AN ALL-BLACK "PERMANENT" SUPREME COURT

Chief Justice Ramodibedi has noted that the "permant" bench of the highest court in Swaziland is all-black for the first time in its history (see article HERE).  This is truly an historic moment.

In using the word "permanent", it is supposed he was comparing this bench with the "rotational" justices provided mostly by the Commonwealth who fly into the country on short contracts to deal with case backlogs. But it  happened to remind everyone that there is little security of tenure for judges in Swaziland.  "Security of tenure" is the term used to describe the protections a judge has from being fired out of political motivations.  So, for example, judges with security of tenure would be more likely to act without fear or favour in a case involving a pension fund with large landholdings and deep ties to the ruling elite.

Sections 155, 156 and 158 of the 2005 Constitution seemingly guarantee that once a judge is appointed as a "substantive" office holder, s/he will hold that position until the age of 75 years, or until s/he retires, or until s/he is removed from office for "serious misbehaviour" or "inability to perform the functions of office arising from infirmity of body or mind."  The reality is somewhat different.  As far as I can tell, all the judges of the superior courts are on fixed contracts for a specified term.  Worse, the majority are officially only "acting" judges, whose terms are for less than six months.

This is a far cry from the sort of "permanence" laid out in the 2005 Constitution.  Without security of tenure, the judiciary in Swaziland is unlikely to be as independent as it should be.

SUMMARY OF SWAZILAND UPR

The International Service for Human Rights (ISHR) in Geneva has produced a summary of Swaziland's universal periodic review (UPR).

It notes that Swaziland claimed it was considering ratifying the Optional Protocol on the Convention Against Torture (HERE).  

Key recommendations out of Swaziland's UPR include:

• Take immediate measures to ensure the independence of the judiciary.
• Ease legislative requirements regarding the registration of independent media.
• Allow for the registration and operation of political parties and ensure free, transparent, and regular elections.

The full summary can be read HERE.

For further information about removing the ban on political parties, see my blog HERE.

Farewell Mabel, and ‘Allo ‘Allo ‘Allo

There is simply no denying the personal nature of the courts and the way personality plays itself out in law and judgments.  And Swaziland has just lost one of the strongest characters on its judiciary:  Ms Mabel Agyemang (HERE).  Agyemang J ruled against the government in the Free Education Case (HERE) and had the reasoning of her judgment quite rudely overturned by Maphalala J in a later hearing of a different question in the same case.  (Maphalala J should not have overturned her reasoning, as Swazi courts are supposed to recognize precedent, and he was a fellow High Court member, not a judge superior to Agyemang J.)  Whether it was this slight that has her packing her bags, or whether there is some other reason she is going, I have no idea.  I do know she left by giving the Swazi government a solid kick in the pants:  awarding E470,000 (about US$70,000) to a civil servant for a wrongful arrest.

In her place, the King has appointed one acting justice and two judges:

(1)    Justice Phillip Levinsohn – Deputy Judge President of the High Court of Kwa-Zulu Natal.  A senior judge with extensive corruption experience, including on the corruption investigation of (now President) Jacob Zuma (see the end of a newspaper article, HERE).  Levinsohn has apparently been brought in specifically to oversee some of the corruption cases, including against Mr Qhawe Mamba, a cousin to the King.  He has been brought in on an acting basis, until 11 January 2011 (!), so he better get cracking if he wants to achieve anything.

(2)    Justice Esther Ota – Nigerian-born Sey has cut her teeth in The Gambia, rising up from a Magistrate to be a justice of the Appeals Court (download what could be an autobiographical (!) PDF, HERE).  She is one of the Commonwealth judges, that group who work on a circuit, funded by the Commonwealth to get rid of the backlog in needy countries. 

(3)    Justice Mary Sey – hailing from Sierra Leone, Sey has made a name for herself as a fearless fighter of corruption (see some google results HERE).  She is also here for two years with the Commonwealth, scheduled to finish her term (with Ota) in two years which, in Swaziland, is relatively secure tenure (HERE).

It will be interesting to see whether they follow Agyemang’s fearless path, or adopt the stance of the Supreme Court and ensure they are kept on by government on a pay that is simply unjustifiable. 

Congratulations AG! And...(Acting) CJ...Sort Of...

As of 1 August 2010, the Attorney-General of Swaziland will be appointed for another 5 years.  Although only an ex officio member of Cabinet, the AG is in my estimation the most powerful man in parliament.  How?  He controls the legislative process.  The AGs office is responsible for preparing bills.  As there are no political parties allowed in the Swazi parliament, he is the sole source of legislation.  Nor does Cabinet exercise control:  if there is legislation he doesn’t like, the AG will make sure it is buried in the morass of draft bills and policies floating around the office.  Legislation he agrees with will receive favourable treatment.  That the AG is the most powerful man in parliament under the 2005 Constitution is no accident – he drafted it.  So, congratulations.  By the time he finishes his term in 2015, the current AG will have been in office for a decade.

The Acting Chief Justice was not so fortunate.  He has had his probationary term extended for a little over 4 months (7 October 2009 – 25 February 2010).  You see when the AG was drafting the sections on the judiciary, he forgot to include security of tenure for the senior judges.  Big problem.