The Southern Africa Development Community Lawyers Association (SADC LA) and the Southern Africa Litigation Centre (SALC) note the unprecedented action on the part of Swaziland lawyers who, on Wednesday 21 September, marched in large numbers through the streets of the capital, Mbabane, to protest Swaziland’s ongoing judicial crisis and the role of the Chief Justice in instigating this crisis.
SADC LA and SALC note that it is a measure of the escalation of the crisis and the obdurate refusal on the part of Swaziland’s authorities to constructively engage that Swaziland’s lawyers – already boycotting the country’s courts – have felt compelled to take to the streets in their lawyers’ gowns in a bid to highlight just how critical the situation has become.
The march follows an instruction by the Chief Justice to the magistrate courts to proceed with criminal cases despite the lawyers’ boycott which has resulted in the convictions of unrepresented accused. Not only is this unlawful and unconstitutional, but the order, in its punishment of innocent parties to the judicial impasse, demonstrates a vindictiveness at odds with the most basic tenets of fairness and justice that the office of the Chief Justice is enjoined to uphold.
The lawyers’ boycott was adopted in response to the improper refusal on the part of the Judicial Service Commission to receive the Law Society’s complaint against the Chief Justice. Several of the charges of misconduct relate to directives issued by the Chief Justice. One of the directives requires that no case may be allocated to a High Court judge for hearing unless the Chief Justice has determined such allocation. This has proved not only practically unworkable but has also allowed for the perception of bad faith in case allocation. The most controversial of the directives determined that no summons may be issued against the King’s office, flying in the face of long-established precedent and leaving several parties, including those who have engaged in commercial transactions with the King’s office, without remedy.
The Chief Justice, Michael Ramodibedi, has also attracted controversy in charging Judge Thomas Masuku of the High Court with judicial misconduct and suspending him. The initial twelve charges put to Judge Masuku were so vague and unsubstantiated as to create the impression that they were spurious. As it transpired, several of the charges were abandoned at the disciplinary hearing. The disciplinary hearing itself was not conducted in compliance with fundamental principles of justice and fairness. The Chief Justice refused to recuse himself, notwithstanding the fact that he acted both as accuser and judge; the application for the hearing to be held in public was denied and the opportunity to cross-examine deponents to the affidavits attesting to Judge Masuku’s alleged misconduct was also refused. No reasons were provided for these decisions. At the present date, more than a month after the hearing was concluded, reasons for these decisions are still to be communicated to Judge Masuku and the outcome of the hearing has not been made public.
The current situation is unsustainable and invites no confidence in Swaziland’s judicial system. Swaziland’s lawyers have resorted to desperate measures in order to prompt Swaziland’s authorities to action. The ICJ, SADC LA and SALC support their call, urging the highest officials within the executive and the judiciary to expeditiously respond to the concerns raised by the Law Society. Further they call on all parties concerned for the rule of law in Swaziland to demonstrate solidarity with Swaziland’s Law Society.
The Southern Africa Development Community Lawyers Association
The Southern African Litigation Centre
Makanatsa Makonese +27 (0)72 571 4247/ firstname.lastname@example.org
Nicole Fritz + 27 (0)82 600 1028 / email@example.com