Mbabane – The Africa Judges and Jurists Forum (AJJF) have challenged Eswatini’s authority, legal profession, the judiciary and the policy community to reflect and take the necessary measures on the removal of Judge Thomas Masuku from the bench.
In its findings, the African Commission on Human and People’s Rights asserted that the law was breached in Masuku’s matter, quashing the case of the impeachment and removal from the judicial bench of Justice Thomas Masuku in Eswatini.
The African Commission’s decision on the matter was also welcomed by the Africa Judges and Jurists Forum (AJJF) and the Advancing Rights in Southern Africa (ARISA) program, a partnership between the American Bar Association, Freedom House, Pact and Internews.
On 27 September 2011, Justice Thomas Masuku was removed from the bench by His Majesty, the King of Eswatini (then Swaziland) following an enquiry on his impeachment that was instituted by former Chief Justice, the late Michael Ramodibedi as Chairperson of the Judicial Services Commission.
Justice Masuku was highly aggrieved by the decision which he felt was wrongful and unlawful and breached the laws of Eswatini as well as the rights accruing to him by virtue of Eswatini being a signatory to various international human rights law instruments binding on Eswatini, including the African Charter on Human and People’s Rights.
AJJF Secretary General Martin Okumu-Masiga said the issues raised in the decision of the African Commission are so important to the question of judicial reforms in Eswatini.
“I hope that the authorities, the legal profession, the judiciary and policy community will deeply reflect on the decision and take necessary measures to strengthen judicial independence, separation of powers and the rule of law that are so needed at this particular historical moment in Eswatini” he said through a statement that was issued early in the month.
In Justice Masuku’s case before the African Commission filed on his behalf by Lawyers for Human Rights Swaziland, he argued that the hearing against him and subsequent dismissal from the Eswatini judiciary had breached his rights and violated Articles 1, 7, and 26 of the African Charter.
Article 7 of the African Charter states that “every individual shall have the right to have his cause heard” including “the right to an appeal to competent national organs against acts of violating his [her]fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force, the right to be presumed innocent until proved guilty by a competent court or tribunal, the right to defense, including the right to be defended by counsel of his [her] choice and the right to be tried within a reasonable time by an impartial court or tribunal.”
Article 26 of the African Charter imposes a duty on Eswatini to “guarantee the independence of the Courts and establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.” Article 1 of the African Charter imposes a duty on Eswatini to “adopt legislative or other measures to give effect to” the rights provided for in it.
Happily for Justice Masuku and profoundly sad for Eswatini, the African Commission agreed with him and found Eswatini to have violated the said provisions of the African Charter that seek to protect the fundamental human rights to fair trial and the independence of the judiciary.
“It is important for effective access to justice that the independence of the judiciary is fulfilled, protected and respected. Independence of the judiciary is for the benefit of the public and not the individual judge. Independence of the judiciary has to be both institutional and individual in order to guarantee separation of powers, necessary for protection of human rights and the rule of law” argued Dr Makanatsa Makonese the Deputy Chief of Party at ARISA.
“Sadly, in Justice Masuku’s case, these important principles and values were breached in Eswatini. The AJJF and ARISA hope that the decision of the African Commission will lead to some national introspection and result in administrative and policy measures being taken for appropriate judicial reforms in order to strengthen access to justice and the rule of law in Eswatini” added Dr. Makonese.
On the issue of whether Justice Masuku had a local (Eswatini based) remedy for his case which would disentitle him to go for remedies to the regional protection mechanism, the African Commission said the local remedy that Courts in Eswatini offer needs to be available, effective and sufficient. The local remedy must exist in law and be accessible in practice.
The African Commission came to the conclusion that in Justice Masuku’s case, domestic remedies were unavailable or ineffective owing to lack of independence and impartiality of the judiciary in Eswatini. The African Commission cited a decision in Communication 251/2002 (Lawyers for Human Rights versus Eswatini) where the Commission ruled that the context in which the judiciary in Swaziland (Eswatini) operates rendered it even as early as 2002 incapable of rendering independent and impartial justice in some cases such as this one. In Justice Masuku’s case, the big complication was the negative central role that the Chief Justice as head of the judiciary played in being the complainant, prosecutor and judge in the case.
The process not only breached the primary rules of natural justice that one cannot be a judge in their own case but made it virtually impossible for an aggrieved person in Justice Masuku’s case to seek justice in the compromised judiciary led by the Chief Justice who was his nemesis at the time. The African Commission also frowned at the directive issued by the then Chief Justice on 18 January 2010 to stop judges from exercising freedom of association and expression.
The issue of the Chief Justice implementing an opaque policy and system of allocation of cases to achieve potentially preconceived outcomes in order to protect narrow interests was also brought under scrutiny in Justice Masuku’s case before the African Commission, citing the case of the Law Society of Swaziland versus The Speaker of the House of Assembly and Another of 2012. Threats to decisional and individual independence of the judges were also ventilated by the African Commission.
The practice by the Chief Justice of directing who should write a judgment in a case was frowned upon. Also, the act of bringing out charges against a judge citing language used in a judgment as happened in Justice Masuku’s case were specifically criticised as a threat to judicial independence in this case before the African Commission. Language used in a judgment cannot be viewed as serious misbehaviour warranting removal from the bench, ruled the African Commission.
Attorney General Sifiso Mashampu Khumalo was quoted by a local publication saying Eswatini will review the findings of the African Commission which recommended that the state should compensate Masuku for unfair dismissal.