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Thursday, 11 August 2011

JUDGE’S HEARING BODES ILL

Business Day, South Africa

11 August 2011

SOURCE

NICOLE FRITZ: Judge’s hearing bodes ill for Swazi reform

IF SWAZILAND was going to make even a token gesture at meeting the less than taxing conditions attached to SA’s recent loan, and if SA was even halfway serious about insisting that those conditions are met, this week’s disciplinary hearing of Swaziland High Court Judge Thomas Masuku would discreetly disappear.

Today, (11 August 2011) Masuku is to appear before the Swaziland Judicial Services Commission (JSC), accused by the chief justice of a host of farcical charges, including that he insulted Swaziland’s King Mswati, that he has associated with those who seek unlawful regime change in Swaziland and that he has destabilised the high court’s judges and staff.

Small beer, the general reader might conclude, when weighed against Swaziland’s 40% unemployment rate, two- thirds of its population mired in poverty, the absence of free and fair political activity. Except, here’s why it isn’t: Swaziland’s chief justice is a very recent appointee. One of his first acts in office, underlying that his fealty lay with the king and not the rule of law, was to issue a directive declaring that the king could not be the subject of any legal suit, directly or indirectly. In quick succession, further demonstrating that he views his office as an extension of the monarch’s realm and not as the apex of a separate branch of government intended to check executive abuse, he charged Masuku and then suspended him.

The charge of insulting the king stems from a judgment Masuku wrote in which he ostensibly applied the term "forked tongue" to Swaziland’s sovereign. Read properly, it is quite apparent that the judgment contains no insult to the king. Still, it is hard to imagine any executive, except of the overweening, emperor-without-clothes variety, being unduly stung by such an appellation.

Chief Justice Michael Ramodibedi used the occasion of the appeal judgment to pander to the king, pronouncing that such "inappropriate language does not belong to the king’s own loyal subjects" and that he was "horrified".

But this was not genuflection enough: Masuku’s alleged application of the term also warranted the institution of disciplinary proceedings, even though the actions of the chief justice quite clearly constituted interference with a judicial function — the writing of judgments — and so with the principle of judicial independence. Now, Masuku’s supposed misbehaviour is to be judged by the JSC , headed by the chief justice, his principal accuser. Every other member of the JSC has been directly appointed by the king.

The Law Society of Swaziland, attempting valiantly to preserve some semblance of the rule of law against the assaults of the chief justice, has submitted its own complaints against the chief justice to the JSC. Among the accusations is abuse of state resources and sexual harassment. But many Swazis would know none of this information because the JSC rushed to court to obtain an interdict preventing the media from publishing any details. Copies of the Sowetan, which carried the allegations, were seized at Swaziland’s border.

Late last week, Swazi police armed with shotguns and tear-gas canisters stormed a gathering of lawyers meeting in the high court to discuss their complaints against the chief justice.

Enraged lawyers refused to move, one of them commenting that the spectacle of police violence might at least alert the world to the fact that the "country’s justice system has crashed".

All justification for SA’s loan to Swaziland has been in terms of not allowing its economy to crash.

The danger, however, is that the loan merely props up Africa’s last absolute monarch, and his henchmen such as the chief justice, intent on obliterating any vestige of independent checks on abuse by the executive.

In May, Swaziland’s budget deficit was about 14,3% of gross domestic product — on a par with Greece.

It is hard to imagine any responsible lender contemplating a bail-out for Greece had it simultaneously been laying siege to its independent judiciary.

The prospect of proper reform, not to mention responsible debt servicing, without credible institutions of domestic governance, would appear negligible.

Yet SA lends to Swaziland. S A stipulates it is for confidence-building measures. But through today’s hearing, Mswati , Africa’s last absolute monarch, and his entourage will be showing only their contempt.

• Fritz is the director of the Southern Africa Litigation Centre.

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