(Last Updated on November 16, 2020 by GERALD NCUBE)
The concept of judicial capture can be understood as the antithesis of judicial independence. In a broad sense, it describes a situation where the institution of the judiciary has lost its independence. In a narrower sense, it refers to a situation where individual judges have fallen under the control of private interests.
The notion of judicial independence is an important pillar that complements the principle of separation of powers. The principle of separation of powers describes the division of state power between the three main arms of the state, namely, the executive, legislature, and judiciary. In this scheme, the judiciary has the fundamental role of a watchdog. It has the role of a political referee, resolving disputes between citizens and between the state and citizens. This role requires the judiciary to be independent.
For the judiciary to be independent, it must avoid being captured by partisan interests. The principle of independence of the judiciary is affirmed in section 164 of the Constitution of Zimbabwe, which emphasises the rule of non-interference by any other person in the affairs of the judiciary. Section 165 stipulates principles to guide the judiciary and exhorts members of the judiciary to respect and honour their office and to strive to enhance their independence to ensure public confidence in the judicial system.
The Constitution anticipates the risk of judicial capture, which is why section 165(4) prohibits members of the judiciary from engaging in political activities; holding office in or be members of any political organisation; soliciting funds for or contributing towards any political organisation; or attending political meetings.
SERVING THE PUBLIC INTEREST
The institution of the judiciary is designed to serve the public interest. The public interest in this context is to deliver justice. This is reaffirmed in section 165 of the Constitution which states that the judiciary is guided by the principle that “justice must be done to all, irrespective of status”. It adds that “justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness”.
In the language of economists, justice may be classified as a “public good”. The technical language for public goods is that they are “non-rivalrous” and “non-excludable”. This means that it does not diminish in value just because others are also enjoying it. Besides, other people cannot be excluded from enjoying it. A fair, efficient, and impartial system of justice can be enjoyed by everyone, friends, and foes alike. Likewise, the independence of the judiciary can be classified as a public good – everyone can benefit from it without depriving others of its advantages.
In a recent article, I used the example of a tower light in a neighbourhood. It provides light for everyone. Every household can enjoy the benefit of the light it provides without depriving others of the benefits. In the same way, law, justice, and order are good for the community because everyone can enjoy their benefits. It is therefore in the public interest that there be independent institutions that deliver law, justice, and order. While it is possible to seek justice through private institutions like arbitration or mediation, the formal institutions of justice are still necessary for the enforcement of decisions made in those private spaces.
WHAT THEN IS JUDICIAL CAPTURE?
Four years ago, in an article entitled, A Brief History of Judicial Capture in Zimbabwe, I defined judicial capture in the following terms: “I use the term “judicial capture” to explain a situation in which a segment of society has gained a disproportionate influence over the judiciary so that instead of serving the public interest, the judiciary ends up serving the interests of that particular segment”. To understand the phenomenon of capture, and how the judiciary might be captured, I used Capture Theory to frame the debate.
Capture theory holds that a body that exercises public power in the public interest may in some circumstances become captured by private interests. Instead of serving its mandate in the public interest, it begins to serve the private interests of powerful groups or individuals. In its general formulation, the theory is used to explain the relationship between regulatory bodies and the entities they regulate. Therefore, where a financial regulator is supposed to regulate financial services, banks and other financial services companies might end up controlling the regulator.
In that case, it would be said that the financial regulator has become captured. The public interest would have been subverted private interests in the financial sector. Using the same tools, in the case of the judiciary, capture occurs when a judiciary which is supposed to deliver justice ends up serving the partisan interests of groups or individuals. This leads to injustice.
WHAT CAUSES CAPTURE?
Capture is driven by several factors. The major factor in capture theory is the existence of disproportionate power between the regulator and the regulated entities, where the regulated have more power over the regulator. In the case of the judiciary, there will be disproportionate power held by specific actors (private interests) over the judges. This disproportionate power can manifest in several ways and I illustrate it here through the private interests of political actors who use it to capture the judiciary.
CAPTURE BY APPOINTMENT
The first is the power of appointing judges. If one person has unchecked power to determine who becomes a judge, those judges may become captured to serve his or her interests especially if they have a weak moral compass. Therefore, it is important for the process of appointing judges to be democratised so that power is not concentrated in the hands of one person. The 2013 Constitution tried to reduce opportunities for judicial capture by democratising the process of appointment. Whereas in the past the President had wider discretion to appoint judges in an opaque process, the current procedures allow for public participation in an open, transparent, and accountable process.
Unfortunately, the regime wants to change this transparent system through Constitutional Amendment No. 2, to return to the old system. This is a retrogressive step because it would give a disproportionate amount of power to the President, enhancing opportunities for judicial capture. Therefore, the amendment must be strongly resisted. Constitutional Amendment No. 1 already changed the process of appointing the leadership of the judiciary, exposing them to capture. Allowing judges to stay on after reaching the age of 70, in a process that is effectively controlled by the President will only enhance opportunities for judicial capture by the executive.
CAPTURE BY COMPENSATION
The second mechanism of capture is the system of compensating judges. Those who control how judges are paid and their conditions of service have enormous power over them. They can abuse their role, thereby gaining disproportionate power over the judiciary and opening opportunities for judicial capture. While the Constitution stipulates that the salary of a judge cannot be reduced while he or she is in office, it is possible for there to be disguised reduction. This can happen where the paying authority does nothing to ensure that judicial wages keep up with the rate of inflation. If the judges’ wages remain stagnant while inflation is rising, this will result in a severe reduction in real terms.
This is the current situation for judges who have been complaining over their poor conditions of service. Their situation is not different from that of other state employees like teachers, doctors, and other civil servants. However, given the role of judges, they do not have the same freedoms to take industrial action. Nothing in the Constitution stops them from striking, but there exists an unwritten code that prevents them from taking such drastic action. A strike by judges would not only throw their standing into jeopardy but it would result in a serious constitutional crisis because who would mediate the dispute between them and the government? In the absence of industrial action, they must either suffer in silence or beg for intervention by the executive. It is this condition of judicial poverty that exposes them to capture.
REMOVAL OF JUDGES
The third factor is the mechanism of removing judges from office. The constitution is designed to protect the office of the judge so that he or she is only removed under specific rules. There must be an investigation by a tribunal that recommends what to do to the President. Apart from these rules, there has long been an unwritten understanding that the tribunal procedure is only be used in exceptional circumstances. This is part of the norm of forbearance, which means even where there is power, it may not be used in favour of an alternative way of dealing with a problem. Forbearance has meant that the executive has been more restrained when dealing with the judiciary. There must be gross indiscipline or incompetence before the constitutional power is invoked.
However, it is also possible for the power of removal to be weaponised against judges. This occurs where the removal authorities become trigger-happy, casting aside the norms and conventions that usually regulate the relationship between the executive and the judiciary and start using the removal power to go after judges. This forms the heart of the charge by Justice Ndewere against the removal authorities. In her affidavit, she asserts that she is being punished for disobeying unlawful instructions by her bosses, Chief Justice Malaba and Judge President Chiweshe. She alleges that they attempted to control her decision-making process in two cases, involving high profile figures, former Minister Prisca Mupfumira and MDC Vice-Chairperson Job Sikhala. The matter is currently before the courts. If true this is a gross violation of the Constitution, which provides in section 165(3) that “When making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence”
SUSPENSION WITHOUT BENEFITS
The Ndewere case also showcases the disproportionate use of power by the executive, intended to intimidate and capture the judiciary. When she was suspended because of the referral of the matter to a tribunal, Justice Ndewere also lost her wages and benefits. The government withdrew her security at her home and threatened to take away her vehicles. As I have already argued in another paper, the suspension of pay and benefits is illegal both under the common law and the constitution. The law is clear that it is illegal to suspend an employee without benefits unless there is superseding legislation or agreement to the contrary. The Constitution, which guides the contractual relationship between the state and the judge does not allow for suspension without pay or benefits.
So, why did President Mnangagwa illegally suspend her pay and benefits? The only plausible reason is it was meant to punish Justice Ndewere before she has even been investigated. It also deprives her of the financial resources that she needs to fight her case. In short, the suspension of pay and benefits constitutes disguised sanctions against the judge. It represents a threat not just to Justice Ndewere, but also to all other judges who may find themselves in her position. A judge who is referred to a tribunal now faces the threat of being deprived of his or her wages and benefits. This is a daunting situation for any serving judge, which they would try to avoid by complying with the directives of the removal authorities. This presents more opportunities for judicial capture.
A corrupt judge is easy to capture. The captors’ motive and strategy are to recruit judges into the racket. Once a judge is part of the network of corruption, he or she is compromised. He or she will become invested in corruption. It will become impossible for the judge to rule against members of the corruption network because doing so would be going against his or her interests. The Constitutuon anticipates the problem of gifsts to members of the judiciary, which is why it states in section 165(5) that “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”.
In practice, this principle is not respected. Take for example the RBZ Farm Mechanisation Program, which also it was before the 2013 Constitution, the same principle still applied on an ethical basis. Under that scandalous scheme, large loans of farming equipment and machinery were given to several elites including some judges and magistrates. Those loans were later converted into grants, meaning beneficiaries did not have to pay back. The names of beneficiaries were also never officially disclosed. It’s impossible to imagine that judges and magistrates who benefited under that scheme could be trusted to be independent and impartial when handling disputes over the scheme, or indeed other matters involving their benefactors.
There have been many other schemes since then, including Command Agriculture, which is also mired in gross corruption. To the extent that judges have been beneficiaries of these corrupt schemes, it makes them party to the racket leading to conflicts of interest which impairs their independence and impartiality.
The reason why judges should only be paid from the national treasury is to prevent situations that make them vulnerable to capture by the wealthy elites who could do so by offering them gifts and other privileges. The moment judges become beneficiaries of non-transparent private schemes; they are exposed to capture. Therefore, it is a serious concern that current judges must rely on a private fuel supplier to get fuel supplies for their daily commute to and from work. How could the judges be fair and impartial in a dispute that involves that fuel supplier which has become a benefactor of the judiciary? Such a scheme may be a necessity for the judges who have been left exposed by the government, but it leaves the institution of the judiciary vulnerable to capture by private business interests.
Judicial capture can also occur by administrative fiat. This is rule by decree which is issued from a higher office without the authority of law. This is closely linked to the use of an autocratic style of leadership of the judiciary. It happens when the leadership of the judiciary issues orders that effectively interfere with the independence of the judges. One example is a recent directive issued by Chief Justice Malaba to judges of the High Court. The essence of the directive was that each judge was required to show his or her judgment to a superior before issuing it publicly. In other words, all judgments had to be vetted by the head of the High Court. This represented extreme interference with the judicial decision-making process. The judges successfully resisted this directive. The fact that the Chief Justice contemplated and issued it symbolised an authoritarian streak in the management of the judiciary, which ultimately exposes judges to capture.
Judges are also exposed to capture when they are exposed to over-familiarity with external parties, including members of the executive or business elites. Over-familiarity can happen in both public and private spaces that are shared by members of the judicial, political, and business elite. This could at the social or golf club where the elites are likely to patronise or indeed the similar neighbourhoods where they reside. There are no written rules to guide relationships in these spaces.
However, this is where the unwritten rules come in. The norms, traditions, and conventions that guide relationships between judges and members of society, elite or otherwise are important in preventing capture. It is up to the judges to prevent minimise the risk of over-familiarity which would lead the natural sympathies towards certain parties because of their class or related interests, also a form of capture. A judicial code would require judges to declare any gifts that they are offered during their tenure of office. This and other measures are necessary to minimise the risk of disguised bribes.
WHAT ARE THE INDICATORS OF JUDICIAL CAPTURE?
While it is easy to throw around the term judicial capture, it is not easy to prove. What I propose here are tools that may be used to gauge whether there is judicial capture.
As I have already pointed out, judicial capture occurs when the judiciary is captured by private interests. These private interests could be political, commercial, religious, class-based, ideological, and more. A lot of interest is often focused on political capture where the judiciary sways in favour of the government and the ruling party as against the opposition. However, it can only be said there is capture when the judiciary demonstrates a consistent and systematic bias towards that private interest. Judicial rulings would consistently favour the government or the ruling party.
This does not mean there are no exceptions. Indeed, there may be occasional cases where the government loses, or the opposition wins. Such cases are often flagged and paraded as evidence of judicial independence. However, this would be misleading as evidence of independence. Arguably, an institutionally biased judiciary may still contain a few judges that are prepared to issue impartial decisions. They would be the exception, not the rule. The preponderance of cases would be in favour of specific private interests. Such decisions would not be enough to change the narrative of systemic bias.
Once the outcome of politically related cases before the courts becomes predictable, this can be a warning sign of political capture. The decisions of courts should not be too predictable. However, when citizens begin to tell with ease that the courts will almost always rule in favour of the state, it raises a red flag over the lack of independence and impartiality. For example, whenever a critic of the government is arrested and brought to court, Zimbabweans have become accustomed to the fact that the accused will not only be denied bail but he or she will be subjected to a merry-go-round through the justice system. The experience of journalist and filmmaker and journalist Hopewell Chin’ono, who is currently in detention, is one of the classic examples of this phenomenon. The predictability of adverse decision-making and the deliberate delays of the justice system have led many to believe that the courts are captured.
Most Zimbabweans are now familiar with the phrase “Catch and Release” because they have become used to a practice where the law enforcement authorities arrest a politically exposed person (PEP) who is released soon afterward on bail. Such predictability has led people to believe the courts are part of the conspiracy, where the regime appears to be doing something about corruption without doing anything at all. This predictability contrasts with the predictability of how government critics are treated, which leads to the next point. The key here is that it’s an indicator of bias when the judiciary’s decisions become predictable in their favour towards the ruling party and PEPs and their adversity towards the opposition and government critics.
SELECTIVE APPLICATION OF THE LAW
This is also part of both systematic bias and predictability, although it is distinct and deserves separate treatment. It is trite that like cases must be treated similarly. However, when the judiciary treats like cases differently when the only difference is political parties involved, it raises questions of bias. Take, for example, the case of Kudakwashe Bhasikiti, a former ZANU PF MP who challenged his expulsion from the party and parliament in 2015. The court dismissed his case telling him that he should have exhausted internal remedies in ZANU PF. When Mashavira sued the MDC-T in 2018, challenging the internal irregularities in the party, the court entertained his case and dismissed the argument that he should have exhausted internal remedies.
It is this selective application of the law which cements the view that the judiciary is captured. Selective application of the law, which is systematic is an indicator of judicial capture. This is more apparent where there are other related aspects of bias and selectivity by other arms of the state, for example, how the prison authorities leniently treat PEPs like Henrietta Rushwaya compared to the harsh approach towards Hopewell Chin’ono who has worked tirelessly to expose corruption.
ABSENCE OF DISSENT
The systematic absence of dissent in judicial decision-making in the superior courts is a worrying sign. When judicial panels make decisions, it is not unusual for them to be diverse opinions on a matter. Indeed, consensus, especially on critical and controversial matters is rare. Even if judges agree on the outcome, they might differ in their reasoning. In most countries with a decent and independent judiciary, there will be a majority opinion and a minority or dissenting opinion. Even some judges in the majority might write their judgment demonstrating their reasoning.
A diverse, vibrant, and independent judiciary is likely to have more robust decision-making processes that include dissenting opinions. This is a sign that judges have the freedom to make up their minds and to express their opinions even if they differ from the Chief Justice’s opinion. By contrast, a weak and captured judiciary is likely to have more uniformity in decision-making without any dissenting or diverging opinions. A quick perusal of judgments of the Supreme Court and the Constitutional Court shows that there is almost always a single majority opinion and no dissent. Usually, the judgment is written by the Chief Justice. The diversity of the courts is hardly evident.
During the interviews for the Constitutional Court, two of the candidates raised as matters of concern the fact that the Constitutional Court had a small workload because most cases were dismissed at the preliminary stages on technicalities. The judges who tend to handle these preliminary matters are the Chief Justice and his Deputy. The absence of dissent might because of a policy championed by the Chief Justice of making decisions by consensus. But it limits judicial freedom and leads to poor jurisprudential leadership on the part of the court. The more judges express themselves on the law, even as dissenting opinions, the better for the development of the law.
I wrote this paper after a presentation on judicial capture at the SAPES Trust Dialogue Forum this week. I limited it to examining the theory of capture, the causes of capture, and the indicators of capture. I have omitted the historical analysis of how the Zimbabwean judiciary developed since 1980 as the BSR would have become too long. However, that historical analysis is already available in an older BSR, which is already cited. The important points are:
Capture is a multi-dimensional concept. Capture occurs when private interests gain control of the judiciary. These private interests could be political, commercial, class-based, ideological, religious, etc. However, it is the political private interests that are usually implicated in judicial capture.
There are several drivers of judicial capture, including corruption of judges and disproportionate control of how judges are appointed, compensated, and removed from office. Judicial poverty in particular makes judges extremely vulnerable to capture. Other factors like over-familiarity between judicial and other elites also enable capture while the style of leadership of the judiciary can weaken judges and make them more vulnerable to capture if it is autocratic.
Allegations by Justice Ndewere that both the Chief Justice and the Judge President tried to exert undue influence in her decision-making process are serious and deserve proper investigation. The bare denials by the two men are vague and embarrassing especially for judicial leaders who would frown at and dismiss such affidavits if they were presented before their courts.
Fighting judicial capture requires attention to these drivers of capture, which is why Constitutional Amendment No. 2 must be resisted. It is also why Justice Ndewere deserves more support from the public and informal gatekeepers of judicial independence such as the Law Society of Zimbabwe, the Church, and civil society. Presently, these gatekeepers are largely letting her down. She could do with more support and solidarity from the regional and international community of jurists. The support would not only be for Justice Ndewere but the rest of the judicial officers serving in an increasingly authoritarian Zimbabwe.
Finally, the crisis of judicial capture is part of the broader political crisis that Zimbabwe is facing. It cannot be solved in isolation. There will be efforts to assist the judiciary in technical matters, but if the allegations made by Justice Ndewere and others concerning the leadership of the judiciary, then the problem is deep-rooted. There was an attempt to overhaul the judiciary during the last constitution-making process. It failed and these are the consequences of that failure. I’m not sure the rot in the judiciary can be resolved without attending to the general malaise in the politics of the country.