Global Judicial Integrity Network Updates Special Edition 'Views' Review | Page 20

VIEWS
The Stabilizing Force of Institutional Independence
Judge Edith Mushore is currently acting as a High Court Judge in Zimbabwe.
The concept of judicial
independence,
in
its
theoretical
sense,
may
appear to be a banal and
non-contentious
issue.
However, when it is put into
practice in the discharge
of one’s duties as a judge
it becomes a loaded issue
which is critical in the delivery of real and
substantial justice. The reality is that the
institutional independence of the judiciary goes
to the very root of the ethical and constitutional
obligation owed by a judge in exercising their
duty of care to those parties who appear
before them. It is essential, however, that the
judge feels unencumbered by the possibility of
negative consequences, which may flow from
the decision which they may make.
When judicial independence is
put into practice in the discharge
of one’s duties as a judge, it
becomes a loaded issue, which is
critical in the delivery of real and
substantial justice.
This is where security of tenure plays a
pivotal role in assisting a judge in coming
to a determination without fear of penalty,
censure or sanction. In Zimbabwe, as in most
constitutional democracies, security of tenure
is enshrined in the Constitution; it is provided
that neither the state, nor any institution,
20
agency or person may interfere with the
functioning of the courts. At the same time,
there is a duty arising from the Constitution
for a judge to continuously behave in a manner
which presents the judiciary as being beyond
reproach.
The state of judicial independence in Zimbabwe
came under enormous public and international
scrutiny recently, both during and in the
immediate aftermath of the parliamentary and
presidential elections. The stakes were at an
unprecedented high, as the notion of democracy
had taken reign in the electorate after 37 years.
The highly politicized environment apparent
in the country bore down an intense need for
Electoral Court and Constitutional Court
judges to acquit themselves with an exemplary
level of independence and transparency. Any
perception by the citizenry that the judiciary
was pressured by the executive branch or
biased toward any contesting parliamentary
candidate was a possibility for spontaneous
unrest potentially capable of destabilizing the
country.
This is where the concept of decisional
independence became a key and necessary
survival tool to lean on whenever the enormity
of the responsibility of upholding the rule
of law became overwhelming. Taking a leaf
out of the Bangalore Principles of Judicial
Conduct, and remembering that my tenure was
auspiciously guarded by the Constitution as
a Judge of the Electoral Division in the High
Court, I was able to rely on the foundation of
decisional independence and knew that by
applying the facts to the law neither I, nor
my decision, would invite either sanction or