/ 6 August 2015

Danger of embedded judiciary

Swazi journalist Bhekithemba Makhubu
Swazi journalist Bhekithemba Makhubu

Never in my wildest dreams would I have thought that in my home country, Swaziland, anyone in authority would stand up and admit to a terrible mistake for the untold suffering brought upon an ordinary subject of King Mswati, as happened when my appeal came before the Supreme Court in Mbabane, at the end of June.

This concession, by the director of public prosecutions, resulted in our immediate release from prison 15 months after human rights lawyer Thulani Maseko and I were arrested and sentenced to two years, on a charge of contempt of court.

The director of public prosecutions conceded that it had been a miscarriage of justice for Judge Mpendulo Simelane to have also presided over our trial because he had intimate knowledge of the matter giving rise to the charges, and was a witness to the crime we had been accused of.

A simple matter of a government vehicle inspector charged with contempt of court and then denied legal representation by the then chief justice, Michael Ramodibedi, had resulted in our arrest, prosecution and conviction after we criticised him for denying someone his constitutional right to legal representation.

Simelane, at the time registrar of the high court, had been the interpreter when the vehicle inspector first appeared before Ramodibedi in his chambers.

The prosecution also conceded in court that our articles had nothing to do with whether the vehicle inspector had been right or wrong in the actions he had been accused of, and acknowledged that we had confined ourselves to the question of his right to legal representation.

This turnaround by the prosecution came about because of the immense pressure, particularly from the international community, brought to bear on the Swaziland authorities for sending us to jail.

It was also brought about by a realisation that the prosecution office, which had hitherto worked vigorously to get a conviction in our trial, had been complicit in shoring up Ramodibedi’s nefarious agenda.

Swaziland is a dictatorship under King Mswati and, despite having a sound Constitution, has resisted all efforts to democratise.

Political authority remains in the hands of a privileged few and, because we are a monarchy, the royal family cannot fathom a life in which it shares power with the people. Unfortunately, ordinary people who find themselves with some form of authority see themselves as part of this elite structure that is not answerable to anyone but the king.

It is against this backdrop that Ramodibedi found fertile ground to abuse his authority and use the judiciary as his weapon to wield political power.

His behaviour was informed by a cosy relationship that has existed for many years between the structures of authority and the judiciary, culminating with the government, in 2010, winning all its cases at the supreme court in one appeal session.

There had always been an expectation between the executive and the judiciary that the one would look after the other’s interests in the governance of the country. There have been many reports that the executive regularly meets judges to influence the outcome of court cases. It is what happens in a set-up where the arms of government have an understanding to co-operate.

After all, the judiciary relies on the executive for its operations, particularly when payment of claims for judges of the supreme court are due.

As a journalist, I had caught on to the abuse of judicial process in Swaziland and had been writing about it for many years. I had also launched a lone campaign, by putting pressure on the courts, for the full recognition of the Constitution, which has a justiciable Bill of Rights.

Even though the Constitution of Swaziland is the supreme law, there has been a reluctance to give effect to the Bill of Rights.

The judiciary, under Ramodibedi, either ignored the Bill of Rights or interpreted it in such a way that those rights were never worth the paper they were written on. It was a ruse by the judiciary, working in concert with the executive, to keep the people away from participating in the governance of the country.

That is why I found it alarming when the chief justice of South Africa, Mogoeng Mogoeng, proposed to meet the president of the country, Jacob Zuma, to discuss issues to do with the recent criticism of the judiciary by the ANC.

Judges are not immune from criticism, but they should be criticised in a manner that is constructive and fair. In turn, they are expected to exercise their authority with the utmost care, bearing in mind that in a lot of instances their pronouncements have far-reaching consequences in the lives of many.

Given that they are the only branch of government of the three that is not elected, judges have to expect criticism and take it on the chin.

On the other hand, criticism of the judiciary should not be such that the judges themselves feel their security of tenure is threatened simply because they pass judgments that upset a few among the ruling elite.

A meeting of the chief justice and the president does have the tendency to create expectations from both sides and a mutual understanding that could compromise the values enshrined in the Constitution.

All branches of governance in a country must have a healthy respect for one another while maintaining their independence but be in agreement that, whatever they do, their actions are in broader society’s best interests and are not meant to serve the narrow interests of the powerful.

This is why the issue of Sudanese President Omar al-Bashir fleeing South Africa to escape a court order to have him arrested is so important. South Africa, because of its economic influence on the continent and because it is the only country in Africa with a real, working democracy, cannot afford to be seen to compromise its constitutional values at the altar of political expediency.

Not only will ordinary South Africans be the losers, but the whole continent will too, because this country stands out as the role model for democratic values that all others aspire to. When South Africa appears to struggle with its democracy, it will give dictatorships reason to hold on to their ways.

This is why one would suggest that, instead of appealing the decision against al-Bashir, the government should simply go to court and admit that a terrible mistake occurred in its failure to adhere to a court order.

An apology for the transgression would restore confidence in the leadership’s respect for the country’s democracy. If a concession to a wrong could happen in a dictatorship like Swaziland, surely a democratic government could do it too.

Bhekithemba Makhubu is the editor of Swaziland’s monthly news magazine The Nation