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The Chief Justice should do the right thing and step aside

There is no doubt in any discerning mind that those closest to King Mswati enjoy protection from the operation of the law. The matter of Chief Justice Michael Ramodibedi is a case in point. He has been suspended in his home country of Lesotho and is facing charges that include criminal behavior. But, in Swaziland, he is toasted as a leading jurist with an unblemished record. This does not say much for the country’s judiciary. That a member of the Judicial Services Commission is also being protected from the law tell you where Swaziland is. THULANI MASEKO writes.

Nelson Mandela and the many lessons we learn from him has told us that the Judiciary is the cornerstone of democracy. What is even more important, he says, is the commitment to abide by its decisions even when such decisions are not in favour of the powerful.

In any event, when judicial officers such as lawyers, take the oath of office, they swear to render justice to all “without fear or favour.” Mandela has abided by the decisions of the courts even where he was personally challenged as State President. In one landmark case he was called upon, as president of South Africa, to testify after he had set up a commission of inquiry into rugby, a sport pre-dominantly run by white in South Africa.

He did not refuse, but submitted himself to the legal process. As a sitting President, a Proclamation he had issued was challenged in the Constitutional Court. The Constitutional Court, a court he helped found during the constitutional talks at the collapse of apartheid, presided over by the then Chief Justice Arthur Chaskalson (may his soul rest in eternal peace), - a fine jurist of unquestionable integrity and character who was part of Mandela’s defense team at the treason trial together with Advocate George Bizos - found against the famous and most loved President.

The Court unanimously set aside Mandela’s Proclamation on the ground that it was unconstitutional as the President could not legislate as that was a function reserved for the legislature. When King Sobhuza II was challenged before the Privy Council by Allister Miller and the court found against him, he accepted the decision although he was aggrieved by the outcome. It is worth remembering that Mandela held King Sobhuza II in high esteem as a progressive monarch, was a card carrying member of the African National Congress (ANC), and traditionalists ironically pride themselves about this, the governing political party in South Africa today.

One is tempted to think that King Sobhuza II may have been a progressive King who lived in different circumstances than the present King and he read the times when many African countries were no-party, one party or military juntas. This could have influenced him to declare the state of emergency. This is not to say that his unlawful repeal of the Constitution was justified. No! The state of emergency cannot be justified today when most of Africa claims some democratic credentials.

Kamuzu Banda in Malawi with his dictatorial tendencies lost power; Kenneth Kaunda in Zambia was forced to open the democratic space; Daniel Arab Moi in Kenya was forced to allow democracy to take its course; Julius Nyerere in Tanzania opened the way to multiparty democracy; even Yoweri Museveni allowed Dr. Kizza Besigye to contest elections under his political party but did not allow him to win by rigging the elections as has been alleged. So did President Robert Mugabe in Zimbabwe. Mozambique and Namibia are growing democracies. What is different about Swaziland?

Mandela’s commitment to democracy and the independence of the judiciary is relevant in the context of the shenanigans that are happening in the Swaziland judiciary. At the risk of being found to be in civil contempt, it is important to dare say that Professor Michelo Hansungule put it very well that the Chief Justice, Michael Ramodibedi should step aside until he is cleared of the allegations leveled against him in his motherland, Lesotho.

Professor Hansungule must be thanked for his bravery and his observations are absolutely correct. For they do say that once a judge always a judge. The Chief Justice cannot be accused of wrong-doing in one jurisdiction and hope that will not affect his integrity in another. The same applies with attorneys, and judges are lawyers. A lawyer accused of mischief in one country cannot be in good standing in another jurisdiction until he has been cleared. Common sense it is. It is a wonder how the same Chief Justice deemed it fit to suspend Justice Thomas Masuku when he and the Judicial Service Commission (JSC) charged Judge Masuku, yet the same is not done to him! We have long complained about selective justice in Swaziland and the promulgation of the Constitution has not changed this.

Judge Masuku was given a timeline within which to provide a written response to the charges preferred against him. Is this doing justice to all “without fear or favour”? We think not. If the Monarchical (Monarchial) democracy we are said to be is worth anything, we need to see equal treatment of all before and under the law. It seems very clear that members of the JSC and indeed powerful people in our society are above the law. As in the law of the jungle, we are equal but some are more equal than others. Two members of the JSC, by virtue of being in position of power, refuse to subject themselves to the law and legal processes.

First it was the Chief Justice who refused to be subjected to a disciplinary process following the complaints of the Law Society of Swaziland to the JSC. Standing as judge in his own cause, the Chief Justice dismissed the complaints. The complaints of the Law Society have found their way into Lesotho where the Chief Justice is called upon to answer. It is seriously worrying that the very same people who are tasked with the responsibility to guard the independence of the judiciary, and the enforcement and protection of fundamental human rights, are the very ones who frustrate these principles!

There can be no doubt therefore, that the solemn declaration in the oath of office in the Constitution, of doing “right to all manner of people according to the law, without fear or favour, affection or ill will”, has a different meaning and effect to the Chief Justice and the JSC. Richard Calland, an associate Professor at the University of Cape Town, in his book “The Zuma years: South Africa’s changing face of power” writes on the South African JSC: “t[]his leads to the scrutiny of the judges who occupy the bench, and how they are appointed. “The JSC is the most important body in this respect, but the question remains, how influential is it in practice, and within it, which members have the most influence?”

Similar issues arise with regard to the Swaziland’s JSC. Based on what Calland sees as failure on the part of the South African JSC to exercise its functions independently in the appointment of judges he says that: “[t]he Constitutional Court used to be a jewel in South Africa’s new democratic firmament. “Being on that court was regarded as one of the best legal jobs in the world. Now it is hard to get good people to apply to be on it. How very sad.” How very sad that in Swaziland we are in a worse situation than Calland decries in South Africa!!

It is quite ironic that while in Swaziland the Chief Justice issued a Practice Directive preventing and prohibiting legal process against the King or anyone purporting to act under the King’s authority, in his own country he filed legal process in terms of which he is challenging His Majesty King Letsie III over there! In his alternative prayer the Chief Justice as Judge President in Lesotho wants the Court to declare: (3) That His Majesty’s decision to suspend Applicant from the exercise of the functions of the office of the President of Appeal be reviewed and set aside. 4) His Majesty’s decision to appoint a tribunal to enquire Applicant’s removal from office for misbehavior and/or inability to perform the functions of his office be reviewed and set aside and/or be declared null and void.”

Interestingly, the Chief Justice faces a charge of “subverting the independence of the judiciary, by the issuing of Practice Directives in 2011 calculated to frustrate access to justice in proceedings against His Majesty King Mswati III and the Office of the King,” as complained by the Law Society of Swaziland. Hansungule is quoted as having said that: “The man is facing criminal and other charges which impinge on his judicial work, no doubt, and the best protection they can accord him now is to order him to step aside temporarily, if he cannot do that out of his own conscience. It does not matter whether these charges have been brought against him in Lesotho and not in Swaziland.” Of course judges are human beings, men and women. How pertinent! But as is well known, government has come out very clearly in support of the seriously embattled Chief Justice, to the extent of compromising the independence of the judiciary. We are watching the space very closely in Lesotho.

The second member of the JSC to avoid the long arm of the law is lawyer Sibusiso Shongwe. Accused of having defrauded the Swazi nation of hundreds of thousands of Emalangeni “held in trust” by the Swazi Observer; the Registrar of the High Court is said to have refused to receive and issue the summons as required by law, against Shongwe and Alpheus Nxumalo. This is embarrassing to the judiciary to say the least, and damaging its integrity. Ironically, the nation and court users are informed that Shongwe has a defense against the summons.

The last time we knew, the very idea of serving somebody with a summons is so as to allow the party being served with the summons to present his or her defense in court. Simple! Being a legal practitioner himself Shongwe knows this very well, and as to why he does not use the legal remedies available to him, as any other person in his position, is a wonder. But only one reasonable conclusion may be drawn from this: the arm of the law cannot reach the most powerful among us in our society. The effect is the closer you are to the monarch, the more one is immune to legal proceedings. So the Practice Directive by the Chief Justice is alive and effective. The question forever comes to mind if the Constitution and the Bill of Rights are worth the paper they are written on.


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