Communication 444/13: Justice Thomas S. Masuku v. The Kingdom of Swaziland
SUMMARY OF THE COMMUNICATION
1. The Communication was received at the Secretariat of the African Commission on
Human and Peoples' Rights on 11 April 2013. It is submitted by Justice Thomas S.
Masuku (the Victim), who is represented by Lawyers for Human Rights - Swaziland
(the Complainant).
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2. The Communication is submitted against the Kingdom of Swaziland (the Respondent
State), now officially the Kingdom of Eswatini, a State Party to the African Charter on
Human and Peoples' Rights (the Charter), which it ratified on 15 September 1995.
3. The Complainant states that the Victim was appointed as Judge of the High Court of
Swaziland with effect from 01 July 1999.
4. The Complainant avers that in 2003 the Victim was demoted to the Industrial
Relations Court of Swaziland, which is inferior to the High Court. The Complainant
further avers that, given the glaringly unlawful demotion which violated the Victim's
security of tenure as Judge which is protected under Section 3 of the High Court Act,
the Victim challenged it before the High Court. However the judges of the High Court
recused themselves from hearing the application on the ground that the Judges were
members of the same court and the Judges were very close to each other. In the recusal
ruling the court recommended that an ad hoc judge be promptly appointed to hear
and determine the application.
5. The Complainant submits that eight months later the Victim was reinstated as Judge
of the High Court. Shortly after his reinstatement, however, he was appointed as
Judge of the High Court of the Republic of Botswana for four years.
6. Upon ret rn from serving as Judge of the High Court in Botswana, the Victim
resumed his duties as Judge of the High Court and occasionally also sat in the
Supreme Court in an acting capacity.
7. On 28 June 2011, the Chief Justice Michael M. Ramodibedi, acting in his capacity as
the Chairperson of the Judicial Service Commission (JSC), laid charges against the
Victim and called him to show cause why he should not be removed as Judge of the
High Cou t. The Victim was invited to make representations on why he should not be
removed from office for alleged serious acts of misbehaviour, and was invited to
attend an oral hearing and make oral representation before the JSC on 11 August 2011.
In total, twelve charges were levelled against the Victim; however Charge number 12
was subsequently withdrawn:
Failing to deliver judgments on time e.g. R v. Vusumuzi Dlaminu, Case No
375/09.
(ii)
Defying the Chief Justice's directive to prepare and submit a monthly schedule
of pending judgments.
(iii)
Insulting His Majesty the King by using the words "forked tongue" with
reference to him.
(iv) By touting yourself to be appointed Chief Justice, especially amongst the chiefs,
(v)
Actively associating with those who want to bring about unlawful change to
the regime.
(vi)
Destabilising the High Court Judges and staff.
(vii) By sending one Gugu Vilakati, a High Court staff member, to a workshop in
Hong Kong without the Chief Justice's approval, purportedly in your capacity
as Chairman of a law reporting board under the Chief Justice.
(viii) By absenting yourself from work without the Chief Justice's permission
particularly on 30 March 2010.
(ix)
By threatening the Chief Justice with resignation when you were confronted
with your absenteeism from work without leave on 30 March 2010.
(x)
By attacking the Chief Justice at a symposium of the International Commission
of Jurists (ICJ) held in Lesotho on 29 July 2010 for banning Judges from giving
interviews to the news media, thus demonstrating both insubordination and
disloyalty to the Chief Justice.
(xi)
By joining a toyi toyi by CTA staff at the gate of the High Court on 17 June 2011.
This was a protest to show dissatisfaction against the fact that the Judge
President of the Industrial Court cannot finalize the CTA case due to his
suspension.1
(i)
8. By Legal Notice No.88 of 2011 issued on 28 June 2011, the Victim was suspended
pending an inquiry into the question of his removal from office, with effect from 01
July 2011.
9. The Complainant submits that on 25 July 2011 the Victim's legal representative filed
his defence with the JSC, denying all the charges, and on 04 August 2011 filed
preliminary objections. The preliminary objections submitted the following: that the
Chief Justice ought to recuse himself from the proceedings in the matter; that the
procedure by which the JSC's inquiry in the matter had been initiated and convened,
1 Complainant submissions, Annex No.LHR9, Letter from the Judicial Service Commission to Justice Masuky^^
June 2011
was fatally flawed; and that the JSC inquiry in the matter must allow for a public
hearing.
10. The Complainant submits that, on 11 August 2011, the JSC convened for the
disciplinary hearing, where the Victim's preliminary objections were rejected.
Further, after the hearing concluded the JSC came to its conclusion and recommended
to His Majesty that the Victim should be removed from office. On 27 September 2011,
the King, as he is constitutionally bound, removed Justice Masuku as a High Court
Judge.
Articles alleged to have been violated
11. The Complainant alleges that Articles 1, 7 and 26 of the African Charter on Human
and Peoples' Rights (the African Charter) have been violated.
Prayers
12. The Complainant requests the Commission to:
(a) find that the hearing and subsequent dismissal and removal of Justice Thomas
Masuku as a judge of the High Court violated Articles 1, 7, and 26 of the African
Charter, as read with the Constitution (2005);
(b) order the Respondent State to reinstate Justice Thomas Masuku to the High Court
(c) that Justice Masuku is compensated for the loss he suffered as a result of the unlawful
removal.
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Procedure
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13. The Communication was received at the Secretariat on 11 April 2013, and the
Secretariat acknowledged receipt on 10 June 2013.
14. The Commission decided to be seized of the Communication during its 14th ExtraOrdinary Session, held from 20 to 24 July 2013, in Nairobi, Kenya.
15. On 28 July 2013, the Commission's decision was transmitted to the Complainant with
a request to the latter to file written arguments and evidence on the admissibility of
the Comr unication within two months, in terms of Rule 105(1) of the Rules of
Procedure. On the same date, the Secretariat also notified the Respondent State about
the Communication, and transmitted the Commission's decision on seizure together
with a copy of the Complaint to the Respondent State.
16. Before the expiry of the two months period, the Complainant submitted written—...
arguments and evidence on admissibility.
17. The Secretariat transmitted a copy of the Complainant's submissions on Admissibility
to the Respondent State on 06 September 2013, requesting the State to present its
written submissions on Admissibility within two months, in terms of Rule 105(2) of
the Rules of Procedure. The Respondent State was further notified that the
Commission would take a decision on the available information if the former did not
present its written submissions within the prescribed time.
18. During the holding of the 16th Extra-Ordinary Session, from 20 to 29 July 2014, Kigali,
Rwanda, the Commission noted that the Complainant had not made any submission
on the admissibility requirement stipulated at Article 56(6) of the Charter. By a letter
dated 16 July 2014, the Complainant was requested to provide an explanation in light
of Article 56(6) of the Charter. The Complainant provided the requested explanation
by letter received by the Secretariat on 22 July 2014 during the holding of the 16th
Extraordinary Session.
19. The Commission declared the Communication admissible during the 16th ExtraOrdinary Session.
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20. The Commission's decision was notified to both the Complainant and the Respondent
State, by letter and Note Verbale dated 08 August 2014. Alternatively, the Commission
requested the Complainant to confirm if the submissions on the merits contained in
the initial Complaint would stand as his submissions on the merits.
21. At the time the Commission held its 17th Extra-Ordinary Session in February 2015, the
Complainant had neither submitted the merits submissions, nor confirmed that the
submissions in the Complaint shall stand as the merit submissions. Accordingly, the
Communication was struck out for want of diligent prosecution during the 17th ExtraOrdinary Session.
22. The decision striking out the Communication was transmitted to the Complainant by
letter dated 02 March 2015, and to the Respondent State by Note Verbale dated 04
March 2015.
23. By letter dated 12 April 2015 from Professor Michelo Hansungule, who had been
retained to represent the Victim in the Communication, the Victim submitted an
application for the Communication to be re-listed. The application for re-listing was
transmitted to the Respondent State on 25 April 2015; however the State did not
present any observations on the application.
24. During the 18th Extra-Ordinary Session, held in August 2015, the Commission re
listed the Communication for consideration on the merits.
25. The decision to re-list the Communication was transmitted to the parties on 14 August
2015. The Complainant's initial Complaint, which contains the Complainant's
submissions, were re-transmitted to the Respondent State with a request to the latter
to submit its observations on the merits.
26. On 30 October 2015 the Respondent State transmitted a letter to the Secretariat,
confirming receipt of the Commission's correspondence of 04 March 2015, however
indicated that the State had not received the annexed decision. On 10 November 2015,
the Secretariat transmitted a Note Verbale to the State, transmitting proof of delivery
of the documents by email and DHL. On 02 December 2015, the Respondent State
transmitted a letter to the Secretariat, once again reiterating that it did not receive the
submissions of the Communication.
27. In response, on 09 December 2015 the Secretariat transmitted a Note Verbale to the
Respondent State which provided information on proof of delivery by email and
courier, in addition to transmitting the Complainant's merits submission and
requesting the Respondent State's submissions on the merits within thirty (30) days
from the date of notification. Additionally, during the Commission's Promotion
Mission, the Secretariat transmitted a hard copy of the Complainant's submissions on
the Merits on 08 August 2016.
28. On 13 December 2017, the Respondent State transmitted submissions on the Merits,
which we"? transmitted to the Complainant.
29. Informational letters were transmitted to the Parties from the 62nd to the 68th Ordinary
Session.
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ADMISSIBILITY
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The Complainant's Submissions
30. In the written submissions the Complainant initially addressed one admissibility
requirement only: the exhaustion of local remedies as stipulated at Article 56(5) of the
Charter. As noted above, the Complainant provided an explanation relating to Article
56(6) of the Charter in response to a request by the Commission.
31. In respect of Article 56(5) of the Charter, the Complainant argues that there are no
remedies a Swaziland to redress the Victim's removal as Judge of the High Court,
and advances several reasons to make out that proposition.
32. Firstly, the Complainant contends that the judiciary to which the Victim would have
to lodge an application to review and set aside his dismissal is highly perceived as,
and is in fact, not independent. The Complainant submits that perception is a
significant factor in determining the independence of a judiciary, citing in support
thereof, among others, the cases of Van Rooyen v. S (General Council of the Bar of
South Africa Intervening) 2002(5) SA 246 (CC) para. 32 and South African Personal
Injury Lawyers v. Heath 2001 SA 883 (CC) paras. 25-5 (sic), decided by the
Constitutional Court of South Africa.
33. The Complainant avers that the situation regarding the independence of the judiciary
in Swaziland has kept worsening despite the promulgation of a new Constitution in
2005. As indicators, the Complainant states that 'in the recent past' the Government
has recorded 100% success in matters where it is a party, particularly in the Supreme
Court. Further, the Government through the Prime Minister has openly declared its
support for the Chief Justice in the latter's stance and manner of heading the judiciary.
34. To buttress the point regarding the alleged lack of independence of the Respondent
State's judiciary, the Complainant cites Communication 251/2002: Lawyers for
Human F'ghts v. Swaziland in which the Commission stated and held that: "[it]
believes that taking into consideration the general context within which the judiciary
m Swaziland is operating and the challenges that they have been faced with,
especially in the recent past, any remedies that could have been utilised with respect
to the present communication would have likely been temporary. In other words, the
African Commission is of the view that the likelihood of the complainant succeeding
in obtaining a remedy that would redress the situation complained of in this matter is
so minimal as to render it unavailable and therefore ineffective. For the reasons stated
herein above, the African Commission declares this communication admissible."2
35. Secondly, the Complainant argues that domestic courts are likely to be partial and
biased towards or be influenced by the Chief Justice. The Complainant states that any
application the Victim would have to lodge before domestic courts, challenging his
dismissal, would necessarily have to include the Chief Justice as respondent, or in any
event the matters arising from his interaction with the Chief Justice and the measures
taken by t ie latter against him that would be challenged.
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36. The Complainant claims that the Chief Justice has demonstrated that he wants judges
of the High Court to abide by his directives. For example, in his address on the
occasion of the opening of the High Court on 18 January 2010, the Chief Justice
ordered judges to stop expressing themselves to the media and associating with some
people.
37. Further, the Complainant states that the Chief Justice has issued a directive on
allocation of cases which gives him the capacity to direct and influence the allocation
of matters to specific judges to secure outcomes that favour particular interests. In the
same vein, when a case has to be heard before a panel of judges, the Chief Justice also
directs which judge should preside and which judge should write the judgment of the
court, as it happened in the case of Law Society of Swaziland v. The Speaker of the
House of Assembly and Another Case No. 1145/12 High Court of Swaziland. When
empanelling the court for that case, the Chief Justice directed a specific judge to
2 Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR para. 27
preside during the hearing and another particular judge to write the majority or
unanimous judgment of the court
38. The Complainant contends that the practice of choosing the presiding judge and the
judge who drafts the judgment interferes with the decisional independence of the
judges, and creates the perception that he gives specific instructions on the conduct
and outcome of the case to the judges that he prefers for those specific roles.
39. Furthermore, the Complainant contends that it is inconceivable that judges of the
High Court would possibly make a finding against the Chief Justice who is the head
of the judiciary.
40. From the above, the Complainant surmises that there is a veritable likelihood that the
Chief Justice will influence the outcome on any application lodged with the domestic
courts challenging his dismissal.
41. Thirdly, the Complainant avers that local remedies are not available because judges
who would hear his application against the dismissal will be apprehensive to make a
finding against the King who ultimately dismissed him. He contends that the judges
would be apprehensive of the repercussions of sitting to hear and decide a matter
possibly against the King's decision, a task that partly earned the Victim the charges
which led to his dismissal.
42. Fourthly, and more importantly, the Complainant maintains that local remedies are
not available because the Chief Justice has, suo motu, and administratively issued a
Practice Directive to the effect that legal suits against His Majesty the King, or any
person acting for and on his behalf, should not be accepted by the Registrar of the
High Court or any court staff, purportedly pursuant to Section 11 of the Respondent
State's Constitution. The Complainant further states that attempts by the Law Society
of Swaziland to have the Practice Directive reviewed administratively have not been
successful. Such attempts included the lawyers' boycott of court attendance that
lasted four months.
43. Fifthly, th ' Complainant states that in terms of the existing domestic case law, courts
are indisposed to hear and determine matters in which one of the parties is a fellow
judicial officer. The Complainant cites two previous cases which articulate the
position of courts in such matters: the case of Law Society of Swaziland v. The
Swaziland Government and Two Others, Civil Case No. 743/2003 (as yet unreported)
decided by the High Court; and the case of Minister of Justice and Constitutional
Affairs v. Stanley Wilfred Sapire, Civil Appeal Case No 49/2001 (as yet unreported)
decided by the Court of Appeal.
44. In the former case, the Law Society of Swaziland lodged an urgent applicant before
the High Court challenging the variation of terms and conditions of appointment of
the Complainant from the High Court to the Industrial Relations Court. The High
Court judge before whom the urgent application came for hearing and determination
recused himself on the grounds that the High Court being a small institution, judges
interact and have proximate relations with each other, that they cannot be or be
perceived to be impartial in hearing and determining cases in which a fellow judge is
a party. The Court in that case recommended the appointment of a judge from outside
the jurisdiction in accordance with Swazi law.
45. The latter case of Sapire, was an application by the then Chief Justice Stanley Wilfred
Sapire before the High Court seeking an order determining the age and date of his
retirement. On appeal against the refusal by the three High Court Judges to recuse
themselves, the Court of Appeal ordered the High Court Judges to recuse themselves
on the basis of proximate relations between the judges and the Chief Justice who was
the applicant.
46. The Complainant contends that in terms of the doctrine of stare decisis, there is a great
likelihood that the High Court before which he would lodge any application
challenging his dismissal would decline to hear and determine the matter pursuant
to the existing case law.
47. The Complainant invokes the established jurisprudence of the Commission that the
local remedies that ought to be exhausted as required under Article 56(5) of the
Charter must be: (a) available in the sense of a complainant pursuing them without
impediment; (b) effective in the sense of offering a prospect of success; and (c)
sufficient in the sense of being capable of redressing the complaint.3 The Complainant
concludes by submitting that no remedies fitting these criteria are presently available
within the Respondent State's legal system.
48. Accordingly, the Complainant prays that the Commission should declare this
Communication admissible.
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The Commission's Analysis on Admissibility
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49. As stated above the Respondent State has not presented its submissions on
Admissibility, despite the opportunity accorded to it to do so in terms of Rule 105(2)
of the Rules of Procedure. The Commission has time and again bemoaned the lack of
written submissions from one of the parties to a Communication. Inevitably in such
cases, the Commission has to adopt its decision on the basis of information provided
by one party, which deprives the Commission the benefit of a balanced version of the
complaint under consideration.
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50. Regarding Admissibility of a Communication submitted pursuant to Article 55 such
as the present, Article 56 of the Charter stipulates seven conditions which have to be
satisfied for such Communication to be considered on the merits.
3 Communication 275/03: Article 19 v Eritrea (2007) ACHPR para. 46; Communication 146/96: Jaw ara v The Gambia
(2000) ACHPR; and Communication 307/05: Chinhanto v Zimbabwe (2007) ACHPR.
51. The Commission adopts the position that the requirements for admissibility under
Article 56 of the Charter are cumulative and must each be adequately addressed and
fulfilled for a Communication to be declared admissible. Consequently, if upon the
Commission's assessment of the information submitted any one of the conditions is
not satisfied, the Communication will be declared inadmissible entirely or to the
extent of non-conformity as the case may be: see, among others, Communication
304/05: FIDH and others v. Senegal (2006) ACHPR para 38; Communication 338/07:
Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria (2010)
ACHPR para 43; and Communication 284/03: Zimbabwe Lawyers for Human Rights
& Associated Newspapers of Zimbabwe v. Zimbabwe (2009) ACHPR para 81; and
Communication Anuak Justice Council v. Ethiopia (2006) ACHPR para. 44.
52. In that regard, the Commission's practice is to examine a Communication in light of
each admissibility requirement as stipulated under Article 56 of the Charter,4 even if
the parties have not advanced any arguments on any of the conditions.
Indication of the Authors, Article 56(1) of the Charter
53. The Commission notes that the identities of the Victim in the present Communication
and the Complainant are clearly indicated respectively as Justice Thomas S. Masuku
and Lawyers for Human Rights - Swaziland respectively, with full contact details of
the latter. Clearly, Article 56(1) of the Charter requiring that the author must be
indicated, as read together with Rule 93(3) of the Rules of Procedure, are duly satisfied
and the Commission finds accordingly.
Compatibility with the Charter, Article 56(2) of the Charter
54. Regarding Article 56(2) of the Charter, the Commission notes that the present
Communication alleges violations of Articles 1, 7 and 26 of the Charter. In the broad
terms of Article 55 of the Charter providing for Communications other than those
brought ^y State Parties, the Complainant is entitled to submit the present
Communication. Further, the Communication is brought against a Party to the
Charter. The violations complained of allegedly occurred within the jurisdiction of
the Respondent State and apparently at the instance of its institutions and officials.
Furthermore, the violations occurred after the Charter had become enforceable
against the Respondent State. There is nothing in the information submitted by the
Complainant indicating to the contrary on each of these elements.
55. The Commission is accordingly satisfied that the present Communication is
compatible with the Charter by reasons of the subject matter, the parties, the location
of the alleged violations, and the time the alleged violations occurred, all in terms of
Article 56(2) of the Charter.
4 Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR para. 69
Language of the Communication, Article 56(3) of the Charter
56. The Commission does not include any disparaging or insulting language in the
Complainant's submissions directed against the Respondent State and its institutions
or the AU. Accordingly the Commission holds that the Communication complies with
Article 56(3) of the Charter.
Source of evf fence or information relied on, Article 56(4) of the Charter
57. The Commission observes that the Communication is not exclusively based on news
disseminated through the mass media. As a matter of fact it is almost entirely based
on the Victim's own account of his involvement in, and written records of various
proceedings at the domestic level leading to his dismissal. Accordingly, Article 56(4)
of the Charter is accordingly satisfied.
Whether settled in terms of Article 56(7) of the Charter
58. There is no information to the Commission's knowledge indicating that the subject
matter of the present Communication has been settled in terms of Article 56(7) of the
Charter. Consequently, the Commission deems the Communication compliant with
Article 56(7) of the Charter.
Exhaustion o local remedies, Article 56(5) of the Charter
59. Regarding Article 56(5) of the Charter, the rule is that a Communication will be
considered on the merits if it is "sent after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged." From the language of the rule,
firstly, where a Complainant successfully makes out the case that the procedure for
pursuing local remedies is unduly prolonged, the requirement to exhaust local
remedies before submitting a Communication would not apply. For this purpose,
whether the procedure is unduly prolonged is a question of both law and fact to be
settled on the circumstances in each case. The Commission does not wish to belabour
this point as it does not arise for consideration in the present Communication.
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60. In furtherance of compliance with Article 56(5) of the Charter, Rule 93(2)(i) of the
Rules of Procedure requires a Complainant to outline the steps taken to exhaust
domestic remedies, or if the applicant alleges the impossibility or unavailability of
domestic iemedies, the grounds in support of such allegation.5
61. Further, the Commission's jurisprudence is well established that the local remedies
required to be exhausted must be (a) available,6 (b) effective, and (c) sufficient. A
5 See also Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR para. 102
6 The words “... if any ...” in Article 56(5) of the Charter imply that if there are no remedies, the requirement to
exhaust local remedies does not apply.
remedy is considered available it firstly it exists, and secondly a victim can access,
pursue or make use of it without impediment; it is considered effective if it offers a
prospect of success; and it is considered sufficient if it is capable of redressing the
wrong established to have been suffered: see, among others, Communication 147/95149/96: Sir Dawda K. Jawara v. The Gambia (2000) ACHPR paras. 31-32;
Communication 299/05: Anuak Justice Council v. Ethiopia (2006) ACHPR paras. 5152; Communication 250/02: Liesbeth Zegveld and Mussie Ephrem v. Eritrea (2003)
ACHPR para. 37; Communication 334/06: Egyptian Initiative for Personal Rights
and Interights v. Egypt (2011) ACHPR para. 93.
62. The Commission wishes to highlight that availability of a remedy entails both its
existence in law and its accessibility in practice. There must exist in the municipal
legal order both substantive and procedural provisions for redressing complaints.
Secondly, in practice, such remedies must be accessible to the victim. There must be
no umust?
lable obstructions in the victim
s way to access such remedies.
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63. Accordingly, a remedy will be considered as unavailable to a given victim if it does
not exist at all, or if it does exist, it cannot be accessed or used by that particular victim.
The latter comports the result that even if a remedy may exist in law and is accessible
generally, it may nevertheless be unavailable to a given victim because of
circumstances unique to such victim's case. This is a question of fact to be settled on
the evidence in each case.
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64. Another point to note is that any evaluation regarding "effectiveness" and
"sufficiency" of a remedy presupposes at least the availability of some remedy. Where
a given remedy is not available, the criteria of effectiveness and sufficiency do not
arise. On the other hand, if the argument be that a given remedy does not offer
prospects of success, the conclusion would be that such remedy is ineffective and if
so accepted by the Commission, the Communication would be admitted for
considera on on the merits. The same applies where the remedy is found to be
insufficient because it is not capable of redressing the wrong suffered.
65. It is an epic non sequitur to argue that a remedy is 'ineffective' or 'insufficient' and
conclude that it is therefore 'unavailable.' For the avoidance of doubt, when in
Communication 251/02: Lawyers of Human Rights v. Swaziland (2005) ACHPR
para. 27 the Commission stated that it was "... of the view that the likelihood of the
complaint succeeding ... is so minimal as to render it unavailable and therefore
ineffective", both the preposition "it" and the word "unavailable" referred to the
"likelihood of ...succeeding" or the prospects of success which is used to assess the
effectiveness of a remedy.
66. Furthermore, the Commission has adopted the position that even though there may
be a range of other local remedies for redressing a given violation, it is particularly
important for purposes of Article 56(5) of the Charter that the remedy must be of a
judicial nature; a remedy sought from the municipal courts: see Communication
221/98: Alfred B. Cudjoe v. Ghana (1999) ACHPR para. 14;7 Communication 313/05:
Kenneth Good v. Botswana (2010) ACHPR para. 88; Communication 375/09:
Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and
the International Centre for the Protection of Human Rights) v. Kenya (2011)
ACHPR para. 53.
67. In the pre ent Communication, the Complainant contends that "no remedies fitting
the standard [of availability, effectiveness and sufficiency] are at present available
within the [Respondent State's] constitutional and judicial framework." To make out
this submission, the Complainant advances five grounds as summarised above. The
Commission will first consider the fourth ground as it is critical.
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68. The Complainant avers that domestic remedies are not available because civil claims
against the King are not entertained by domestic courts. In this regard, the
Complainant produces a Practice Directive issued by the Chief Justice on 16 June 2011
addressed to all courts and legal practitioners. In the operative part, the Practice
Directive stipulates as follows:-
It has come to the attention of the Chief Justice that some legal practitioners issue summonses
or applications for civil claims against His Majesty the King and iNgwenyama. The attention
of legal practitioners and litigants is hereby drawn to s. 11 of the Constitution which provides
as follows:
'11. The King and iNgwenyama shall be immune from (a) Suit or legal process in any cause in respect of all things done or omitted to be done by him;
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(b) Being summoned to appear as a witness in any civil or criminal proceedings."
Accordingly, the Chief Justice hereby issues the following Practice Directive:(1 )Summonses or applications for civil claims against His Majesty the King and iNgwenyama,
either directly or indirectly, shall not be accepted in the High Court or any other Court in the
country.
(2) The Registrar of the High Court and/or all those entrusted with receipt of court process in
this country are hereby directed to refuse to accept any summons or application specified in
2(1) above.
69. The Complainant avers that the Victim's dismissal is an act of the King and
iNgwenyama. In terms of the above Practice Directive, which is being followed in
practice, any possible suit the Victim might institute will not be entertained by the
domestic courts because such suit would be challenging the King's decision.
Accordingly, domestic remedies are not available in the circumstances of the Victim's
complaint.
7 The Complainant produced a decision handed down by the Ghanaian Human Rights Commission in his favour. He
did not indicate any steps he had taken before the municipal courts. Neither did he suggest that beyond the decision
of the Ghanaian Human Rights Commission he was precluded or impeded from approaching the municipal Courts.
The Commission declared the Communication inadmissible.
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70. Notably, the Complainant notes that the Victim does not appear to agree with the
Chief Justice's adumbration of Section 11 of the Constitution, as in the Practice
Directive quoted above. However that is immaterial for the present purposes. What
is material is whether in practice the Victim can access the domestic courts to
challenge his removal from the position of Judge of the High Court and seek the
appropriate remediation.
71. Hie Commission finds itself of one mind with the Victim that his complaint
inseparably relates to both the disciplinary inquiry which recommended his
dismissal, as well as the very formal act of dismissal. The Complainant produces, and
the Commission has perused, a copy of Legal Notice No. 140 of 2011 done under the
hand of Mswati III, King and iNgwenyama of Swaziland dated 27th day of September
2011. In h the King and iNgwenyama removes Justice Thomas Masuku, the Victim,
from the office of Judge of the High Court of Swaziland for serious misbehaviour. The
King and iNgwenyama does this in exercise of the powers provided for under Section
158(2) of the Constitution of the Kingdom of Swaziland. Clearly, the formal removal
of the Victim is an act of the King and iNgwenyama. To this extent, any legal suit the
Victim would have to institute would have to deal with this official act of the King
and iNgwenyama, in addition to its antecedent disciplinary hearing.
72. Given the plain language of the Practice Directive quoted above, and considering that
the Practice Directive is being implemented in practice, it is clear that even though
judicial remedies may generally exist in the Respondent State's legal system, such
remedies cannot be accessed by the Victim, as suits against the King and iNgwenyama
cannot even be registered by domestic Courts.
73. Accordingly the Commission is satisfied that domestic remedies are not available in
the circur. stances of the Victim and consequently the requirement to exhaust local
remedies does not apply.
74. Having found that domestic remedies are not available in the circumstances of the
Victim, the Commission does not consider it necessary to examine the other grounds
advanced by the Complainant. This is because the remaining grounds relate to
effectiveness and sufficiency, as opposed to availability even though the Complainant
advanced them to make out the submission that local remedies are not available.
Whether Communication submitted within reasonable period, Art 56(6) of the Charter
75. Lastly, Article 56(6) of the Charter requires that a communication must be brought
within a reasonable period from the time local remedies are exhausted. As the
Commission has already found, domestic remedies are not available in the
circumstances of the Victim. However, this does not mean that the requirement of
Article 5tv6) of the Charter does not arise. In cases where local remedies are
unavailable, the communication must be brought within a reasonable period from the
time the alleged violation occurs or in appropriate cases from the time the
Complainant becomes aware of the violation, or indeed when the Complainant
becomes aware that local remedies are not available.
76. Further, it is important to highlight that Article 56(6) of the Charter does not prescribe
a specific ime limit It merely requires that a Communication must be submitted
"within a reasonable period." What constitutes a "reasonable period" is a question of
both law and fact. To the extent that it is a question of fact, it will be settled on the
circumstances of each case. In this regard, previous instances where specific periods
were accepted or rejected as reasonable or unreasonable are of very limited
consequence in assessing whether a Communication at hand has been submitted
within a reasonable period of time. Thus the Commission has previously held that
whereas six months appears to be the standard time limit applied by the Inter
American Commission and European Court of Human Rights, "each case must be
treated on its own merits."8
77. In the present Communication, local remedies are not available in the circumstances
of the Victim in light of the Practice Directive barring suits against the King issued on
16 June 2011. Accordingly, the relevant period would be reckoned from the date he
was ultimately removed as Judge of the High Court of Swaziland: 27 September 2011.
This Communication was submitted on 11 April 2013. The Complainant did not
initially advance any arguments on the requirements of Article 56(6) of the Charter.
78. Upon being requested by the Commission, the Complainant referred the Commission
to documents already filed together with the submissions on admissibility. In
particular, there is correspondence indicating that after the Victim had been
dismissed, he sought to obtain a record of the disciplinary inquiry, written rulings on
the preliminary objections he had raised during the disciplinary inquiry, and the
reasons supporting the recommendation for his removal, all to assist him in seeking
local remedies. Further, the Complainant states that since there is a Practice Directive
which bars registration of suits against the King, the first step in pursuing local
remedies entailed challenging the Practice Directive. Before the Victim could file the
necessary application for that purpose, the Courts went on recess from November
2011 to February 2012. The Victim was only able to attempt to file the necessary
application after the Courts resumed around February 2012.
%
79. However, the Victim's application challenging the Practice Directive could not also
be registered by the Registrar of the Court because it was deemed to be indirectly
against the King since the Practice Directive is for the benefit of the King. It was only
upon these frustrations that the Victim finally resolved that domestic remedies were
not available and decided to approach the Commission with the present
Communication in April 2013.
8 Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR. para. 109
80. The Commission notes that there elapsed a period of about one year from around
February 2012 when he attempted to initiate domestic proceedings to April 2013 when
the Complainant finally submitted the present Communication. Having regard to the
circumstances of this case and the efforts deployed by the Victim in trying to seek
local remedies, the Commission considers that this Communication was submitted
within a reasonable period of time and therefore complies with Article 56(6) of the
Charter.
81. Accordingly, the Commission declares the Communication admissible.
DECISION ON STRIKE OUT
82. Rule 108(1) of the Commission's Rules of Procedure (the Rules) provides that once a
Communication has been declared admissible, the Commission shall set a period of
sixty (60) days for the Complainant to submit observations on the merits.
■
83. Rules 113 of the Rules provides that when a deadline is fixed for a particular
submission, either party may apply to the Commission for extension of the period
stipulated, and the Commission may grant an extension which shall not exceed one
month.
84. The Commission notes that, as at 24 February 2015 when this Communication is being
considered during the holding of the 17th Extra-Ordinary Session, the Complainant's
observations on the merits are over four months overdue from the stipulated
deadline, to wit, latest from 19th October 2014.
85. The Commission also notes that neither during the stipulated two months, nor during
the four months outside of that period did the Complainant seek an extension of the
time within which to submit observations on the merits.
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86. The Commission considers that the Complainant's failure to submit observations on
the merits within the prescribed time or at all, or indeed to seek an extension of the
time witl :n which to do so amount to want of diligent prosecution of this
Communication.
■
87. In light of the Complainant's failure to prosecute the Communication diligently, or at
all, after the decision on admissibility, the Commission decides to strike out this
Communication.
RELISTING THE COMMUNICATION
The Application for re-listing
88. By letter dated 12 April 2015, but received at the Secretariat on 15 April 2015 from
Professor Michelo Hansungule who had just been retained as the Complainant to
represent the Victim, the Complainant submitted an application for the
Communication to be re-listed. The application is supported by affidavits of the
Victim and the Chairperson of Swaziland Lawyers for Human Rights, which
submitted the Communication on behalf of the Victim. In the same application for
relisting, Professor Hansungule requested to be heard orally on the application during
the 56th Ordinary Session of the Commission which was due to be held from 21 April
to 07 May 2015.
89. With only about six (6) days to the 56th Ordinary Session in respect of which the
agenda b d already been settled, and with the impossibility of affording the
Respondent State a fair notice of the requested hearing, the request for an oral hearing
on the application could not be granted. The new Complainant was promptly
informed of the impossibility of holding the oral hearing.
90. The Complainant's application for re-listing was transmitted to the Respondent State
by e-mail of 25 April 2015 and by courier delivered on 6 May 2015 at 10:32 am. The
application for re-listing was transmitted to the Respondent State because it had
received notice of the strike out decision and it was deemed necessary in the interest
of transparency and due process to avail it the opportunity to present observations on
the application. As at the date of adopting the present decision, the Respondent State
has neither acknowledged receipt of the application for re-relisting, nor presented any
observation on the application.
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91. In the application for re-listing, the Complainant submits on behalf of the Victim that
the failure to present merits submissions, or indeed to confirm that the submissions
in the Complaint shall stand as merits submissions was no fault of the Victim himself.
Rather the default was as a result of "the regrettable oversight which is entirely due to
negligent and unprofessional handling of the Communication by the [previous] legal
representatives of the victim.
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92. In his supporting affidavit, the Victim himself states that he retained the services of
Swaziland Lawyers for Human Rights to submit and prosecute the present
Communication before the Commission on his behalf. With shock and dismay, he
learnt on 17 March 2015 that his complaint had been struck out. All the while the
Victim labored under the impression that the Communication is due for consideration
on the merits. The Victim firmly states that at no point did he have the intention to
abandon the complaint, and he is ever desirous to see it through to the merits with a
view to vindicate his rights. Accordingly, he prays that the Commission may exercise
its discretion to re-list the Communication and consider it on the merits.
93. Additionally, the Chairperson of Swaziland Lawyers for Human Rights affirms that
upon receiving the Commission's decision on admissibility, the Board of Trustees of
Swaziland Lawyers for Human Rights (the Board) met and resolved that it was not
necessary to file additional submissions to those advanced in the Complaint. The
previous Complainant states with regret that by pure oversight and not intentionally,
the decision was erroneously not communicated to the Commission. In his testimony,
the entire Board was under the impression that its decision had since been
communicated to the Commission, until he learnt of the Commission's decision
striking the Communication out. Finally, he highlights the importance of the matter
to the Victim, and the possible implications of the Commission's ultimate decision on
the merits for the independence of the Respondent State's judiciary. He accordingly
prays that the Communication may be reinstated for consideration on the merits.
The Commission's assessment of the application
94. It must be noted at the outset, that despite stipulating definite periods within which
parties must present their written submissions, the Rules of Procedure do not
expressly provide for striking out of a Communication for the Complainant's failure
to diligently prosecute the complaint. Indeed it might either have been considered
unnecessary to so expressly stipulate, preferring that the Commission should exercise
discretion n each case; or merely an oversight to so stipulate.
95. Whatever the case may be, the Commission retains the inherent power to deal with
matters that are not expressly provided for under the Rules of Procedure. The
Commission bears in mind its duty to invoke and exercise such inherent power
judiciously, to various ends which include upholding the authority of the Rules of
Procedure which are meant to facilitate adjudication of complaints in such a manner
that a single complaint does not clog the complaints handling mechanism to the
detriment of other existing and prospective complaints.
96. To this and other legitimate ends, the Commission may sanction inexplicable defaults
by the parties: for example by proceeding to adopt a decision based on the
Complainant's submissions only where the Respondent State does not submit its
observations, as was the case with the admissibility decision, or indeed where the
State is so tardy in presenting its submissions. Similarly, where the Complainant does
not present submissions at any stage of the procedure on time or at all, the
Commission may expunge the Communication from consideration for failure to
prosecute the complaint.
97. By the same inherent power, the Commission can consider an application for an
expunged Communication to be re-listed for consideration. For purposes of such an
application, the Complainant must offer a cogent explanation or reason for the default
which resulted in the strike out. In considering such an application, the Commission
will take into account, as principal considerations, the object and purpose of the
Charter and the Rules of Procedure being the protection of the rights and freedoms
guaranteed under the Charter. The Commission will also consider the possible
prejudice that may be occasioned to the Respondent State as a result of the default or
indeed if the Communication were to be revived after being struck out. Other than
these factors, the Commission will consider all the circumstances of the case in
exercising its discretion on whether or not to re-list the Communication.
98.
In the case at hand, the Commission notes the explanations offered by the Victim, who
seems to have been unaware of the developments on the Communication since it was
submitted, until he was notified of the decision striking out the Communication. On
its part, Swaziland Lawyers for Human Rights through its Chairperson explains that
the default was as a result of a pure oversight in failing to confirm to the Commission
that the merit arguments advanced in the Complaint shall stand as submissions on
the merits and no further papers would be filed.
99.
Further, the Commission notes the Respondent State's failure to present any
observations on the application for re-listing, by which observations it would have
raised prejudice, if any, in presenting its case henceforth. The Commission does not
perceive any such prejudice. The Commission also notes the prompt manner in which
the Victim responded to the strike out decision by retaining new legal representation
and filing the present application. This demonstrates the resolve and commitment to
prosecute the matter to finality. Indeed as the procedural history of this matter
indicates, the Complainant has been so timely as to even beat the time stipulated for
submission of arguments and evidence on admissibility.
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100. In the circumstances of this case, the Commission finds the Victim's default excusable
as a mere lapse on the part of the previous Complainant (Lawyers for Human Rights
- Swaziland). The Commission does not consider it to serve any legitimate end to
deny the Victim at least adjudication of his complaints on the merits on account of a
default that in all earnest cannot justifiably be imputed to him directly.
101. Accordingly, the Commission decides to re-list the Communication for consideration
on the merits.
THE MERITS
The Complainants' Submissions on Merits
Article 1
102. The Complainant submits that, in terms of Article 1, Swaziland has an obligation it
cannot renege from, to respect and perform its obligations under the Charter.
103. The Complainant avers that many of the provisions of the African Charter were
incorporated in the Constitution and must be respected.
104. The Complainant refers to Civil Liberties Organization v. Nigeria, in which the
Commission held that "any doubt that may exist as to Nigeria's obligations under the
African Charter is dispelled by reference to Article 1 of the Charter."9 The
9 Communication 129/94: Civil Liberties Organization v. Nigeria (2000) ACHPR, para 16
Complainant submits that this statement applies with equal force in relation to
Swaziland, as a State Party to the African Charter.
Article 7
105. The Complainant submits that Article 7 of the Charter, read together with the
Universal Declaration of Human Rights (UDHR) and the International Covenant on
Civil and Political Rights (ICCPR), guarantee the right to a fair and just hearing.
106. The Complainant further submits that the ingredients of such a hearing are that a
person, against whom certain accusations have been levelled, has a right to have the
matter determined by a competent, impartial and just tribunal.
Right to apperr before, and to be heard by an impartial, independent and competent
tribunal
107. The Complainant avers that the Victim's right was violated, because the Judicial
Service Commission (JSC), the tribunal which tried him, was chaired by the Chief
Justice who became the accuser, prosecutor, witness and Judge, all at the same time,
which offends the rules of natural justice, fairness and common sense.
108. The Complainant avers that the Chief Justice was the complainant in the proceedings,
which appears in the charges against the Victim. The Complainant further avers that
the Chief Justice would ordinarily be required to be a witness and give evidence, in
light of the fact that a number of the charges related to him or his office; therefore the
Chief Justice should have been open to cross-examination.
I
109. The Complainant avers that, at the heart of the application for the Chief Justice to
recuse hir self was the observation that he was likely to be biased in his determination
of the matters, given the charges related to him or his office. Accordingly, the
Complainant avers that the refusal of the Chief Justice to recuse himself at the hearing
was a violation of Justice Masuku's right to a fair trial.
110. The Complainant referred to Lawyers for Human Rights v. Swaziland10 in which the
Commission held that Article 7 of the African Charter provides for fair trial
guarantees - safeguards to ensure that any person accused of an offence is given a fair
trial. Further, in Zimbabwe Human Rights NGO Forum v. Zimbabwe,11 the
Commission stated that the protection afforded by Article 7 is not limited to the
protection of the rights of arrested and detained persons, but encompasses the right
of every individual to access the relevant judicial bodies competent to have their
causes heard and be granted adequate relief. The Complainant submits that the JSC is
one such body enjoined to respect fair hearing rights.
10 Communication 251/02: Lawyers of Human Rights v. Swaziland (2005) ACHPR, para 53
11 Communication 245/02: Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) ACHPR, para 128
111. The Complainant argues that the lack of impartiality and independence of the JSC,
and in particular the refusal by the Chief Justice to recuse himself rendered the
proceedings irregular, unlawful and unconstitutional, and liable to be found to have
violated the State's Constitution and obligations under the Charter and international
law.
112. The Complainant further argues that the Victim appeared before the JSC in its
capacity as the administrative body, headed by the Chief Justice, therefore the
provisions of Section 33(1) of the Constitution were supposed to be followed. In this
regard the Complainant makes reference to the United Nations Human Rights
Committee which stated that "Article 14 requirements and procedures of the fair
administration of justice applies not only to procedures for the determination of
criminal charges against individuals, but also to procedures to determine their rights
and obligations in a suit at law."
Right to a fair public hearing
113. The Complainant submits that the JSC was wrong to refuse the Victim the right for
his case to be heard in public. The Complainant further submits that although serious
allegations were levelled against the Victim, he desired that he be vindicated in public.
114. The Complainant submits that the request and desire by the Judge for the hearing to
be heard in public was in line with the provisions of Section 21(11), read with Section
33 of the Constitution, and further that, in the context of the disciplinary hearing
against the Victim, the JSC was sitting as a quasi-judicial body, and therefore an
adjudicating authority within the provisions of Section 21(11) of the Constitution.
Accordingly, the Complainant urges the Commission to find that the manner in which
the JSC conducted the disciplinary hearing violated Article 7 of the African Charter.
115. Furthermore, the Complainant avers that the JSC refused independent observers to
observe the hearing. In this regard, the Complainant references General Comment No.
13 of the Human Rights Committee, which states that "the publicity of hearings is an
important safeguard in the interest of the individual and society at large." The
Complainant concludes that the failure to afford the Victim a public hearing, when he
asked for it, rendered the hearing arbitrary.
Article 26
116. The Complainant submits that charging the Victim with an offence while in the course
of duty was gross interference with his individual and decisional independence as a
judicial officer. The Complainant further submits that, the fact that the Victim was
dismissed while he exercised his functions properly granted by the law and the
Constitution is a gross violation of his independence as a judicial officer, and a
violation of the independence of the judiciary as a whole.
117. The Complainant contends that the dismissal of the Victim violated and undermined
the independence of the judiciary as guaranteed by Article 26 of the Charter and
Section 141(1) of the Constitution. Further, the Complainant contends that the
judiciary is the bastion of the protection and promotion of human rights, as stated in
Section 14(2) of the Constitution.
118. The Complainant avers that the unlawful and unconstitutional manner in which the
JSC conducted the hearing, violated the provisions of the Charter and the Constitution
and undermined the rule of law.
119. The Complainant cites Lawyers for Human Rights v. Swaziland,12 in which the
Commission emphasized the independence of the courts, stating that "it is the duty
of all government and other institutions to respect and observe the independence of
the judiciary."
120. The Complainant contends that the reasons for the Victim's dismissal are not in line
with the international standards that justify the dismissal of a judge. The Complainant
further contends that the members of the JSC are appointed by the King; however this
is not in compliance with the provisions of Section 173(4) which requires that the
process of appointment must be done in a competitive, transparent and open manner.
In this regard, the Complainant references the Commission's decisions, including,
Media Rights Agenda v. Nigeria 13and Civil Liberties Organization v. Nigeria,14 in
which the Commission questioned the independence of bodies whose membership is
composed by members who were hand-picked and appointed by the Executive, in
particular the Head of State.
121. The Com[ ’ainant submits that, the fact that the members of the JSC are hand-picked
by the King, offends the principle of separation of powers. The Complainant notes
that in its jurisprudence the Commission held: "By entrusting all judicial powers to
the head of state with powers to remove judges, the Proclamation of 1973 seriously
undermines the independence of the judiciary."15 The Complainant further submits
that the recommendations issued by the Commission following its Promotion Mission
to Swaziland in August 2006, underscored that Swaziland must ensure that the
monarch respects the doctrine of separation of powers and the rule of law, to ensure
that power belongs to the people.
122. The Complainant avers that the Victim's dismissal demonstrates the sad reality and
experience of interference with the judges' decisional independence. The
Complainant contends that under the rule of law, judges are free to decide their cases
without any interference from any authority.
12 Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR, para 55
13 Communications 105/93, 128/94, 130/94, 152/96: Media Rights Agenda v. Nigeria, Complainants submissions,
para 17.7.1
14 Communication 129/94 Civil Liberties Organisation v. Nigeria (1995) ACHPR
15 Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR, para 56
./s' •
123. Additionally, the Complainant submits that, despite the fact that the charge relating
to decisional independence was withdrawn, the Victim was still found guilty.
124. The Complainant further submits that the Victim was not afforded an opportunity, as
is customary, to be advised of the conviction by the JSC. It is contended that the Victim
was not afforded an opportunity to make submissions in mitigation of sentence; the
JSC proceeded to recommend his sanction to the King, with no reference to what he
would have wished to state in mitigation of sentence.
The Respondent State's Submissions on Merits
125. Firstly, the Respondent State rebutted the Admissibility of the Communication,
averring that the State Party denies the Complainant's allegation that there are no
available remedies in Swaziland because the judiciary is not independent. The State
referenced Section 141(1) of the Constitution (2005), which endows the judiciary with
judicial independence.
126. The Respc ndent State further avers that there is no evidence to suggest that the Victim
was never afforded an opportunity to be fully heard by the judicial system of
Swaziland, or that the case was never decided on the merits, or that the remedies
would be ineffective. Accordingly, the State submits that the Complainant is put to
strict proof of any allegations of ineffectiveness of domestic remedies.
127. In response to the Complainants submissions on the Practice Directive No.4/2011, the
Respondent State submits that this has been overtaken by events, given that the
Directive has been withdrawn. The State further submits that Section 152 of the
Constitution empowers the High Court to exercise review and supervisory
jurisdiction over all subordmate courts and tribunals or any lower adjudicating
authority, and may issue orders for the purpose of enforcing its review or supervisory
powers.
128. Regarding the demotion of the Victim to the Industrial Court of Swaziland, the
Respondent State avers that the variation of terms and conditions of appointment was
an administrative decision, made independently by the judiciary, in order to address
the backlog of cases at the Industrial Court, which affected other Judges in addition
to the Victim.
129. The Respondent State contends that the Judicial Service Commission is
constitutionally empowered, as a competent and independent structure to investigate
and advise on the removal of Justices of the Superior Court, in terms of Section 158(3)
and 159 of the Constitution.
130. Regarding the allegation of holding the JSC proceedings in private, the Respondent
State concedes that, at the time the Communication was filed, impeachment
proceedings were considered as merely administrative proceedings which did not
require any public hearing. The State submits that it has since taken steps to ensure
that impeachment of Justices of the Superior Courts are conducted publicly, as
evidenced in the impeachment process of the then Chief Justice and another High
Court Judge, who were found to have compromised the independence of the
judiciary.
131. The Respondent State further submits that conducting impeachment proceedings in
camera does not automatically render the proceedings arbitrary. The State referenced
Rule 99(8^ of the Commission's Rules of Procedure (2010) which provides that
hearings on communications before the Commission shall be held in camera. The
State avers that an inference may be drawn that the intention of the Rule is to protect
the integrity of the parties to the Communication, as was the case with regards to the
Victim's case.
132. The Respondent State submits that the proceedings against the Victim were
administrative and not criminal, therefore the protection of whistle blowers was
important. The State avers that corrective measures have been undertaken in
subsequent proceedings of a similar nature.
ixegaramg me quesuon or me independence of the judiciary, with regards to the
appointment of members of the JSC by the King, the Respondent State submits that
the Complainant's assertions are intended as a direct attack on the country's supreme
law and should not considered. The State further submits that Section 173(3) and (4)
is irrelevant for advancing the Complainant's argument in so far as it relates to the
independence of the judiciary and the appointment of the JSC, as all provisions
relating to the JSC are specifically outlined in Chapter VIII of the Constitution.
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134. Regarding the principle of the separation of powers, the Respondent State contends
that the appointment of Justices of Superior Courts is entrusted to Heads of State in
many Member States. The State avers that progressive steps have been undertaken to
facilitate the independence of the judiciary, including through adherence to the rule
of law, strengthening the judiciary through the appointment of permanent High and
Supreme Court judges, the removal from office of the then Chief Justice and another
judge who were found to have compromised the independence of the judiciary, as
well as the removal of the Practice Directive.
135. In conclusion, the Respondent State requests the Commission to recommend that the
parties should resolve the matter amicably at the domestic level, based on the fact that
the cause f action is contractual. The State also calls on the Commission to disregard
the request of the Complainant "that the Government of Swaziland be ordered to
reinstate Mr. Justice Thomas Masuku to the High Court unconditionally," given that
this would pre-empt the State's request to resolve the matter at the domestic level.
136. Accordingly, the Respondent State calls on the Commission to find that it has not
violated Articles 1, 7 and 26 of the African Charter.
THE COMMISSION'S ANALYSIS ON THE MERITS
137. This Communication concerns the alleged unlawful and unconstitutional removal of
the Victim as a judge of the High Court, in which the Complainant bases the claims
against the Respondent State on violations of Articles 1, 7 and 26 of the African
Charter.
138. The Commission will analyse each of the articles alleged to have been violated by the
State individually, followed by a discussion on Article 1 of the African Charter.
139. At the outset, the Commission observes that the Judicial Service Commission (JSC) is
a constitutional body established under Article 159 of the Respondent State's
Constitution, of which the Chief Justice is the chairman.16 The JSC is mandated, inter
alia, to investigate and advise whether a Justice of the Superior Court of Judicature
should be removed from office.17 The Constitution further stipulates that, acting on
the advice of the Chief Justice in the case of any Justice of a superior court, the JSC
enquires into the matter and recommends to the King whether the Justice should be
removed from office.18
140. The Commission notes that strictu sensu the JSC is not a judicial body - the
Complainant refers to the JSC as a quasi-judicial body,19 whereas the Respondent
State refers to the JSC proceedings as 'administrative proceedings.'20
141. Regardless, as noted in the Commission's jurisprudence: "The right to a fair hearing is
based on key elements including in particular the principle of equality of arms for the parties
to the case, whether administrative, civil, criminal or military, the opportunity to properly
prepare the defence, to present arguments and evidence and to respond to the arguments and
evidence of the prosecution or the defendant."21 Accordingly, the Commission observes
that the p mciples on the right to a fair trial should be observed and respected in the
disciplinary proceedings of the JSC.
142. With these preliminary considerations in mind, the Commission will proceed to
analyse the alleged violations of the African Charter.
Violation of Article 7
143. Article 7(1) of the African Charter stipulates thus:
16 Section 159(2)(a), Constitution of the Kingdom of Swaziland (2005)
17 Section 158 (1) and (3), Constitution
18 Section 158(3) and (4), Constitution
19 Complainant submissions, paragraph 10.3.1, pg. 16
20 Respondent State submission, page 4
21 Communication 286/04: Dino Noca v. Democratic Republic of the Congo (2012) ACHPR, para 186
1. Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations and
customs in force;
(b) the right to be presiimed innocent until proved guilty by a competent court or tribunal;
(c) the right to defense, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal.
144. In the present Communication, the Complainant avers that Article 7 of the African
Charter, read together with the UDHR and the ICCPR, guarantee the right to a fair
and just hearing. The Complainant contends that the ingredients of such a hearing
include "the right to appear before and to be heard by an impartial, independent and competent
tribunal," in addition to "the right to a fair public hearing," drawing inspiration from
Article 10 of the UDHR and Article 14 of the ICCPR.22
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145. In light of the fact that the Complainant has argued these two elements individually,
the Commission will analyse them separately.
..
.
The right to appear before, and to be heard by an impartial, independent and
competent tribunal
146. Whereas the African Charter provides that the right to a fair trial includes the right to
be tried within a reasonable time by an impartial court or tribunal, the Complainant does
not specifically refer to a violation of Article 7(1 )(d) in the present Communication.
Rather the Complainant refers to the "right to appear before, and to be heard by an
impartial, independent and competent tribunal" as one of the requirements of a fair
trial.
147. However, it is instructive to note that the Commission's Principles and Guidelines
on the Right to a Fair Trial and Legal Assistance in Africa (the Principles on the
Rights to a Fair Trial),23 stipulate the following in Principle 1: "In the determination of
any criminal charge against a person, or of a person's rights and obligations, everyone shall be
entitled to a fair and public hearing by a legally constituted competent, independent and
impartial judicial body." As earlier noted, whereas this principle refers to criminal cases,
the Commission has determined that the right to a fair hearing applies equally to
administrative, civil, criminal or military cases,24 and therefore would apply to the
JSC discip inary proceedings.
22 Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations and of any criminal charge against him. (UDHR)
Article 14(1): All persons shall be equal before the courts and tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law. (ICCPR)
23 Adopted by the Commission during its 33rd Ordinary Session, held in May 2003
24 Communication 286/04: Dino Noca v. Democratic Republic of the Congo (2012) ACHPR, para 186
148. The Complainant avers that the Victim's right to appear and be heard by an impartial,
independent and competent tribunal was violated because the JSC was chaired by the
Chief Justice who became the "accuser, prosecutor, witness and Judge all at the same
time, which offends the rules of natural justice, fairness and common sense." The
Complainant submits that the Chief Justice was the accuser in the proceedings,
because a number of the charges related to his office, therefore the Chief Justice would
ordinarily be required to be a witness and give evidence. The Complainant avers that
by the time the Chief Justice presided over the hearing, his independence had long
been compromised and concludes that the refusal of the Chief Justice to recuse himself
from the JSC hearing was a violation of the Victim's right to a fair trial.
149. The Respondent State, on the other hand, submits that the JSC is constitutionally
empowered as a competent and independent structure to investigate and advise on
the remo al of Judges, as stated in Section 158 and 159 of the Constitution
respectively.
150. In Communication 281/03 Marcel Wetsh'okonda Koso and others v. DRC, the
Commission stated that it "read Articles 7and 26 together and held that Article 7 deals with
the right to be heard by impartial courts, and Article 26 insists on the independence of courts;
the Commission notes that States have the duty to put in place credible institutions for the
promotion and protection of human rights. Article 26 being the necessary appendix of Article
7, one can expect a fair trial only before impartial courts."25
151. To this end, the Commission notes that" the notions of independence and impartiality tend
to have different meanings in different contexts. Generally speaking, both impartiality and
independence are understood to safeguard the objectivity and fairness of judicial
proceedings."26
152. Regarding impartiality, "the UN Human Rights Committee stated that it 'implies that
judges must not harbour any preconceptions about the matter put before them, and that they
must not act in ways that promote the interests of one of the parties."27 In contrast, "judicial
independence safeguards the judiciary against any interference by state organs or private
persons with the performance of judicial duties. Thus, while impartiality reflects an openmindedness on the part of the judges, independence describes functional and structural
safeguards against extraneous intrusion into the administration ofjustice."2*
153. Taking into account the definition of 'independence' prescribed above, the
Commission is of the view that the information and evidence provided in relation to
the present Communication does not demonstrate a lack of independence of the JSC,
or of the disciplinary proceedings which were held regarding the Victim. The
25 Communication 281/03: Marcel Wetsh’okonda Koso and others v. DRC (2009) ACHPR, para 77
26 “Independence and Impartiality of Judges,” by P. Radler, in The Right to a Fair Trial, Weissbrodt, D., Wolfrum,
Rudiger (Eds.), Snringer-Verlag Berlin Heidelberg, 1997, http://hrlibrary.umn.edu/fairtrial/wrft-rae.htm
27 “Independence und Impartiality of Judges,” by P. Radler
28 “Independence and Impartiality of Judges,” by P. Radler
Commission observes that the JSC is duly established by law, and from the evidence
provided, the JSC disciplinary proceeding against the Victim was not subject to any
undue "restrictions, improper influence, inducements, pressure, threats or
interference, direct or indirect, from any quarter."29
154. As to the issue of 'impartiality/ the Commission takes notes that the premise of the
allegation is founded on the Complainant's submission that, in the disciplinary
proceedings against the Victim, the Chief Justice was the 'accuser, prosecutor, witness
and Judge all at the same time;' therefore the Chief Justice should have recused
himself from the JSC hearings against the Victim.
155. Taking into account the information provided, the Commission observes that
approximately six (6) of the charges which were laid against the Victim, out of a total
of twelve (12), relate to the Chief Justice.
156. Specifically, the Commission considers that the following charges relate to the Chief
Justice:
- Charge 2: Defying the Chief Justice's directive to prepare and submit a monthly
schedule of pending judgments;
- Charge 4: By touting yourself to be appointed Chief Justice, especially amongst the
chiefs;
- Charge 7: By sending one Gugu Vilakati, a High Court staff member, to a workshop
in Hong Kong without the Chief Justice's approval;
- Charge 8: By absenting yourself from work without the Chief Justice's permission
particularly on 30 March 2010;
- Charge 9: By threatening the Chief Justice with resignation when you were
confronted with your absenteeism from work without leave on 30 March 2010.
- Charge 10: By attacking the Chief Justice at a symposium of the International
Commission of Jurists (ICJ) held in Lesotho on 29 July 2010 for banning Judges from
giving interviews to the news media, thus demonstrating both insubordination and
disloyalty to the Chief Justice.
157. In light of the fact that these charges against the Victim emanated from the Chief
Justice, given that the Chief Justice would have had to report them to the JSC in order
for the disciplinary proceedings to be instituted against the Victim, the Commission
is of the view that the Chief Justice ought not to have chaired the JSC proceedings
against the Victim, given the likely perception that the Chief Justice could not be
impartial in the disciplinary proceedings.
158. To this end, the Commission takes note of the provisions in the Principles on the
Rights to a Fair Trial on an impartial tribunal:
29 Communication 334/06: Egyptian Initiative for Personal Rights and Interights v. Egypt (2011) ACHPR, para 112
Principle 5: Impartial Tribunal
d) The impartiality of a judicial body would be undermined when:
(i) a former public prosecutor or legal representative sits as a judicial officer in a case in
which he or she prosecuted or represented a party;
(ii) a judicial official secretly participated in the investigation of a case;
(iii) a judic al official has some connection with the case or a party to the case;
(iv) a judicial official sits as member of an appeal tribunal in a case which he or she decided
or participated in a lower judicial body.
In any of these circumstances, a judicial official would be under an obligation to step down.
159. In the instant case, the Chief Justice can be said to have "some connection with the case,"
given that a number of the charges against the Victim related to the Chief Justice and
even expressly referred to him; therefore in principle the Chief Justice was under an
obligation to step down from the JSC disciplinary inquiry of the Victim.
160. Furthermore, in its jurisprudence, the Commission has held the following:
"Impartiality may be perceived in a subjective and objective manner. In a subjective manner,
the impartiality of a judge is gauged by his internal inclinations. Since it is impossible to infer
from this inclination objectively, it was simpler to conclude that subjective impartiality be
assumed until proven otherwise. However, appearances cannot be ignored while gmiging the
impartiality of a jurisdiction."30
161. Taking this into consideration, the Commission finds that the information provided
in the present Communication does raise doubts on the impartiality of the Chief
Justice in relation to the JSC proceedings against the Victim.
162. Based on this analysis, the Commission finds that the Chief Justice's participation in
the JSC disciplinary proceedings violated the Victim's right to appear before an
impartial tribunal.
A '.
The right to a fair public hearing
163. With regard to the alleged violation of the right to a fair public hearing, the
Commission notes the Complainant's assertion that the JSC was wrong to refuse the
Victim's request to have his case heard in public, regardless of the fact that he desired
to be vindicated in public. Furthermore, the Complainant avers that the JSC rejected
the Victim's request for independent observers to observe the hearing. Therefore, the
Complainant avers that the failure to afford the Victim a public hearing, when he
asked for it, rendered the hearing arbitrary.
164. For its part, the Respondent State concedes that, at the time the Communication was
filed, impeachment proceedings were considered as merely administrative
proceedings which did not require any public hearing, and further that conducting
impeachment proceedings in camera did not automatically render the proceedings
30 Communication 281/03: Marcel Wetsh’okonda K.oso and others v. DRC (2009) ACHPR, para 80, 81
AU-'JA
'Cam
arbitrary. The Respondent State referenced Rule 99(8) of the Commission's Rules of
Procedure (2010), averring that an inference could be drawn that the intention of the
Rule was to protect the integrity of the parties to the Communication, as was the case
with regards to the Victim's case.
165. In determination of this allegation, the Commission notes that Article 7 of the African
Charter does not expressly refer to the 'right to a public hearing.'
166. However, Principle 1 of the Principles on the Rights to a Fair Trial stipulates that,
"in the determination of any criminal charge against a person, or of a person's rights and
obligations everyone shall be entitled to a fair and public hearing [...]," which the
Commission considers should apply equally to administrative, civil or military
hearings.
167. Additionally, Principle 3 stipulates a number of exceptions which would justify
denying a public hearing and would not violate the right to a fair trial:
Principle 3: Public hearing
Jr
f) The public and the media may not be excluded from hearings before judicial bodies except
if it is determined to be:
(i) in the interest of justice for the protection of children, witnesses or the identity of
victims of sexual violence
(ii) for reasons of public order or national security in an open and democratic society
that respects human rights and the rule of law.
168. The Commission also takes note of the UN Basic Principles on the Independence of
the Judiciary, which stipulate that: "A charge or complaint made against a judge in his/her
judicial and professional capacity shall be processed expeditiously and fairly under an
appropriate procedure. The judge shall have the right to a fair hearing. The examination of the
matterat its initial stage shall be kept confidential, unless otherwise requested by the judge."51
169. In the present Communication, the Victim expressly requested that the JSC
disciplinary proceedings considering his removal from judicial office should be held
in public, as recounted below from his response to the JSC which was submitted on
04 August 2011, in advance of the JSC disciplinary proceedings:
"Disciplinary inquiries of the JSC may sometimes be held behind closed doors for the protection
of the Justice who stands accused of unsubstantiated charges. I prefer any inquiry into my
conduct to be held in public however, because the charges against me have been widely
publicised and I am entitled an opportunity to refute them in public."52
31 Basic Principles on the Independence of the Judiciary, Principle 17 on Discipline, suspension and removal;
adopted by the seventh UN Congress on the prevention of Crime and the Treatment of Offenders on 06 September
1985 and endorsed by the UNGA in Resolution 40/146 on 13 December 1985
32 Complainant submissions, Annex LHR12, Letter from Magagula & Hlophe to the Judicial Service Commission,
para 19, pg. 12
170. However, the JSC dismissed the request for a public hearing for the following reasons:
"The JSC i appalled by the suggestion to open an investigation of this nature to the public. It
is hard to conceive of a need for public hearing even in a pure matter of discipline between an
employer and employee relationship. In any event, there is no provision in this country
entitling the JSC to open an investigation of this nature to the media and public."33
171. Whereas the Commission takes note of the fact that the legal framework for the JSC,
that is the Constitution of the Respondent State and the Judicial Service Commission
Act (1982), do not have a provision for the JSC to hold its proceedings in public, there
is equally no express provision mandating that its' proceedings should be held in
private. Furthermore, the Commission notes that both the Constitution and the JSC
Act prescribe that the JSC may regulate its own procedure.34
172. Hie Commission also observes that none of the exceptions to holding a public hearing,
which are stipulated in Principle 3(f) of the Principles on the Rights to a Fair Trial,
were cited by the JSC when it declined the Victim's request for a public hearing.
Furtherm re, whereas there is no explicit provision stipulating that the JSC's
proceedings should be held in public, the JSC's legal framework authorizes it to
regulate its procedure; therefore it should not have been out of the realm of possibility
for the JSC to grant the Victim's request for a public hearing of the JSC disciplinary
proceedings.
173. Additionally, the Commission takes note of the information provided by the
Respondent State, in paragraph 130 above, stating that steps have since been taken to
ensure that impeachment of justices of the superior courts are conducted publicly.
174. Taking all these factors into account, the Commission is of the view that the JSC
should have granted the Victim's request for a public hearing, and concurs that he
should have been given the opportunity to refute the charges against him in public.
The Commission also notes that the reasons given for rejecting the Victim's request
do not meet the standard stipulated in the Principles on the Rights to a Fair Trial.
175. Accordingly, the Commission finds that the failure to accord the Victim a public
hearing of the JSC disciplinary hearing violated his right to a fair trial.
176. In light of the fact that the Commission has determined that the JSC disciplinary
proceedings against the Victim were not impartial, and further the Victim's request
for a public hearing was wrongfully denied, the Commission finds that this amounts
to violation of the Victim's right to a fair trial, and accordingly finds a violation of
Article 7.
33 Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the
Constitution to His Majesty King Mswati III, para 19
34 Section 159(8) Constitution (2005) and Article 7(3) Judicial Service Commission Act (1982)
Violation of Article 26
177. Article 26 of the African Charter stipulates thus:
States parties to the present Charter shall have the duty to guarantee the independence of the
Courts and shall allow the establishment and improvement of appropriate national institutions
entrusted with the promotion and protection of the rights and freedoms guaranteed by the
present Charter.
178. This prov. hon of the African Charter is buttressed in the Commission's Principles on
the Rights to a Fair Trial:
Principle 4: Independent tribunal
"a) The independence of judicial bodies and judicial officers shall be guaranteed by the
constitution and laws of the country and respected by the government, its agencies and
authorities;"
179. In the present Communication, the Complainant avers that charging the Victim with
an offence while in the course of duty was gross interference with his individual and
decisional independence as a judicial officer. Additionally, dismissing the Victim
while he exercised his functions, amounted to a gross violation of his independence
as a judicial officer, and a violation of the independence of the judiciary as a whole.
180. The Respondent State however, submits that the Complainant's assertions are
intended as a direct attack on the country's supreme law and should not be
considered. Further, the Respondent State denies the Complainant's allegation of a
violation of the Victim's decisional independence, and puts the Complainant to strict
proof.
181. In order to understand the Complainant's allegation on interfering with judicial
independence, the Commission notes that, among the twelve charges of misbehaviour
which the Victim was accused of committing, one of the charges levelled against the
Victim states as follows: "Charge 3: Insulting His Majesty the King by using the words
"forked tongue" with reference to him."35 From the Complainant's submissions, the
Commission notes that the Victim used these words in a written judgement, in a case
referenced 'Maseko v. Commissioner of Police (Civil High Court case 1778/09).'36
182. However, the Commission also notes that the Complainant made a serious error in its
submissions, when it stated the following:
35 Complainant submissions, Annex No.LHR9, Letter from the Judicial Service Commission to Justice Masuku, 28
June 2011
36 Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the
Constitution to His Majesty King Mswati III, para 47
“Despite th" fact that the charge relating to decisional independence was withdrawn, Judge
Masuku was still found guilty .”37
183. Indeed, from the information submitted in support of the Communication, the
Commission observes that this charge was not withdrawn, and further the Victim was
found guilty of serious misbehaviour in relation to the charge.
184. In finding the Victim guilty of this charge, the JSC stated the following:
"In the present investigation, although the Judge said that he did not believe that the King
could speak with a forked tongue,' it is the very use of those words which constitutes an
insidt. Mr. Sinielane's view on this point is accepted by all Swazi members of the JSC. [...]
It would have been the simplest thing for the Judge to say that he did not believe the story
which was imputed to His Majesty the King. But for him to have gone further and used the
words 'forked tongue' with reference to His Majesty was not only reckless and unwarranted
but it was also plainly insulting to His Majesty. Such inappropriate and uncalled for
language can only be explained on the basis of malice in the circumstances of the
investigation. [...] Accordingly, the JSC unanimously finds the Jtidge guilty of serious
misbehaviour on this charge."3*
185. Based on this, the Commission concludes that the Victim was found guilty of serious
misbehaviour on account of specific language which he had used in the written
judgment of Maseko v. Commissioner of Police (Civil High Court case 1778/09).
•J'
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186. To this end, the Commission notes that "judicial officials may only be removed or
suspended from office for gross misconduct incompatible with judicial office, or for physical or
mental incapacity that prevents them from undertaking their judicial duties."39 The
corresponding language used in Respondent State's Constitution refers to 'serious
misbehavior,40 whereas the UN Basic Principles state plainly that "judges shall be
subject to suspension or removal only for reasons of incapacity or behaviour that renders them
unfit to discharge their duties."41
■
187. With regard to the present Communication, the Commission is of the view that
instituting disciplinary proceedings against a Judge based on language which was
used in a judgment does not constitute 'serious misbehavior/ rather this charge
amounts to interference with the Victim's judicial independence.
37 Complainant submissions, Para 17.9.2, pg.38
38 Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the
Constitution to His Majesty King Mswati III, para 53
39 Principles on the Rights to a Fair Trial Principle 4(p)
40 Removal of Justices of superior courts, Section 158(2): ‘M Justice of a superior court shall not be removedfrom
office except for stated serious misbehavior or inability to perform the functions of office arisingfrom infirmity of
body or mind."
41 Principle 18 of ie UN Basic Principles
188. Judicial independence refers to the ability of courts and judges to perform their duties
free of influence or control by other actors. Whereas the notion judicial independence
is more commonly understood from the perspective of the principle of separation of
powers, judicial independence is equally impeded if Judges have reason to fear
disciplinary or other consequences due to their exercise of judicial functions.
189. One of the requirements for an independent tribunal stipulated in the Commission's
Principle!, on the Rights to a Fair Trial is that; "there shall not be any inappropriate or
unwarranted interference with the judicial process nor shall decisions by judicial bodies be
subject to revision except through judicial review, or the mitigation or commutation of
sentence by competent authorities, in accordance with the law."42 Additionally, the
principle on an impartial tribunal stipulates that; "Judicial officers shall decide matters
before them without any restrictions, improper influence, inducements, pressure, threats or
interference, direct or indirect, from any quarter or for any reason."43
.
*
v *' '1- *
>A|BB
190. Furthermore, in Zimbabwe Lawyers for Human Rights and Institute for Human
Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v.
Zimbabwe, the Commission held that: "It is impossible to ensure the rule of law, upon
which human rights depend, without guaranteeing that courts and tribunals resolve disputes
both of a criminal and civil character free ofany form of pressure or interference;" and further
that: "the credibility of the courts must not be weakened by the perception that courts can be
influenced by any external pressure."44
;
'
' '
'■ .
191. In the same vein, the Commission finds that charging the Victim with serious
misbehaviour, warranting removal from judicial office, partly on the basis of language
which he used in a written judgment, amounts to exerting influence or pressure on
the Victim. Likewise, this amounts to exerting influence or pressure on the
Respondent State's judiciary, given that this action may cause other members of the
judiciary to fear disciplinary or other consequences if they use language which is
similarly questioned, while in the exercise of their judicial functions.
192. Taking this into account, the Commission finds that charging the Victim with serious
misbehaviour, warranting removal from judicial office, partly on the basis of language
which he used in a written judgment, is an action which directly threatened both the
Victim and the judiciary's judicial independence.
193. Accordingly the Commission finds that Article 26 of the African Charter has been
violated in the present Communication.
Violation of Article 1
42 Principle 4(f), Principles on the Rights to a Fair Trial
43 Principle 5(a), Principles on the Rights to a Fair Trial
44 Communication 294/04: Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development
in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe (2009) ACHPR, para 118, 119
,. > 7-7-;--.
194. According to its well established jurisprudence, the Commission holds that "a
violation ofany provision of the Charter automatically means a violation ofArticle 1. Ifa State
party to the Charter fails to recognise the provisions of the same, there is no doubt that it is in
violation of this Article. Its violation, therefore, goes to the root of the Charter."45
195. Thus, having found violations in the above analysis, the Commission also finds that
the Respondent State has violated Article 1.
Decision of the Commission on the Merits
196. In light of the foregoing, the African Commission on Human and Peoples' Rights:
i. Finds a violation of Articles 1, 7 and Article 26 of the African Charter;
ii. Urges
U *he Government of Eswatini to
A compensate the Victim a fair Aand equitable
amount for the violation of his right to a fair trial in the Judicial Service
Commission disciplinary proceedings;
iii. Urges the Government of Eswatini to request the Judicial Service Commission to
review the charges which were laid against the Victim;
iv. Urges the Government of Eswatini to review the Judicial Service Commission's
legal framework to include a provision which allows judicial officers to seek
judicial review of the disciplinary proceedings; and
v. Urges the Government of Eswatini to review the Judicial Service Commission's
legal framework to include a provision which entitles judicial officers facing
disciplinary proceedings to object to the participation of a member of the
Commission in the proceedings and decisions of the Commission on the ground
of bias.
Done virtually, during the 33rd Extra-Ordinary Session of the African Commission on
Human and Peoples' Rights, from 12 to 19 July 2021
45 Communications 147/95 and 149/96: Sir Dawda K. Jawara v. The Gambia (2000) ACHPR, paragraph 46