which deals with labour matters. These courts are
presided over by their own judicial officers, i.e. by people who are appointed to
preside over the courts on a full-time basis. In addition there are other specialised
courts such as the Fiscal Appeal Court, the Special Court for Income Tax Appeals,
presided over by judges, and the Maintenance Court, presided over by magistrates.
All members of the judiciary, other than chiefs and headmen, are under the
administrative control of the Judicial Service Commission, which is chaired by the
Chief Justice.
Importance of the Judiciary
An independent judiciary is essential if the rule of law is to prevail. The concept of
the rule of law was dealt with in an earlier paper, but briefly it exists where:
• no one can be punished unless a court has declared that he or she has been guilty
of a breach of the law;
• everyone is equally subject to the law, and no-one is above the law; and
• the courts and the law-enforcement agencies enforce and apply the law
impartially.
Obviously, if these conditions are to exist there must be an effective and independent
court system. The rule of law is not the same as democracy, because it is
theoretically possible for the rule of law to be respected even by an undemocratic
government, but it is hard to envisage a truly democratic society in which there is no
rule of law. So, because an effective and independent court system is essential for
the rule of law, and because respect for the rule of law is an important element of a
democratic State, one can say that a functional and independent court system is vital
for the existence of a truly democratic State.
Despite its importance, the judiciary is the weakest arm of government. It depends
on the other branches to be able to function at all. Court officials are paid out of
funds allocated by the Executive and Parliament; in criminal cases, the co-operation
of the police is vital; and the enforcement of court decisions, both civil and criminal,
depends on people who are employed by the Executive. If the Executive chooses to
disregard a court decision – as has happened frequently in this country – there is little
the courts can do about it, other than protest.
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