Haraka Haraka Haina Baraka, Supreme Court!

Besides the terrible reasoning in many of the Supreme Court of Swaziland judgments from its last session (May 2010) and the fact that government was successful in all its cases, one of the most surprising elements was the amazing speed at which the court heard, decided and PUBLISHED its cases.  The session ran for about four weeks and heard around about 20 cases.  The Supreme Court released its judgments on the final day, May 28.  Any self-respecting lawyer would know that such a quick turnaround of judgments is simply not possible.  And the quality of the judgments attests to this fact.

Now as if more proof were needed, it has emerged that while one critical judgments was actually decided one way, the order went the other (HERE).  That is, the court reasoned the judgment in favour of the applicant, but actually made the order in favour of the defendant!  To add specific injury to generalized insult, the mistake cost the applicant a cool E5 million (about US$800,000)! Add lawyers fees on that and you’re looking at some serious damage. 

These judges not only ought to be shamed but seriously should be brought to book for wasting taxpayers money.  I don’t know whether there is some sort of international crime for which they could be charged?  I’m not joking – their cavalier attitude to their duties is not some sort of excusable mishap, it’s an endemic, institutionalized plunder of a poor country. 

Let me put this in perspective:  these judges are extraordinarily (unbelievably) well paid and looked after – they are not Swazis but are employed by the state from overseas.  They are catered for deliciously from the time they are jetted in until they jet out again back to their homelands.  To think that they would be able to write 20 judgments in so few days demonstrates a breathtaking contempt for their task and for the people they have been paid to serve.

If anyone knows how such a prosecution could be undertaken, please let me know.

In the meantime, short of that, I will name these conceited clowns:

(1)    Chief Justice Michael Ramodibedi (Lesotho) – who has, according to the word in chambers, been doing a terrible job (for an article related to which, click HERE) trying to run the courts from out of the country.  The judiciary is fracturing over his lack of leadership (HERE) although he has just been given the thumbs up by government (HERE).

(2)    Judge Dr Seth Twum (Ghana)

(3)    Judge Ian Farlam (South Africa)

If you know them, please tell them you are ashamed of what they are doing.

But what can be done to stop this sort of practice?  Well using judges from overseas on the Supreme Court must cease forthwith.  The Constitution actually requires that  this happen in 2012 (at s 157(1)).  This should be a great help.  There are plenty of talented Swazi lawyers and it is likely they will take more care.  Overseas judges such as those from the Commonwealth should only be used to get rid of the backlog – and should only be working at the High Court level. 

As for what can be done in this specific case, I am not sure.  The Constitution specifically prohibits parliament from overturning the judgment of a court (at s 119(1)(a)).  But it is not clear whether the parliament could, say, tax the earnings of one party and somehow pay a grant out to the other.  That is an interesting constitutional question.  But since parliament suffers serious burdens of inertia, all this would have to be left with the Attorney-General and he has enough on his plate (HERE).  

Some Reasons Swazis Don't Use the Courts

At the recent 'First Biennial Conference on the Curriculum' held by the National Curriculum Council, I gave a paper on the Free Education Case (HERE).  The case, and the challenge of government in the formal (colonial) courts, has made Swazis uncomfortable.

So I asked the participants, about 100 Swazis from different walks of life, why they didn't like taking questions of law or policy to court.  (Swazis tend not to mind taking contract/commercial disputes to the courts, but are more than reticent about social/policy questions.)  The answers were illustrative.

There were four main reasons, being:

1) Cost of attorneys

2) Poor judgments / bad rulings - many of the decisions of the courts in Swaziland have been conservative or questionable.

3) Government ignores the rulings - this has happened earlier this decade, as well as in the Free Education Case itself.

4) Illegitimacy - the courts are colonial institutions and not to use the traditional dispute resolution mechanisms is to "betray the system" (in their words).

These reasons flow into each other in confusing ways.  For example, the illegitimacy issue adds to the cost, as attorneys have to clamber over each other for the fewer cases that come to the formal system (lawyers are strictly banned from the traditional courts).  Likewise, there is no doubt that some of the poor judgments have arisen directly because of the fear that government would ignore the ruling and further undermine the rule of law.

So what is to be done?

I'm not sure.  I think it would be really helpful if the attorneys were all less greedy here, but some are on the breadline, so how can you say that?

I think also that the dualist system has to be abolished. But how do you do that in this day and age? What would the international community say if tomorrow it was announced that the Magistrate, High and Supreme Courts were all abolished?

It wouldn't be pretty but it might be for the best.

A Prohibited Immigrant

David Soggot, a famous human rights lawyer from South Africa, has passed on. You can read his obit HERE.

He was the lawyer who won the case regarding the status of the National Ngwane Liberation Congress back in 1973.  The case lead to the King's Proclamation and the suspension of the Independence Constitution, including the 1968 Bill of Rights. He was also declared a 'prohibited immigrant' by King Sobhuza for his troubles.

As I pore over the case law that has just been produced in the latest Supreme Court rulings, I cannot help but ask myself: does a lawyer who pursues a just but ultimately failed cause, share in any of the blame that must accompany the poor law coming out of the judgment?  And by extension then, can David share any blame for the suspension of the Independence Constitution in Swaziland?  Or is that just woolly-headed?