JUDICIAL SERVICE COMMISSION

“THE RIGHT TO A FAIR TRIAL”

A PRESENTATION BY THE HONOURABLE

MR JUSTICE L MALABA, CHIEF JUSTICE,

AT THE END OF THE FIRST TERM 2019

JUDGES’ SYMPOSIUM

TROUTBECK INN RESORT, NYANGA

DATE: 05 APRIL 2019

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INTRODUCTION

The choice of the topic “The Right to a Fair Trial” for discussion at this

Symposium was influenced by the events that occurred in Zimbabwe

at the beginning of the year. On 14 January 2019 the country woke up

to widespread public protests in different cities across the country.

Harare and Bulawayo were the worst affected. The public

demonstrations unfortunately resulted in the loss of lives, the

vandalisation of property of substantial value, looting of shops, injury

to innocent citizens and general inconvenience to many who did not

wish to participate in the demonstrations.

The events which followed the demonstrations gave rise to questions,

which form the basis of this discussion paper. Allow me, Honourable

Judges and distinguished delegates, to add some detail to those events

in order to place my paper in context.

483 cases of public violence were reported involving 1181 persons,

who appeared in various magistrates’ courts across the country. The

majority of the cases were promptly heard and decisions on various

issues, such as applications for bail, challenges of placement on

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remand, the actual guilt or innocence of the accused, and the

assessment of appropriate penalties were rendered. Of that total,

373 persons were convicted and sentenced to different forms of

punishment, while 744 were acquitted. This discharge of duty by

magistrates surprisingly drew criticism from certain sections of the

society, the media and some legal practitioners.

In summary, the concerns that related to the courts and forming the

bases for criticism levelled against judicial officers were the following

That magistrates dismissed bail applications in a pattern that

suggested extra-curial influence on their decisions;

That the courts sanctioned “fast-track” trials without affording the

accused persons adequate time to prepare their defences;

That magistrates were dismissing pre-trial applications made by

the accused persons; and

That the courts were denying legal practitioners opportunity to

take instructions from clients.

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The issues relate to both procedural and substantive decisions made by

judicial officers in the course of court proceedings. As is clear from the

summary above, the imputation of breach of accused persons’ rights to

a fair trial formed the core of the complaints. It is only logical then that

we must all take this opportunity to self-introspect and reflect on what

is meant by the right to a fair trial.

THE RIGHT TO A FAIR TRIAL

A fair trial entails a trial by a neutral and fair court, conducted in terms

of principles which accord each party the due process rights required

by applicable law. It ensures respect for the defendant’s constitutional

rights. A fair trial is the best means of separating the guilty from the

innocent and protecting against injustice. Without this right, the rule of

law and public faith in the justice system collapse.1

The Lawyers Committee for Human Rights, a United States based

body, defines the right to a fair trial as “a norm of international human

1 See ‘The Right to a Fair Trial’ available at

https://www.fairtrials.org/right-fair-trial

4
rights law designed to protect individuals from the unlawful and

arbitrary curtailment or deprivation of other basic rights and

freedoms, the most prominent of which are the right to life and liberty

of the person”.

A fair trial is the only way to prevent miscarriage of justice and is an

essential part of a just and democratic society. Every person accused of

a crime should have his or her guilt or innocence determined by a fair

and effective legal process.2 The right to a fair trial includes several

other rights and principles that regulate the procedural and substantive

processes of a trial. In this sense, the right is therefore a very broad one.

For instance, it may encompass the right to equality, the right to human

dignity, the right to a trial within a reasonable time, the right to counsel,

the presumption of innocence, etcetera.

This right depends, in a lot of ways, on the practical availability at all

times of access to competent, independent and impartial courts of law

which can, and will, administer justice fairly.3 In that regard, the right

2 Ibid
3 United Nations Office of the High Commissioner for Human Rights(UNOHCHR),
Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers, (United Nations Publications 2003)

5
to a fair trial extends beyond the accused person to also cover the

judicial officer. He or she has a duty to take the right beyond abstract

concepts to make it a substantive reality.

The right is recognised internationally as a fundamental human right

and countries are required to respect it. Different countries have

developed a variety of ways of giving effect to the right but, regardless

of how a particular legal system operates, the right remains core to all

fair justice delivery systems.4

It is, however, important to note that the concept of fairness entails

being “just and equitable”. (Concise Oxford Dictionary 510 (10th ed))

It does not require perfection. This position has been confirmed time

and again. The International Criminal Tribunal for the former

Yugoslavia (ICTY), for instance, in the well celebrated dissenting

opinion by JUDGE SHAHABUDEEN in Prosecutor v Slobodan Milošević

Case No. IT-02-54-AR 73.4, held as follows:

Chapter 6 The Right to a Fair Trial Part 1 - From Investigation to Trial,

at p 215
4 See note 1 above

6
 “… the fairness of a trial need not require perfection in every

detail. The essential question is whether the accused has had a fair

chance of dealing with the allegations against him.”

Therefore, in considering the right to a fair trial, sight should not be lost

of the fact that the right is not accorded to a legal system that is

infallible but to one that is fair. (See Maharaj v Attorney-General of

Trinidad and Tobago, Privy Council, (1979) AZ 385; (1978) 2 AER

670; (1978) 2 WLR 902).

In principle, the right to a fair trial applies with similar effect to civil

and criminal matters. However, it has an inherent inclination towards

criminal trials by according specific guarantees to the accused person,

constituting definitive elements of the right.5

LEGAL FRAMEWORK GOVERNING THE RIGHT TO A FAIR

TRIAL

INTERNATIONAL INSTRUMENTS/GLOBAL NORMS

5 Namakula C S The Court Record and the Right to a Fair Trial: Botswana and
Uganda, African Human Rights Law Journal 2016, Vol.16, N.1, pp.175-203.
ISSN 1996-2096. http://dx.doi.org/10.17159/1996-2096/2016/v16n1a8.

7
The right to a fair trial is not a novel concept. It has long been

recognised by the international community as a basic human right. In

this regard, several international instruments entrench this right as one

of the fundamental human rights.

The Universal Declaration of Human Rights (“the UDHR”) is a

milestone document in the history of human rights. Drafted by

representatives with diverse legal and cultural backgrounds from all

regions of the world, the UDHR was proclaimed by the United Nations

General Assembly in Paris on 10 December 1948 as a common

standard of achievements for all peoples and all nations.6 It set out, for

the first time, fundamental human rights to be universally protected.

Article 10 of the UDHR provides as follows:

“Everyone is entitled in full equality to a fair and public hearing

by an independent and impartial tribunal, in the determination of

his rights and obligations and of any criminal charge against

him.”

6 https://www.un.org/

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Subsequent to the adoption of the UDHR, the right to a fair trial was

defined in more detail in the International Covenant on Civil and

Political Rights (“the ICCPR”) adopted by the General Assembly of the

United Nations on 19 December 1966. The ICCPR was the first

international human rights instrument to officially prescribe the

specific details of the extent of application of this right.

The right can generally be divided into two main categories: procedural

rights during the trial process, and substantive rights in relation to the

general administration of justice by States. Articles 14 and 16 of the

ICCPR enshrine the right to a fair trial. The rights protected by this

instrument include:

1. General rights of procedural fairness, including a public

hearing before an independent and impartial tribunal which

gives reasoned judgment – Article 14(1);

2. The presumption of innocence in criminal proceedings -

Article 14(2);

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 3. Specific rights for those accused of criminal offences,

including rights to be informed of the charge, to trial within

reasonable time, to legal assistance and to cross-examine

witnesses - Article 14(3);

4. The right to be free from any retrospective application of

criminal laws – Article 15;

5. The right to appeal - Article 14(5); and

6. The right of compensation for wrongful conviction – Article

14(6).

According to the United Nations Human Rights Committee (“the

UNHRC”), General Comment No. 32 of 2007, the right to equality

before the courts and tribunals and to a fair trial is a key element of

human rights protection and serves as a procedural means to safeguard

the rule of law. Article 14 of the ICCPR aims at ensuring the proper

administration of justice, and to this end guarantees a series of specific

rights.

10
Regionally, the African Charter on Human and Peoples' Rights (“the

ACHPR”) further guarantees the right to a fair trial, albeit in an African

context. In this regard, Articles 7 and 26 are important and worthy of

note. Article 7 states the following -

Every individual shall have the right to have his cause heard. This

comprises -

The right to an appeal to competent national organs against acts

of violating his fundamental rights as recognised and guaranteed

by conventions, laws, regulations and customs in force;

The right to be presumed innocent until proved guilty by a

competent court or tribunal;

The right to defence, including the right to be defended by

counsel of his choice;

The right to be tried within a reasonable time by an impartial court

or tribunal.

No-one may be condemned for an act or omission which did not

constitute a legally punishable offence at the time it was committed. No

11
penalty may be inflicted for an offence for which no provision was

made at the time it was committed. Punishment is personal and can be

imposed only on the offender.

Article 26 of the ACHPR places an obligation upon State parties to

guarantee the independence of the courts and to allow the establishment

and improvement of appropriate national institutions entrusted with the

promotion and protection of the rights and freedoms guaranteed by the

ACHPR.

In September 1999 the Dakar Declaration on the Right to a Fair Trial

in Africa (“the Dakar Declaration”) was adopted. It sought to

consolidate the standards on the right to a fair trial under the ACHPR,

as well as taking into account the relevant jurisprudence from the

African Commission and other international human rights bodies.7 In

terms of the Dakar Declaration, the right to a fair trial is a fundamental

right, the non-observance of which undermines all other human rights.8

7 The Right to a Fair Trial: The Dakar Declaration. (2001). Journal of

African Law, 45(1), 140-142. Retrieved from
http://www.jstor.org/stable/3558976

8 Ibid

12
The adoption of multiple international conventions safeguarding the

right to a fair trial cements its status as one of the basic and fundamental

human rights that accrue to a person by virtue of his or her humanity.

The fundamental importance of the right to a fair trial is illustrated not

only by the extensive body of interpretation it has generated, but also

by the several instruments which protect it.

CONSTITUTIONAL FRAMEWORK

The application of international law in Zimbabwe is governed by

sections 326 and 327 of the Constitution. Section 326 recognises that

customary international law is part of the law of Zimbabwe to the extent

of its consistency with the laws of the country. This provision is an

affirmation of the long-standing judicial precedent by GEORGES JA in

Barker McComarc (Pvt) Ltd v Government of Kenya 1983 (4) SA 817

(ZS) where he stated that customary international law is part of the law

of Zimbabwe.9

9 Saki O and Chiware T The Law in Zimbabwe (2017) available at

http://www.nyulawglobal.org/globalex/Zimbabwe1.html

13
That Article 14 of the ICCPR, which guarantees the right to a fair trial

to an accused, reflects customary international law is beyond dispute.

There is a widespread State practice supported by opinion juris to

warrant this conclusion, as shall be shown on the comparative analysis

part below on how different States have taken it as binding upon

themselves to constitutionally guarantee the right to a fair trial in line

with international human rights instruments. In customary international

law, opinion juris is the second element necessary to establish a legally

binding custom. The concept denotes a subjective obligation, a sense

on behalf of a State that it is bound by the law in question. In North Sea

Continental Shelf (Federal Republic of Germany v Denmark; Federal

Republic of Germany v Netherlands) 1969 I.C.J. 3, at para 77 (Feb. 20)

(Continental Shelf Case) the following was said in this regard:

“Not only must the acts concerned amount to a settled practice,

but they must also be such, or be carried out in such a way, as to

be evidence of a belief that this practice is rendered obligatory by

the existence of a rule of law requiring it. The need for such a

belief, i.e. the existence of a subjective element, is implicit in the

14
 very notion of the opinio juris sive necessitatis. The States

concerned must therefore feel that they are conforming to what

amounts to a legal obligation. The frequency or even habitual

character of the acts is not in itself enough.”

In entrenching the right to a fair trial, there is an abundance of State

practice which depicts the subjective acceptance by the different States

of a legal obligation to protect and enforce the right to a fair trial.

Therefore, the right to a fair trial is part of customary international law

and the Zimbabwean law by virtue of section 326 of the Constitution.

Section 327 of the Constitution directly addresses the application of

international law in Zimbabwe. It states that any international treaty

which has been concluded or executed by the President, or under the

President’s authority, does not bind Zimbabwe unless it has been

approved by Parliament. The section further provides that the treaty

does not form part of the law unless it has been incorporated into the

law through an Act of Parliament.

15
Section 34 of the Constitution places an obligation upon the State to

ensure that all international conventions, treaties and agreements to

which Zimbabwe is a party are incorporated into domestic law.

Zimbabwe as a jurisdiction is part of a universal standard of norms that

are given recognition worldwide. One such norm is the protection of

the right to a fair trial as a fundamental human right. The importance

of the right to a fair trial was emphasised in the case of Banana v The

Attorney General 1998 (1) ZLR 309 (S) where the court found, when

balancing the right to a fair trial and the right to freedom of expression,

that, in the hierarchy of constitutional rights, the right to a fair trial must

be given priority over freedom of expression. This shows the

importance of the right to a fair trial in Zimbabwe.

Zimbabwe is a party to and has ratified the ICCPR and the ACHPR.

The right to a fair trial which is contained in these instruments is given

constitutional significance through its entrenchment in the

Constitution. The right to a fair hearing is part of Chapter 4 of the

Constitution, which contains the Bill of Rights. It is guaranteed in

section 69 of the Constitution, which provides as follows:

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 “69 Right to a fair hearing

(1) Every person accused of an offence has the right to a

fair and public trial within a reasonable time before an

independent and impartial court.

(2) In the determination of civil rights and obligations,

every person has a right to a fair, speedy and public hearing within

a reasonable time before an independent and impartial court,

tribunal or other forum established by law.

(3) Every person has the right of access to the courts, or

to some other tribunal or forum established by law for the

resolution of any dispute.

(4) Every person has a right, at their own expense, to

choose and be represented by a legal practitioner before any court,

tribunal or forum.”

This provision contains the right of an accused person to a fair and

public trial within a reasonable time. It is therefore important to note

17
that the trial ought to be fair, it must be public and it must be held within

a reasonable time. A contravention of any of these rights or principles

compromises the accused person’s right to a fair trial. More

importantly, section 69 of the Constitution places an obligation upon

the court to be independent and impartial. It is that independence which

guarantees and protects the right to a fair trial. Section 69 places an

institutional obligation or responsibility upon the justice system,

particularly the courts, to respect and protect the right to a fair trial. By

extension, those obligations are imposed upon the individual judicial

officers who preside over matters.

Section 70 of the Constitution encompasses the rights of accused

persons. It guarantees an array of rights that accrue to any person who

is accused of an offence. It is important to note that the rights of accused

persons are the constituent rights that make up the right to a fair trial

enshrined in section 69. Some are procedural and others relate to the

substance of the right to a fair trial.

Central to the right to a fair trial is the presumption of innocence, which

is provided for under section 70(1)(a) of the Constitution. The

18
presumption of innocence, which is fundamental to the protection of

the right to a fair trial, imposes on the prosecution the burden of proving

the charge. It guarantees that no guilt can be presumed until the charge

has been proved beyond reasonable doubt. This ensures that the

accused has the benefit of the doubt, and requires that persons accused

of a criminal act must be treated in accordance with this principle.10

The rationale for the presumption of innocence is wide and varied. The

learned authors Currie I and de Waal J The Bill of Rights Handbook (6th

edn, Juta & Co. (Pty) Ltd, 2013) at p 753 are of the view that the

rationale for the presumption of innocence ranges from a concern that

individual rights need to be protected from the potentially coercive

authority of the State, at one end, to policy concerns directed at

maintaining the legitimacy of the criminal justice system and the

normative force of the criminal law, at the other.

Further, section 70 of the Constitution provides for the right of all

persons charged with a criminal offence to be informed promptly and

in detail in a language which they understand of the nature and cause

10 See n 3 above at p 219

19
of criminal charges brought against them. This right is one of the

minimum guarantees of the right to a fair trial. It is important to convey

the grounds of accusation in order to put the accused person on terms

regarding the charges that he or she is facing.

It should be noted that fairness demands that an accused person should

only be convicted of conduct that is criminal at the time it was

committed. Therefore, an accused person cannot be convicted of an act

or omission that was not an offence when it took place. This is the

presumption against retrospectivity in criminal matters. In The State

and Another v Acting Regional Magistrate, Boksburg: Mr Phillip

Venter and Another [2011] ZACC 22, it was held as follows at p 11:

“However, in our common law there is a presumption against

retrospectivity. It is presumed that a statute does not operate

retrospectively, unless a contrary intention is indicated, either

expressly or by clear implication. This presumption is consistent

with the fair trial provisions of the Constitution.” (My emphasis)

20
Further, section 70 of the Constitution provides for the right to legal

representation or the right to counsel. The availability or absence of

legal assistance often determines whether or not a person can access

the relevant proceedings or participate in them in a meaningful way. 11

This right, however, is at the accused person’s own expense. The rôle

of the right to counsel, as ensuring respect for equality, the right to

silence, the right against self-incrimination and the presumption of

innocence, must guide the courts in the kind of protection to be offered

to the unrepresented accused. This is the rationale behind

section 70(1)(e) of the Constitution, which is to the effect that an

accused person is entitled to State-funded legal representation if

substantial injustice would otherwise result.

The right to legal representation at the expense of the State where

substantial injustice would otherwise occur, enshrined in

section 70(1)(e) of the Constitution, is an essential part of the right to a

fair trial. This section provides a substantive right to an indigent

11United Nations Office on Drugs and Crime (UNODC) Global Study on Legal
Aid, Global Report (2016) at p 15. See also Human Rights Committee, General
Comment 32: Article 14: Right to equality before courts and tribunals and
to a fair trial, 23 August 2007 (CCPR/C/GC/32).

21
accused to be afforded legal representation at State expense where lack

of such representation would occasion considerable injustice to him or

her. LORD DENNING affirmed the essence of this right in Pett v

Greyhound Racing Association (1968) 2 All ER 545. He stated as

follows:

“... It is not every man who has the ability to defend himself on

his own. He cannot bring out the points in his own favour or the

weakness in the other side. He may be tongue-tied, nervous,

confused or wanting in intelligence. He cannot examine or cross-

examine witnesses. We see it every day ...”.

What would constitute substantial injustice leaves much to the

discretion of the court seized with the matter. It should be noted,

however, that no-one should be denied justice because he or she is poor

and cannot afford a lawyer. This was illustrated by the decision of the

Supreme Court of the United States in Griffin v Illinois (1956) 351 US

12, where JUSTICE BLACK stated that if justice in a country is dependent

on one’s financial muscle, then that creates anarchy where justice can

22
even be bought. Therefore, an indigent accused should enjoy the

benefits and protection afforded by the law.

Additionally, section 70 of the Constitution also guarantees the accused

person’s right not to be tried for an offence in respect of an act or

omission for which they have previously been pardoned or either

acquitted or convicted on the merits. In other words, this is the

prohibition on double jeopardy. This principle is derived from the

maxim “nemo debet vis vexari”, which means a man should not be put

twice in peril for the same offence. The principle of double jeopardy is

also based on the doctrine of autrefois convict and autrefois acquit.

This doctrine implies that if a person is prosecuted and convicted or

acquitted he or she cannot be prosecuted again for the same offence.

See Burt v The State SC 204/98.

It is important to note that the right to a fair trial is buttressed by other

legal remedies that are available to an accused person. These remedies

relate to the right to appeal or apply for review. This is provided for

under section 70(5) of the Constitution. The section provides that any

person who has been tried and convicted of an offence has the right,

23
subject to reasonable restrictions that may be prescribed by law, to (a)

have the case reviewed by a higher court, or (b) appeal to a higher court

against the conviction and sentence. The right of appeal applies to all

types of crimes regardless of the seriousness.

Section 70 of the Constitution also includes several procedural rights

that accrue to an accused person and make up the broad right to a fair

trial. These rights include:

The right to be given adequate time and facilities to prepare a

defence;

The right to remain silent or not to be compelled to give self-

incriminating evidence;

The right to be present when being tried;

The right to adduce and challenge evidence; and

The right to have trial proceedings interpreted into a language that

they understand.

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As already shown above, the importance of these rights cannot be

overemphasised. This is because the sum totality of these rights and

principles gives rise to the right to a fair trial. This right is a basic

fundamental human right, the protection of which is key in a

democratic society.

However, most importantly, the right to a fair trial is an absolute right

in Zimbabwe. Section 86(3) of the Constitution provides for the non-

derogable fundamental rights and the right to a fair trial is one of the

rights that cannot be limited by any means. The fact that the

Constitution provides that no law can limit the right to a fair trial and

that no one may violate it means that the State may not limit the right,

either through legislation or other means. Consequently, even judicial

officers who are tasked with ensuring the protection, fulfilment and

realisation of the right to a fair trial cannot limit the right through their

conduct.

Section 44 of the Constitution places a duty upon the State to respect

fundamental human rights and freedoms. It provides thus:

25
 “The State and every person, including juristic persons, and every

institution and agency of the government at every level must

respect, protect, promote and fulfil the rights and freedoms set out

in this Chapter.”

Thus, it can be seen that the constitutional framework in Zimbabwe

guarantees the right to a fair trial. The right is enshrined as one of the

non-derogable fundamental rights. Further to that, the Constitution

itself places a positive obligation on the State and its judicial officers

to ensure the respect, protection, promotion and fulfilment of the right.

Consequently, the Constitution provides adequate protection of the

right to a fair trial.

RELATIONSHIP BETWEEN THE ACCUSED PERSON AND

THE JUDICIAL OFFICER IN RELATION TO THE RIGHT TO
A FAIR TRIAL

The right to a fair trial is two-dimensional, in the sense that it accrues

to an accused person and, at the same time, the right is realised through

the independence and impartiality of the judicial officer who is seized

with the matter. The judicial officer has the constitutional mandate to

26
respect, protect and promote the right to a fair trial in terms of the

Constitution. Denial of a fair trial is as much an injustice to the accused

as it is to the victim and to society.12 A fair trial means a trial in which

bias or prejudice for or against the accused, the witness or the cause

which is being tried is eliminated.

THE ACCUSED PERSON

The right to a fair trial, as already shown, accrues to a person by virtue

of him or her being a human being who is accused of an offence. The

accordance of fundamental rights to an individual because he or she is

human is closely linked with the fundamental right to dignity. This right

entails the respect for the inherent worth or humanity of persons. In

essence, human dignity is a central value of the objective, normative

value system established by the Constitution.13 One of the founding

values and principles that underlie the Constitution, as espoused in its

section 3, is the recognition of the inherent dignity and worth of each

human being.

12 Soni, P Fair Trial and its Principles (2018) available at

https://lawtimesjournal.in/fair-trial-and-its-principles/
13 Carmichele v Minister of Security 2001 (4) SA 938 (CC).

27
Therefore, an accused person ought to be afforded the right to a fair

trial and the violation of this absolute right, or any of its constituent

rights, not only impinges upon the right itself but also upon the right to

human dignity. O’REGAN J in S v Makwanyane 1995 (3) SA 391 (CC)

had the following to say regarding the importance of the right to human

dignity in a democratic society:

“The importance of dignity as a founding value of the new

Constitution cannot be overemphasised. Recognising a right to

dignity is an acknowledgement of the intrinsic worth of human

beings: human beings are entitled to be treated as worthy of

respect and concern. This right therefore is the foundation of

many of the other rights that are specifically entrenched in

Chapter 3.”

The point was reiterated by CHASKALSON P as follows:

“The rights to life and dignity are the most important of all human

rights, and the source of all other personal rights in Chapter Three.

By committing ourselves to a society founded on the recognition

28
 of human rights we are required to value these two rights above

all others.”

The right to a fair trial is an objective one, which is measured against

the objective standards that are set by the Constitution, international

law and other sources of law. These standards against which a trial is

to be assessed in terms of fairness are numerous, complex, and

constantly evolving.

This means that the right accrues to every person regardless of

extraneous considerations like race, creed or colour etcetera. As such,

when an accused person appears before a court of law he or she expects

justice to be done to his or her cause according to the said objective

standard. This brings about the principle of fairness or equality, more

specifically the concept of substantive equality. This concept entails

that all persons accused of an offence be treated according to the same

standard which cannot be compromised. Currie I and de Waal J The

Bill of Rights Handbook supra at p 213 postulate that fairness simply

requires that all persons are equal bearers of rights. Consequently,

inequality is an aberration that can be eliminated by extending the same

29
rights and entitlements to all in accordance with the same neutral norm

or standard of measurement.

The right to a fair trial therefore demands that judicial officers act

according to the same objective standards that apply worldwide. The

failure to apply the objective standards undermines the principle of

equality before the law and thus the right to a fair trial is violated.

THE JUDICIAL OFFICER

Section 69 of the Constitution places an obligation upon the court to be

independent and impartial. The independence and impartiality of the

judicial officer is vital to the attainment and fulfilment of the right to a

fair trial. It is through this independence and impartiality that the right

to a fair trial is given life or realised. Thus, it is important to note that

the right to a fair trial is meaningless without the guarantee of an

independent and impartial judicial officer. Further, section 44 of the

Constitution places a positive obligation upon the State (and by

extension the judicial officer) to respect, protect, promote and fulfil

fundamental rights.

30
Judicial independence and impartiality are implicit in the rule of law,

which is foundational to the Constitution. Judicial officers must

accordingly decide all matters on a fair, objective and impartial basis.

They must keep open minds and refrain from anything that might

undermine their independence.14

R v Valente [1985] 2 SCR 673 is a leading decision by the Supreme

Court of Canada on protection of judicial independence under

section 11(d) of the Canadian Charter of Rights and Freedoms. The

requirements of independence and impartiality were defined as

follows:

“Although there is obviously a close relationship between

independence and impartiality, they are nevertheless separate and

distinct values or requirements. Impartiality refers to a state of

mind or attitude of the tribunal in relation to the issues and the

parties in a particular case. The word ‘impartial’, as

Howland C.J.O. noted, connotes absence of bias, actual or

14Reid Rowland J Criminal Procedure in Zimbabwe (Legal Resources

Foundation, Harare, 1997)

31
 perceived. The word ‘independent’ in s. 11(d) reflects or

embodies the traditional constitutional value of judicial

independence. As such, it connotes not merely a state of mind or

attitude in the actual exercise of judicial functions, but a status or

relationship to others, particularly the Executive Branch of

government, that rests on objective conditions or guarantees.”

The function of a judicial officer in a criminal trial is not merely that of

an umpire, to see that the rules of the game are observed by both parties.

He or she must direct and control the trial according to recognised rules

and procedures and strive to ascertain the truth in all cases which come

before him or her. He or she should, however, not descend into the

arena of a trial.15 It is of fundamental importance that justice is not only

done but is plainly and undoubtedly seen to be done (R v Sussex

Justices, ex parte McCarthy [1924] 1 KB 256; [1923] All ER Rep 233).

The Constitution not only recognises that courts are independent and

impartial, but also provides important institutional protection for

courts. Section 164 of the Constitution provides as follows:

15 Ibid

32
“164 Independence of judiciary

(1) The courts are independent and are subject only to this

Constitution and the law, which they must apply impartially,

expeditiously and without fear, favour or prejudice.

(2) The independence, impartiality and effectiveness of

the courts are central to the rule of law and democratic

governance, and therefore -

(a) neither the State nor any institution or agency of the

government at any level, and no other person, may

interfere with the functioning of the courts;

(b) the State, through legislative and other measures, must

assist and protect the courts to ensure their

independence, impartiality, dignity, accessibility and

effectiveness and to ensure that they comply with the

principles set out in section 165.”

33
Section 165 of the Constitution is also vital in ensuring the

independence and impartiality of the Judiciary. It states:

“165 Principles guiding judiciary

(1) In exercising judicial authority, members of the

judiciary must be guided by the following principles -

(a) justice must be done to all, irrespective of status;

(b) justice must not be delayed, and to that end members

of the judiciary must perform their judicial duties

efficiently and with reasonable promptness;

(c) the role of the courts is paramount in safeguarding

human rights and freedoms and the rule of law.

(2) Members of the judiciary, individually and

collectively, must respect and honour their judicial office as a

public trust and must strive to enhance their independence in

order to maintain public confidence in the judicial system.

34
 (3) When making a judicial decision, a member of the

judiciary must make it freely and without interference or undue

influence.

(4) Members of the judiciary must not -

(a) engage in any political activities;

(b) hold office in or be members of any political

organisation;

(c) solicit funds for or contribute towards any political

organisation; or

(d) attend political meetings.

(5) Members of the judiciary must not solicit or accept

any gift, bequest, loan or favour that may influence their judicial

conduct or give the appearance of judicial impropriety.

(6) Members of the judiciary must give their judicial

duties precedence over all other activities, and must not engage

35
 in any activities which interfere with or compromise their judicial

duties.

(7) Members of the judiciary must take reasonable steps

to maintain and enhance their professional knowledge, skills and

personal qualities, and in particular must keep themselves abreast

of developments in domestic and international law.”

In the Canadian case of The Queen in Right of Canada v Beauregard

(1986) 30 DLR (4th) 481 (SCC), quoted with approval in De Lange v

Smuts N.O and Others 1998 (3) SA 785 (CC), DICKSON CJC stated the

following regarding what constitutes an independent and impartial

court:

“Historically, the generally accepted core of the principle of

judicial independence has been the complete liberty of individual

judges to hear and decide the cases that come before them; no

outsider, be it government, pressure group, individual or even

another judge, should interfere in fact, or attempt to interfere, with

the way in which a judge conducts his or her case and makes his

36
 or her decision. This core continues to be central to the principle

of judicial independence.”

The Judicial Service (Code of Ethics) Regulations (Statutory

Instrument 107 of 2012) requires in section 5 that judicial officers be

independent and perform their duties without fear or favour. Further, it

is also a requirement that a judicial officer shall at all times exhibit and

promote high standards of judicial conduct in order to foster public

confidence, which is universally accepted as a fundamental ingredient

to the maintenance of judicial independence. This bolsters the notion

that justice must not only be done but must be seen to be done.

It is therefore critical to note that the judicial officer who is in charge

of proceedings is also governed by the objective standards that apply

to the right to a fair trial. This is in the sense that it applies to the judicial

officer just as much as it applies to the accused person. The judicial

officer’s independent and impartial rôle ensures the attainment of the

right to a fair trial. Where the independence or impartiality of a judicial

officer is potentially compromised, he or she ought to recuse himself

37
or herself. (See S v Paradza 2004 (3) ZLR 324 (H); Paradza v Minister

of Justice and Others 2012 (1) ZLR 1 (S)).

ALLEGATIONS OF MISCONDUCT BY JUDICIAL OFFICERS

AND THE IMPACT ON THE RIGHT TO A FAIR TRIAL

In a statement which I issued in my capacity as CHIEF JUSTICE regarding

the complaints on the handling of public violence cases by the

Judiciary, especially the Magistrates’ Court, I noted several issues.

As alluded to in my introduction, some decisions from the Magistrates’

Courts drew notable criticism from certain sections of civic society,

including, but not limited to, legal practitioners, the media and other

social commentators. The criticism specifically related to judicial

officers and the discharge of their duties. I have also already referred

to the specific allegations.

I further indicated in that statement that it was not in doubt that the

conduct impugned by these allegations constituted an affront to the

absolute right to a fair trial. Judicial officers are constitutionally

mandated to preside over a fair trial and they do so by maintaining their

independence and impartiality. Over and above this, in terms of

38
section 86(3) of the Constitution, the right to a fair trial cannot be

limited by any law or conduct.

The right to a fair trial underpins the rule of law, in that it serves as a

procedural means to safeguard the rule of law. Without a fair trial, the

rule of law collapses. The rule of law mandates that every person is

subject to the same laws and no-one, however rich or powerful, is above

the law. See Chimakure and Ors v Attorney General 2013 (2) ZLR 466

(S). This basic principle is crucial to the right to a fair trial. The

principle also creates a level playing field and ensures equality before

the law.16 The rule of law also demands that there be non-interference

with the judicial process.

However, as I also noted, the allegations against the judicial officers

were baseless and unsubstantiated. The public violence cases were

handled by senior magistrates who are experienced in the law. These

senior magistrates are judicial officers who are constitutionally

mandated to uphold the rule of law and accord the accused person the

16Maiese M Principles of Justice and Fairness Beyond Intractability. Eds.

Guy Burgess and Heidi Burgess. Conflict Information Consortium (University
of Colorado, Boulder. Posted: July 2003)
http://www.beyondintractability.org/essay/principles-of-justice.

39
procedural and substantive safeguards which underpin the right to a fair

trial.

More importantly, the principle of non-interference also underpins the

rule of law. In response to the earlier mentioned concerns, I maintained

that the Judicial Service Commission (JSC) and the office of the Chief

Magistrate are not empowered by the Constitution to interfere with the

judicial decision-making process of judicial officers in courts,

regardless of how distinctive the circumstances may be. I further

indicated that once a decision has been made, only a court of competent

jurisdiction can set it aside. Conversely, the petitioned intervention in

decisions made by judicial officers in the course and scope of their

work would amount to interference with the exercise of discretion and

the independence of those judicial officers. Clearly, that was untenable.

This speaks to non-interference with the judicial process which is a

critical requirement of the right to a fair trial.

Having found that the allegations of the violation of the right to a fair

trial were unfounded, I directed that any grievances that an accused

person might have had against a decision of the court ought to have

40
been addressed in terms of the law. Once a decision has been made,

only a court of competent jurisdiction can interfere with it and this is

done in terms of appeal or review procedures as laid down by law.

Thus, an unfounded attack on the conduct of judicial officers attacks

not only the judicial officers themselves or the right to a fair trial, but

it also impugns the integrity of the justice delivery system itself.

The allegations of misconduct by judicial officers and the alleged

consequent violation of an accused person’s right to a fair trial have

already been found to be baseless. Coupled with the constitutional

mandate to respect, protect, promote and fulfil fundamental human

rights, the judicial officer’s independence and impartiality achieves this

objective.

In any event, the numbers speak for themselves. The statistics below

indicate what transpired.

(A) Persons with finalised cases as at 22 March 2019

Total persons who appeared in courts 1181

Total persons convicted 373

41
 Total persons acquitted 744

Total persons with matters finalised 1117

Total persons with pending matters 64

(B) Types of sentences imposed as at 22 March 2019

Total persons convicted 373

Persons with passing of sentences postponed 8

Persons sentenced to caning 3

Persons with non-custodial sentences 83

Persons sentenced to imprisonment 279

(C) Outstanding cases per province as at 22 March 2019

Harare 11 (8 are non-jurisdiction

Bulawayo 22

Midlands 4 (2 are non-jurisdiction)

Total pending 37

An analysis of these statistics reveals one thing: The judicial officers

seized with these mattes applied their minds to the determination of the

42
cases. In doing so, they exercised judicial freedom or judicial

discretion, which is an imperious principle in the administration of

justice. Their conduct cannot be described as anything other than

commendable and laudable. It cannot therefore be said that the judicial

officers were subject to extraneous influences in the determination of

these matters. For instance, the fact that there are more accused persons

who were acquitted than those who were convicted effectively

disproves the allegation that the judicial officers fell short of the

requisite constitutional standard in the performance of their duties by

allowing external influences to affect their decisions to the detriment

of the accused persons.

The offence of public violence by its nature is committed by at least

two people. However, the acts of public violence that occurred in

January of this year involved masses of people who not only

contributed to the loss of life, destruction of property but general

anarchy. The inevitable result was that dozens of persons were charged

with the offence in terms of section 36 of the Criminal Law

(Codification and Reform) Act [Chapter 9:23]. The subsequent

43
arraignment of these accused persons before the Magistrates’ Court

ensued.

It cannot be gainsaid that these multiple cases of public violence

resulted in a heavy burden on the court system, the result of which was

that the senior magistrates who were seized with these matters

conducted expedited trials. Section 164(1) of the Constitution mandates

the courts to dispense justice expeditiously. It cannot, however, be

overemphasised that these expedited trials ought to be conducted with

respect for due process, in particular the right to a fair trial. In the

result, there is nothing peculiar about the conduct of expedited trials. In

fact, this ought to be the norm and not the exception.

In S v Chawira 2011 (2) ZLR 210 (H) the court decided that the practice

of “fast tracking” criminal trials is not specifically provided for by that

name in the Criminal Procedure and Evidence Act [Chapter 9:07] (“the

CPEA”), but that does not mean it is an unlawful procedure. It is, in

fact, a useful procedure which, if well managed, helps to contain and

or reduce the courts’ backlogs of criminal cases and ensures the

delivery of timeous justice. All that has to be done is to ensure that it is

44
used in compliance with the provisions of the Act and other laws which

provide for a fair trial.

As indicated in the statement referred to earlier, the conduct of

expedited trials is not peculiar to Zimbabwe. In the United Kingdom

pursuant to the 2011 London riots, thousands of rioters were arrested

and arraigned before the courts. Their trials were fast tracked or

expedited, with the result that at one point duty solicitors and court

officials were clocking more than sixteen working hours per day.17

Subsequently, as more accused persons were brought before the courts,

the courts were in session twenty-four hours a day until the cases were

completed. The prosecutions included even juvenile offenders.18

A similar situation also obtains in India. Supreme Court Judge

JUSTICE KRISHNAIYER, while dealing with a bail petition in Babu Singh

and Ors v State of UP 1978 AIR 527; 1978 SCR (2) 777, remarked:

17England riots: justice grinds on as courts sit through the night

available at https://www.theguardian.com/uk/2011/aug/14/riots-courts-
justice-metropolitan-police

18England riots: 24-hour criminal justice system after riots available at

https://www.bbc.com/news/uk-england-14487636

45
 “Our justice system, even in grave cases, suffers from slow

motion syndrome which is lethal to ‘fair trial’ whatever the

ultimate decision. Speedy justice is a component of social justice

since the community, as a whole, is concerned in the criminal

being condignly and finally punished within a reasonable time

and the innocent being absolved from the inordinate ordeal of

criminal proceedings.”

In India Fast Track Courts (“FTCs”) were established in the year 2000.

This was an initiative of the Department of Justice designed to cut short

delays in courts. The 6th Finance Commission of India recommended a

scheme for creation of 1734 additional courts in the country for

disposal of long pending sessions and other cases.19

The inescapable conclusion which can be drawn from a comparison of

the Zimbabwean system with the two abovementioned jurisdictions is

that the conduct of expedited trials is not peculiar to Zimbabwe and,

more importantly, it is not illegal. The independence and impartiality

of the senior magistrates who were seized with the public violence

19 https://www.quora.com/What-is-fast-track-court-in-India

46
cases has already been underscored. In the result, the fundamental right

to a fair trial is guaranteed and protected in Zimbabwe. The

constitutional and legal frameworks provide adequate protection of this

fundamental right.

COMPARATIVE ANALYSIS OF THE RIGHT TO A FAIR

TRIAL

UNITED STATES OF AMERICA

The right to a fair trial in the United States of America is

constitutionally guaranteed under Amendment VI of the Constitution,

which provides as follows:

“In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the state and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

47
 process for obtaining witnesses in his favour, and to have the

assistance of counsel for his defense.”

In the United States of America, the right to a fair trial is secured by the

Fourteenth Amendment as a fundamental liberty. A fair trial is a legal

trial conducted according to the rules of common law. In a fair trial, the

accused’s legal rights are safeguarded and respected. A fair trial hears

before it condemns.20 The trial proceeds on inquiry and renders

judgment only after trial. In a fair trial, jurors are to be entirely

indifferent as to the parties at the outset.21 The necessary elements of a

fair trial are an adequate hearing and an impartial tribunal, free from

any interest, bias, or prejudice. A fair trial presupposes full justice

within human limitations. [Box v State, 74 Ark. App. 82, 88-89 (Ark.

Ct. App. 2001)]

INDIA

The Indian Constitution, through its Article 21, renders the fair trial a

part of life and personal liberty.22 The Supreme Court in the case of

20 http://www.uslegal.com/fair trial
21 Ibid
22 Article 21 reads: “No person shall be deprived of his life or personal

liberty except according to a procedure established by law.”

48
Rattiram v State of Madhya Pradesh (2012) 4 SCC 516 observed that

a fair trial is the heart of criminal jurisprudence. A fair trial is a

fundamental right which flows from Article 21 of the Constitution. The

denial of a fair trial is the denial of human rights. Also, the Court in

Mohd Hussain Julfikar Ali v The State (Govt. Of Nct) 2012 (8) SCALE

308 stated that every person has a right to a fair trial by a competent

court in the spirit of the right to life and personal liberty. Thus, a right

to a fair trial being a fundamental right cannot be refused to any person.

In Sidhartha Vashisht v State (NCT of Delhi) (2010) 6 SCC 1, which

was quoted with approval in Rattiram and Ors v State Of M.P.Tr.Insp.

Of Police AIR 2012 SC 1485 it was held that:

“It would not be an exaggeration if it is stated that a ‘fair trial’ is

the heart of criminal jurisprudence and, in a way, an important

facet of a democratic polity that is governed by Rule of Law.

Denial of ‘fair trial’ is crucifixion of human rights. It is ingrained

in the concept of due process of law. While emphasising the

principle of ‘fair trial’ and the practice of the same in the course

49
 of trial, it is obligatory on the part of the Courts to see whether in

an individual case or category of cases, because of non-

compliance of a certain provision, reversion of judgment of

conviction is inevitable or it is dependent on arriving at an

indubitable conclusion that substantial injustice has in fact

occurred. The seminal issue is whether protection given to the

accused under the law has been jeopardised as a consequence of

which there has been failure of justice or causation of any

prejudice”.

CANADA

The first part of the Canadian Constitution is the Canadian Charter to

Rights and Freedoms (“the Charter”). It is the Bill of Rights which

offers certain rights to citizens of Canada. Section 11 of the Charter

provides for rights in criminal matters in order to secure a fair and

impartial criminal justice system. The right to a fair trial is recognised

under section 11(d) of the Charter and it states that:

50
 “Any person charged with an offence has the right to be presumed

innocent until proven guilty according to the law in a fair and

public hearing by an independent and impartial tribunal.”

The Supreme Court of Canada in R v Rose (1998) 3 SCR 262 held that

the right to a fair trial is guaranteed by section 11(d) of the Charter. The

obligation of a trial judge to ensure that an accused person’s right to a

fair trial is preserved has been enshrined in section 11(d) of the Charter.

Further, in the case of Selvey v Director of Public Prosecutions [1968]

2 All ER 497 LORD GUEST referred to the overriding duty of the trial

judge to ensure that a trial is fair. He wrote that this duty “springs from

the inherent power of the judge to control the trial before him and to

see that justice is done in fairness to the accused”.

CONCLUSION

Judicial officers ought to be alive to the fact that the right to a fair trial

enjoys a superior position in our constitutional dispensation. The right

envisages a trial that is fair to the accused because it provides a number

of minimum procedural protections. This right outlines a level of

51
protection below which a court cannot go without compromising

fairness and effectiveness. In this regard, the right to a fair trial

comprises several rights, the violation of which constitutes an affront

not only to the concept of justice in relation to the accused but to the

society at large.

Further, the right to a fair trial is two-dimensional, in the sense that it

accrues to the accused person by virtue of him or her being human. This

is closely related to the right to human dignity, which recognises the

intrinsic worth of a human being. It is the judicial officer who ensures

the realisation and fulfilment of this right. The realisation or fulfilment

is guaranteed through the independence and impartiality of the judicial

officer, the absence of which would certainly violate the right to a fair

trial.

The entrenchment of the right to a fair trial by the Constitution signifies

its importance in a democratic society. Its importance is further

magnified by the fact that the right to a fair trial is one of the

fundamental rights which are non-derogable in terms of section 86(3)

of the Constitution. The fundamental right is not only recognised in

52
Zimbabwe. It is a universal right. Several international human rights

instruments recognise the right as a basic human right. At regional level

the right is given effect by the ACHPR. Zimbabwe, as a State Party to

the international conventions and treaties recognising and requiring

protection of the right to a fair trial, has an obligation, which is

embodied in the Constitution, to respect the fundamental human right.

The domestication of the right to a fair trial is evidenced by its

entrenchment in the Constitution and amplification in various statutes.

53