Swaziland Democracy Campaign
12 August 2011
The Swaziland Democracy Campaign is very pleased to be able to circulate the statement below, and asks all those concerned about the appalling legal manipulation of the Swaziland Regime to protest in the strongest possible terms.
Update on Swaziland Judicial Crisis: CJ a complainant, witness, prosecutor and judge in same matter
On 11 August 2011, the much awaited trial of suspended High Court of Swaziland Judge, Mr Thomas Masuku commenced in clear violation of all the known rules of natural justice. Justice Masuku was served with a letter of suspension and had 12 charges preferred against him by the current Chief Justice (CJ), Michael Ramodibedi in July 2011. August 11 marked the commencement of proceedings in this trial, which has added to the woes currently gripping the judiciary in that country. The High Court resembled a war front as heavily armed state police and anti-riot, para-military police kept guard at every corner, searching every car that entered the premises.
Amongst those present to observe the trial were representatives from the International Commission of Jurists, the SADC Lawyers Association and civic organisations and political parties operating within Swaziland as well as members of the general public.
Many commentators have already labelled the hearing a ‘kangaroo court’, and very likely to further polarise the tenuous relationship between the administrators of the courts and the officers of the courts in Swaziland. It remains a matter for speculation whether the public’s confidence in the Swaziland judiciary, which was already eroded, can survive this judicial tsunami.
The list of charges preferred against Justice Masuku are as follows:
- Failing to deliver judgments on time;
- Defying the CJ’s directive to prepare and submit a monthly schedule of pending judgments;
- Insulting His Majesty the king;
- Touting himself as a chief justice;
- Actively associating with those who want to bring about unlawful change to the regime;
- Destabilising the High Court judges and staff;
- Sending a female employee of the High Court to a workshop in Hong Kong without the approval of the CJ;
- Absenting himself from work;
- Threatening the CJ with resignation when confronted to explain himself last year in March;
- Attacking the CJ at a symposium of the International Commission of Jurists (ICJ) in Lesotho on 29 July 2010 for banning judges from giving interviews to the news media;
- Joining a toyi-toyi (protest march) by CTA staff at the gate of the High Court;
- Engaging in an illicit affair with a judge.
The following are worth noting about the charges and the trial:
- That the CJ acted as a complainant, a witness, a prosecutor and a judge in this matter. This goes against the rules of natural justice, especially the rule that a person cannot be a complainant and a judge in his own case (nemo iudex in causa sua).
- That the defence’s application for the CJ to recuse himself was turned down by the CJ, who said reasons for that decision would follow later.
- That the defence’s application for this matter to be heard in public was also turned down. This raises questions on the credibility of the evidence to be tabled by the CJ against Justice Masuku. Members of the public, family members, fellow lawyers, fellow judges who tried to enter the hearing room were blocked by heavily armed police officers.
- That the outrageous charge initially preferred against Justice Masuku alleging an illicit affair between him and another female judge was withdrawn by the CJ. No reasons were given for the withdrawal. It is worth noting that the female judge had threatened to sue the CJ for the defamatory statements and allegations.
- That the substance of charge 3 is actually drawn from the wording in a High Court judgment drafted by Justice Masuku himself.
- That there is a hint or reasonable likelihood of bias in the tribunal. The Judicial Services Commission (JSC) chaired by the complainant, the CJ had earlier turned down a complaint filed by the Swaziland Law Society against the chief justice. In the complaint, the law society had alleged that the chief justice was not fit for office owing to misconduct, which included sexual misconduct. Although the JSC was not asked to determine the matter, it went ahead and did so. Constitutionally, the JSC did not have the powers to sit as a tribunal and determine the complaints against the CJ, but it did. It was constitutionally enjoined to cause an ad hoc tribunal to be formed which would then look into the matter. Instead the JSC became a tribunal and a defence team for the CJ, dismissing the matter whilst alleging that the law society had ulterior motives. That the same JSC is now considering a matter in which the CJ is a complainant, a witness, a prosecutor and a judge, where he sits a chairperson smacks of nothing less than bias.
- That members of the public, media personnel, representatives of international organisations, relatives, friends, lawyers and fellow judges were barred from entering the hearing room by riot police acting on orders of the CJ.
- That both the leading daily newspapers, The Times (www.times.co.sz) and The Swazi Observer (www.observer.org.sz) reported extensively on the matter and have been following it since it first unfolded. Further that the media has already labelled this sham trial a ‘kangaroo court’.
- That justice, and the independence of the judiciary are the worst affected victims of this crisis.
SWAZI CHIEF JUSTICE MUST GO - SCCCO