The survey had the following three broad objectives:
- Identifying and documenting challenges in the justice delivery system from the perspective of both users and service providers.
- Establishing whether there are programmes in place to assist the marginalised and vulnerable to access justice and assessing the adequacy of such programmes.
- Coming up with recommendations on how the challenges can be addressed and also assisting the LSZ to develop a tool to monitor the implementation of measures which shall be adopted.
The study used a mixed methodology approach but with greater reliance on the qualitative approach informed by the need for LSZ to gain in-depth understanding of the gaps in the justice delivery system and how such gaps can be addressed. The study used a sample purposively drawn from 18 districts of the country.
Gaps Relating to Accessibility of the Justice Delivery System
Inadequacy of legal assistance programmes
The study revealed that the majority of litigants who make use of the justice delivery system in the magistrates’ court do so without legal representation. Court officials estimated that an average of 65% of the people who approach the magistrates’ courts in urban areas and 85% of those who access magistrates’ courts in rural areas do so without legal representation, yet the procedure is complex and technical.
The study established that legal aid programmes for the marginalised and vulnerable are not adequate as demand for the services is high and the institutions and organizations offering legal assistance are constrained in terms of capacity. Most of the service providers offer assistance in urban areas making it difficult for the rural populace which has the greatest need to access the services unless they travel to the urban centres.
The study further revealed that most CSOs offering services to the indigent target women and children with the generality of the indigent not benefitting from the services. It was established that the IFP (Informa pauperis) intervention is being underutilised because people are not aware of this facility. It was further established that lawyers are not interested in taking up IFP cases and the JSC has resorted to referring most of the people in need of assistance to the Legal Aid Directorate and to Civil Society Organisations.
Costs of accessing justice
The survey revealed that the costs of accessing justice are very high, with the result that most people faced challenges in pursuing their cases to finality. All the respondents; judges, magistrates, clerks, lawyers and the police, were in agreement that MOC and Deputy Sheriff fees were unreasonably high. There was consensus that court fees were nominal and in as much as people struggled to raise these, they were not as inhibitive as the MOC and Deputy Sheriff fees. Court fees specifically relating to appeals were cited as being on the high side. The survey established that indigent women were the worst affected with the issue of the inhibitive costs.
Gaps which compromise integrity, efficiency and effectiveness of the justice delivery system
The study revealed that the perception amongst most of the respondents who participated in the survey is that corruption is prevalent within the justice system. The magistrate’s court was singled out by lawyers as the institution where corruption is prevalent with prosecutors, clerks of court, registry staff and other support staff being labelled as the most corrupt. All the lawyers who participated in the survey indicated that prosecutors were the most corrupt officials in criminal proceedings.
The findings revealed that due to information asymmetry self-actors fell prey to unethical conduct of some clerks and support staff at courts and sometimes paid money to get papers drafted for them and to get directions on how to proceed with their case. The findings however revealed that corruption is a complex phenomenon because of the “willing buyer, willing seller” concept with the result that very few cases are reported.
The study further established that other forms of corruption did not necessary involve the exchange of money but were cases of abuse of power and authority where political and powerful figures used their influence through instructions for arrest and prosecution of opponents or protection of their relatives or friends facing criminal charges. The study also established that perceptions which the public has with regard to corruption were partly due to lack of awareness and knowledge of how the justice system works.
Lack of Knowledge, Skills and Attitudes
The findings revealed that generally police lacked skills to investigate economic crimes, complex crimes, crimes where ICT is used and sexual offences. It was further established that they lacked an understanding of issues relating to the rights of accused persons, with the result that accused persons rights were violated. The study also revealed that most young lawyers lacked skills in drafting papers and in courtroom advocacy with senior lawyers not doing enough to train them. Findings were made to the effect that police and army prosecutors did not have the requisite prosecutorial skills and that generally prosecutors needed refresher courses and continuous development programmes to build their capacity to deliver effectively and efficiently. No major issues were raised with regard to the skills and knowledge of magistrates and judges.
Delays in Setting Down and Finalisation of Cases
The survey established that generally there were delays in setting down criminal matters for trial with the result that courts end up refusing further remands. It was established that the delays in the justice delivery system were due to staff shortages within both the NPA and JSC, poor case management by the police and NPA and poor work ethic on the part of lawyers, magistrates, police and prosecutors. A finding was made to the effect that self-actors experienced delays in finalisation of their civil cases in the magistrates’ court due to postponements because they would not have not filed correct papers. It was established that there had been a marked improvement in turnaround times at the High Court with the result that cases were set down and finalised within fairly reasonable times. The study however established that some lawyers still experienced delays in the handing down of judgments in the Supreme Court and Constitutional Court.
Unwelcoming and Unfriendly Environment at Courts and the Police
The study established that the environment at courts and police stations was generally unfriendly and unwelcoming particularly for self-actors. The study revealed that the police generally had no respect for complainants and the set-up at the reception area was such that complainants were forced to disclose their cases in the hearing of other officers, which was very uncomfortable for sexual offences and gender-based violence survivors. The study established that clerks of court were generally rude and intimidated court users, giving them the impression that court procedures were very complex and, self-actors resorted to paying money in order to get assistance from them. The study also revealed that the court environment was also intimidating to female victims of sexual offences who in most cases are not aware that the prosecutor represents their interest and should explain to them how their case will proceed. It was noted that there are no confidence building measures in place for survivors of sexual offences and other gender -based violence cases.
The study established that the police are the worst affected by inadequate resources, which compromises their ability to carry out effective investigations particularly in sexual offences and gender-based violence. The survey revealed that the VFU in particular is woefully and this partly contributes to poor investigation of cases and acquittals. The study further revealed that prosecutors do not have libraries and find it difficult to carry out research in respect of cases they will be handling. The lack of recording equipment in some criminal courts was cited as an impediment to justice. The study established that staff shortages in both the NPA and JSC are also affecting justice delivery thus the delays in setting down of matters and handing down of judgments.
Read the full survey report here (961 KB PDF)
The Law Society of Zimbabwe (LSZ) has been implementing a three year project with support from the European Union (EU) from 2017- 2020.
This publication was produced with the financial support of the European Union. Its contents are the sole responsibility of the Law Society of Zimbabwe and do not necessarily reflect the views of the European Union.
Source: Law Society of Zimbabwe