The starting point of [this] crucial discussion, for me, has to be the acceptance of the idea that an independent and impartial judiciary is integral to and indispensable for any real constitutional democracy. The question that then comes up is: What do I mean by the term “a real constitutional democracy”?

I would suggest, without any hesitation, that this may be said to be the generally accepted approach in democratic circles today: a real constitutional democracy must, by definition, be governed by a supreme justiciable constitution, entrenching three essential components — all universally accepted fundamental rights and freedoms, generous accountability and genuine responsiveness.

A justiciable constitution presupposes, of course, the existence of an appropriately qualified, empowered, independent and impartial body or entity to adjudicate constitutional issues; an institution that decides debates about whether there has been constitutional compliance in cases in which there is an allegation that the constitution has not been complied with and in which that contention is hotly disputed.

Neither the executive nor the legislature can be authorised to decide these cases, for the obvious reason that they are interested parties. Only an independent and impartial judiciary can adjudicate these complex and sensitive disputes effectively and fairly.

We must remember that these disputes are mainly between, on the one side, individuals or communities who claim that their rights have been infringed upon, and on the other side a government entity contending that this is not so.

An independent judiciary can and must stand between the government and the people, protect weak and vulnerable human beings against executive abuse and ensure that all, including government, comply with each and every constitutional injunction. Without doubt, a decision by a judicial officer who wrongly condones or justifies executive and legislative abuse and negates the rights of human beings materially damages democracy and the constitutional vision, often irreversibly.

What is more, a judicial decision in every case, however insignificant that case might appear to be, has implications for the deepening of a real democracy and for constitutionalism itself.  This means that a judicial officer who is not wholly independent and impartial in a particular case does much more than prejudice that case. A lapse of this dimension inevitably injures democracy, and contributes to its weakening and possibly even ultimate destruction.

It is laudable that many countries in the Southern African Development Community (SADC) region do indeed have truly democratic constitutions. But — and this is a very big but — without an independent and impartial judiciary, an apparently wonderfully empowering constitution is worth much less than the paper it’s written on.

Zimbabwe, among other countries in our region, is a case in point.  The constitution of Zimbabwe does certainly portray what I would call a real democracy. There are some judicial officers in that country who have been and are models of independence and impartiality. But the extent of the breach of these principles by judicial officers has, as we will hear, been so egregious that it has exposed democracy there to frighteningly real risk.

Judicial impartiality and independence through independent lawyering

Ordinarily, an independent judge is not just a miraculous occurrence. An independent and impartial mind is sometimes an inherent human characteristic, but more often these rare qualities need to be carefully developed and nurtured. The independence and impartiality required of a judge is normally grown and honed during practice as a lawyer. Not just any lawyer, but a lawyer committed without qualification to the highest standards of integrity, a lawyer who embraces and complies with the ethical principles governing the legal profession.

It is true that lawyers are tasked to represent the interests of clients to the best of their ability and, in that sense, may be perceived to be neither impartial nor independent. Some members of the profession have sought opportunistically and impermissibly to misconstrue the so-called “cab rank” rule. This is a norm that obliges practitioners to accept instructions to act for any person, however reprehensible the alleged conduct of that person might be thought to be. These detractors unashamedly assert that they are, by some inexplicable extension of a well-meaning rule, obliged (indeed entitled) to act without constraint to protect their clients and to carry out instructions to the letter regardless. 

But practising lawyers cannot be left to their own devices when representing clients. They too are bound by a constitution and must do all they can to ensure that criminal and civil proceedings are fair. Fairness in this context is absolutely distinct from and inimical to the growing tendency by certain lawyers to resort to every conceivable crass manipulation of court proceedings to the advantage of their clients, irrespective of the injustice they cause. And they do this in pretended ignorance of the degree to which they bring justice and the constitutional order into disrepute.

It must be said that this is highly improper. Lawyers who aid their clients to use the portals of justice as political gambits are to be deplored.

Importantly, lawyers are also obliged to be honest, not to mislead judges, not to invent cases for their clients, to withdraw if they receive conflicting instructions, to respect and protect the dignity of all human beings even during cross-examination, not to contribute to injustice or unfair proceedings and, in general, never to represent clients in a way that is not consistent with the values proclaimed by the constitutions of their countries.

Lawyers who conduct themselves in a way that is contrary to these wholesome precepts, as mere servants at the bidding of their clients without compunction or question, cannot be said to be acting independently. They too contribute to the unacceptable compromise of the constitutional order and vision. The bodies responsible for lawyering ethics in the region should ensure that rules are made which make this kind of conduct unacceptable and deserving of serious punishment.

These remarks are particularly apposite when this improper conduct manifests itself by the way in which lawyers for government and former government representatives against whom serious allegations of corruption and constitutional non-compliance are alleged. This immoral approach often means that perpetrators of these damaging actions are seldom, if ever, brought to book.

Lawyers cannot be said to be independent if they regard civil,  constitutional and criminal court proceedings as a game or sport in which winning or making money is the main, if not the sole, objective.

So the independent lawyer we speak of here is one who demonstrates in action a real commitment to all constitutional values. These values include the attainment of justice, ensuring that proceedings are fair, respecting the inherent dignity of all human beings (even the people who are not their clients), and conducting their cases with integrity.

A truly independent lawyer is a caring human being first, a courageous democrat second, and a lawyer only third. An independent lawyer cannot therefore be concerned with lawyering alone. Ideally, we should all participate in the life of the community, act in every possible way against injustice, oppression, exploitation and government abuse as well as support community efforts aimed at improving the lives of all human beings.

To come closer to home, all independent lawyers should comply with their duty to inculcate a culture of true integrity in their colleagues, and to take all lawful steps including meaningful protest action to support lawyers abused by the system, and against all judicial abuse and impropriety. Legitimate mass action by independent lawyers is entirely appropriate and often necessary in the struggle for justice. It cannot be denied that this is a continuing struggle requiring courage and vigilance.

The relationship between independent judging and independent lawyering

There is what may be called an interactive and dynamic relationship between independent lawyering on the one hand, and impartial independent judging on the other. It is hard to conceive of a lawyer devoid of the necessary integrity and independence transforming into an independent impartial judge. In the same vein, it is virtually impossible to conceive of an independent lawyer with integrity who is elevated to the judiciary descending into the doldrums of a judicial officer who is less than fully impartial and independent.

A judge who had been an independent lawyer with integrity would certainly find it thoroughly obnoxious and therefore quite impossible to cooperate with the executive and silence or oppress legal representatives in their effort to do their work in the highest ethics of their profession.

But judicial officers also have an undeniable duty to cultivate and encourage brave ethical lawyering.

Ultimately, any compromise of independent lawyering with integrity would negatively impact on the independence and impartiality of the judiciary in the short, medium and long term. A less than impartial and independent judiciary would, in the normal course, fracture the independence and integrity of the lawyer, ultimately affecting the judiciary itself.

The need for independent action

We must all therefore stand firm and act collectively and decisively against any effort aimed at preventing lawyers from doing their work properly in the interests of freedom of expression, fair and just legal proceedings and the achievement of a constitutional order in which dignity, equality, freedom and social justice prevail.

Members of the legal fraternity and judicial officers must be united across the SADC region with the support of democrats everywhere to achieve this result. I wish us all the very best in our deliberations in the hope that we will take our struggle forward tenaciously and in leaps and bounds. DM/MC

Zak Yacoob is a retired Constitutional Court judge.

This article was originally delivered as the keynote address at the SADC Lawyers’ Association regional solidarity webinar on independence of the legal profession on 7 October 2020.