Judicial activism: Judges or Legislatures role to make law? An Insight by Lincoln Majogo

      LEGAL. 

             Introduction

The area of judicial activism and restraint remains one of the most contentious topics amongst legal scholars and judges all over the world. Hinged on the doctrine of separation of powers, the judiciary’s traditional role has been confined to interpreting statutes whilst the legislature retains the duty of making laws. In Zimbabwe, like most democracies the law-making role vests with parliament in terms of section 130 of the Constitution.

 A question often arises over the role of judges in circumstances where existing laws are unjust. Is a judge justified in departing from precedents (judicial activism) where a law appears patently unjust for instance colonial segregatory laws during the colonial era in Zimbabwe. The risks are of-course manifest as this constitutes an encroachment of the judiciary inside the arena of parliament. Various problems arise from this encroachment, chief amongst them being a violation of democracy as unelected officials (judges) are seen to be usurping powers legitimately granted to elected members by the public. More subtly, as has been noted, this creates uncertainty in the law prompting policymakers to second guess decisions before passing them. The obvious problem judicial activism creates is the accountability of the judiciary.

It is clear creating3 arms of government is to provide checks and balances and prevent abuse of power. In this light, these organs should exercise their powers within the scope of powers granted to them. Section 2 of the Constitution of Zimbabwe enshrines the supremacy clause of the Constitution of Zimbabwe which if construed in its ordinary grammatical meaning infers that all organs of the state are accountable to it. This is so because the constitution is a resemblance of the will of the people, it is the bold voice of governed, the resemblance of the electors from whom the government derives its legitimate authority.

However, progressive judiciaries have always ripped the fruits of taking daring risks of departing from judicial restraint which is loosely defined as the adherence by the judiciary to precedents. Whilst the benefits of judicial restraint cultivate certainty within the legal fraternity, it at times is seen as bedding with the devil in circumstances where great harm or injury to a person or a class of persons patently surface but the judges refuse to depart from their the traditional role of interpreting the law. The article shall analyze the interplay between these two in light of contentious issues in Zimbabwe, chief among them being spoliation during land reform, consensual homosexuality and abortion.

 

 

 

Historical context in Zimbabwe

The concept of judicial activism itself has no definite and exact definition It has variously been defined as, a philosophy advocating that judges should interpret the Constitution to reflect contemporary conditions and values; when courts do not confine themselves to reasonable interpretations of the law, but instead, create law or when courts do not limit their ruling to the dispute before them, but instead, establish a new rule to apply broadly to issues not presented in the specific action.

 Judicial activism is the process whereby the judge’s advocate for certain reforms within the legislation. This often occurs in situations where existing laws seem “defective” or outdated to live up to the standards of a certain society. This principle should be distinguished from judicial passivity where judges retain the tradition's role of merely interpreting the law and going no further. Sometimes judges often grapple with difficult questions of law which involved going beyond their ideals of morality for instance abortion, homosexuality. These questions may have a bearing on public perception of the law. The precise definition of public policy itself is not an easy one. Luckily the court in Zesa v Maphosa1999 (2) ZLR 452  a matter that dealt with whether or not an arbitrators award violated public policy, the court weighed in on the issue citing very persuasive authorities. Renusagar Power Co Ltd (India) v General Electric Co (US), reported in (1995) 20 Yearbook of Commercial Arbitration 681, the Supreme Court of India at 702 concluded that enforcement of an award: Page 466 of 1999 (2) ZLR 452 (S) ―would be refused on the grounds that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.‖

 In Leopold Lazarus Ltd (UK) v Chrome Resources SA (Switz.), reported in (1979) 4 Yearbook of Commercial Arbitration 311, the Cour de Justice, Canton of Geneva, at 312, underscored that before the defence of public policy can be upheld: ―There must be a violation of fundamental principles of the Swiss legal order, hurting intolerably the feeling of justice

It is clear from the definitions proffered above that public policy has been intricately tied to public morality and the values of natural justice. A perfect example of extremely complex issues where judges were caught up between the catch 23 of choosing between restraint or activism was with spoliation proceedings during land reform. The common law position with regards to spoliation was that it being a possessory remedy, and it being so the courts were not required to delve into the merits but simply ascertain two things namely: whether the despoiled was in peaceful and undisturbed possession of the thing and whether and if they were deprived of it unlawfully. The rationale of the law is clear as enunciated in the Dodhill case, (HC 1028/09) [2009] ZWHHC 40 (15 March 2009); Chisveto (1984 (1) ZLR 248 (H) where the court held that the purpose of spoliation is to discourage self between private parties.

In other words, if a thief is in possession of stolen goods and another thief dispossesses them of these, the courts will grant spoliation relief to the first thief. This in any way does not translate to condonation of the crime of theft; it is simply a matter of the court restoring parties back to the status quo ante so it can begin dealing with the more pressing issues of theft.

The brief background of the situation was that the government enacted the Land Acquisition Act together with the Gazetted Lands Act which recognized the government’s rights under eminent domain and right to self-determination to compulsorily acquire land for resettlement purposes. The occupiers of the lands in questions, who were largely white farmers were served with notices of eviction. The notices specified a tame frame within which the farms were supposed to have been vacated, failure of which constituted a violation of a lawful order by the government. The white farmers did not evict from the designated farms and a stalemate resulted.  In 2000 however, a series of farm invasions occurred in which the icy impasse was forcibly thawed down leading to an outcry by the international bodies over gross human rights abuses and the rest, well you know….

Clutching at the last stray of hope, former white farmers applied to the court for mandament van spoilie. 2 interesting but diametric views emerged. If the courts ruled in favour of the applicants, it would sanction their illegal stay on the farm. If on the other hand the court refused to grant this interdict it would sanction the illegal and forcible ejection of the farmers. The judge’s opinions were divided in the matter. The Gubbay bench in the CFU v Minister of LandsSC-132-2000 case held that the applicants (white farmers) had satisfied the requirements of spoliation namely that there were in peaceful and undisturbed possession and that they were unlawfully dispossessed.

The court held that lawfulness of the possession does not enter into it. From this perspective, it is clear the bench had clung to judicial restraint in abiding by precedents that had held that lawfulness of possession does not enter into it. The matter was reheard before the Chidyausiku bench the next year and the newly constituted bench took another approach.

The Chief Justice held that common law cannot render nugatory an Act of Parliament (judicial activism) and in supporting this refused to grant the order to the applicants. This has been termed as the dirty hand's doctrine i.e. he who approaches the courts with dirty hands cannot seek the audience of the court. The approach would further be adopted by the Supreme Court bench in Associated Newspapers for Zimbabwe v the Minister of Information SC20/03 where the bench had this to say, in the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable.   For the avoidance of doubt the applicant is not being barred from approaching this Court.   All that the applicant is required to do is to submit itself to the law and approach this Court with clean hands on the same papers.   The applicant is operating outside the law and this Court will only hear the applicant on the merits once the applicant has submitted itself to the law.

 The new constitution in section 85 has changed this position and allows a person who has contravened the law to seek the audience of the court. The provision reads as follows;

 85(2) the fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).

From the above authorities one can tell the patent confusion policymakers grapple with in such situations where the highest court in the land passes 2 apposite decisions. But more importantly the confusion it creates for subordinate courts. Zimbabwe’s system is based on stare decisis which means decisions of a superior court are binding upon the subordinate courts. The high court and magistrates courts being subordinate courts have to scratch their heads to decide which precedent to use. The public itself is not exempt from this uncertainty in the law. Tenants staying under someone’s property will want to know the scope in which their right from eviction is protected, so will the public when they approach the court. Societal confidence in the judiciary cannot be overemphasized. Judicial activism upsets that uniform application of the law.

Another interesting contentious issue was on consensual homosexuality, a matter where the bench was divided on restraint and activism. The facts of the matter involved Canaan Bananas relationship with several male aides whilst he was in office ( www. Icj.org, Banana v State) Section 23 of the former constitution enshrined a provision of protection from discrimination on the grounds of gender. The argument posited by Banana was that criminalizing anal intercourse between males and not between heterosexual couples was discrimination. It is clear this issue has raised serious concerns before judiciaries all over the world for instance in National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional court of South African found unconstitutional the statutory and common law offence of sodomy. In Romer v Evans, the US Supreme Court found unconstitutional an amendment that withdrew a specific class of people-gays and lesbians from the protection of the law without a legitimate state's purpose. This was held as a violation of the equal protection clause of the federal clause. The Canadian Ontario Court of appeal in R v M(C0, 1995) made a finding that a higher age of consent for anal intercourse than for virginal intercourse was discriminatory and violated section 15(1) of the Canadian Charter of Rights and Freedoms.

In the Banana case, the court was in no doubt seized with a contentious issue which without doubt had a bearing on the conservative majority of Zimbabweans. By a 3-2 majority, the The court rejected the constitutional appeal. The majority placed great weight on Bowers v Hardwick emphasizing that in 1986, 25 states in the United States criminalized consensual sodomy. “The fact remains that the present stands of perhaps the most senior court in the western world is that it is not unconstitutional to criminalize consensual sodomy”.

Public policy once again was invoked in the determination of the case. ‘I do not believe that this court, lacking the credentials of a properly elected parliament, should strain to place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative”.  

The Bowers case “the court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language and design of the constitution (www. Icj.org, Banana v State). The dissenting Chief Justice together with another judge reasoned that the Bower case had been based upon the right to privacy which is not specifically mentioned in the Constitution of the United States (www. Icj.org, Banana v State).. The dissent also relied on the fact the Bowers case had been heavily criticized by the same court in Romer v Evans when which struck down a discriminatory amendment to a state constitution.

It is clear that the superior courts, the Supreme Court and constitutional court are sometimes caught up in these contentious topics. Suffice to say, laws that do not conform to the values and moral standards of the people have in some instances been met with violence and stiff opposition. Notable examples in the American prohibition of alcohol in 1918 after Congress passed the 18^th amendment to the constitution, prohibiting the manufacture, transportation and sale of alcoholic beverages saw stiff opposition by the public forcing a repeal of the amendment in the 1930s.

 Although the two cases are clearly distinguishable from the other, it goes without saying the public policy is a strong consideration in passing judgments. Judgments should be capable of being enforced, a factor of which will reduce the legitimacy of the court as empty judgments are often disrespected and courts are seen as advancing interests groups whose ideas are seen as contrary to the public majority. The judge is thus caught up between giving a statute a liberal interpretation which departs from the clearly established precedents and taking the risks to protect the rights of minority groups.