Today the ICJ wrote to the Minister of Justice of Eswatini requesting that the Eswatini authorities provide information on the steps they had taken to implement the decision of the African Commission on Human and Peoples’ Rights (the African Commission) during the 33rd Extra-Ordinary Session, held from 12-19 July 2021 and published on 6 April 2022, finding that the State had been in breach of the African Charter in its conduct surrounding the removal from judicial office of Justice Thomas Masuku.
The Commission, in the decision of 6 April 2022, found that the Kingdom of Eswatini breached its human rights obligations to ensure a fair trial and an independent judiciary in the case of Justice Thomas Masuku’s impeachment and removal from the Eswatini High Court.
On 28 June 2011, Justice Masuku received a letter from the Chief Justice informing him of an inquiry against him. Among the 12 charges leveled against Justice Masuku, the late Chief Justice and Chairperson of the Judicial Services Committee (JSC) Michael Ramodibedi accused Justice Masuku of insulting King Mswati III by using the words “forked tongue” in a written judgment issued by him in the High Court. After a closed hearing, of the JSC, Legal Notice No.88 of 2011 was issued, removing Justice Masuku from office.
“The targeting of Justice Masuku for the execution of his judicial mandate resulted in a grave injustice against him personally and caused serious damage to the rule of law in Eswatini”, said Kaajal Ramjathan-Keogh, ICJ’s Africa Director. “Even though the leadership of the Eswatini judiciary has changed in the years since the complaint was filed at the Commission, the decision provides for the opportunity of long-delayed justice to Justice Masuku and authoritative determination on what the Eswatini authorities must do to fulfill its obligations to continually ensure an independent judiciary and fair administration of justice”, she added.
The African Commission found that Eswatini had violated Articles 7 (right to a fair trial), and 26 (independence of the judiciary) of the African Charter on Human and Peoples’ Rights, as interpreted with reference to the African Commission’s Principles and Guidelines on the Rights to a Fair Trial and the UN Basic Principles on the Independence of the Judiciary.
Having established these violations, the Commission recommended that the authorities provide compensation to Justice Masuku and ensure that the JSC review the charges against him. In terms of wider reforms necessary, the Commission recommended that Eswatini review the legal framework applicable to the JSC to ensure that judges have access to judicial review of JSC decisions and to permit judicial officers facing disciplinary proceedings to object to the participation of a member of the Commission on the ground of bias.
Eswatini has yet to issue any public official response to the African Commission’s decision, and nor do they appear to have taken any apparent steps to ensure Eswatini’s compliance with the Commission’s recommendations.
“The ICJ welcomes the African Commission’s decision and urges the Eswatini authorities to implement its recommendations to strengthen judicial independence in the country. The independence and impartiality of the judiciary is fundamental to the rule of law and human rights, including the right to a fair trial, and to an effective remedy for violations of human rights”, concluded Ramjathan-Keogh.
Justice Masuku provided the following comment to the ICJ:
“It is not every day that one finds Communications from the African Commission dealing with critical aspects of the judicial office. I note with satisfaction the clear and unequivocal message conveyed by the Commission in Communication 444/13 regarding the independence and impartiality of individual judges and courts in the execution of their constitutional mandate. I have noted that some Judiciaries on the continent have embraced the jurisprudence contained in the Communication and have adopted the trite learning it provides on a practical rather than a theoretical basis. The submission of the Complaint to the African Commission was thus not in vain. It has provided tangible deliverables, namely the clear guidance on the proper approach to impeachment of judges in terms of personnel, process, and procedure, having proper regard for the independence and impartiality of the judicial office in a constitutional State.”
The Communication (Communication 444/13) submitted by Justice Masuku (the Victim), represented by Lawyers for Human Rights, Swaziland, a longstanding partner organization of the ICJ, and later supported by Professor Michelo Hansungule an ICJ Commissioner, was received by the Commission on 11 April 2013. The Commission’s decision was therefore issued some nine years after the initial submission.
In addressing the violation of Article 7 of the African Charter, the Commission concluded that Justice Masuku’s right to a fair trial was violated because he had a right to appear before an “impartial, independent, and competent tribunal”. This right was compromised by the Chief Justice’s participation, and the JSC’s unlawful denial of Justice Masuku’s request for a public hearing.
In terms of Article 26, the Commission concluded that the treatment of Justice Masuku constituted a threat to the judiciary’s independence more broadly. In particular, the Commission found that the initiation of disciplinary proceedings against judges based on language used by them in a judicial decision amounted to an interference with judicial independence.
Eswatini noted in its submissions that “progressive steps” had been taken to strengthen the independence of the judiciary, including the appointment of permanent High and Supreme Court judges, the removal of two judges, including the late Chief Justice Ramodibedi, who were found to have compromised the independence of the judiciary, and the removal of the Practice Directive No.4/2011 that effectively banned civil litigation against the King. The State also underscored that it had since changed the rules to ensure that impeachments of Justices of the Superior Courts by the JSC were held publicly.
The changes did not appear to have protected another judge, Judge Sipho Anthony Nkosi, who was removed from the High Court in 2022 following a closed, non-publicized impeachment process. The charges laid against Judge Nkosi included alleged absenteeism, failure to deliver judgments, late arrival at court and bringing the administration of justice into disrepute. Judge Nkosi is the fourth judicial officer to be removed after Judge Thomas Masuku, Mpendulo Simelane and the late Chief Justice Michael Ramodibedi who, after impeachment, were removed as judges of the High Court of Eswatini in September 2009 and June 2015, respectively. Judge Nkosi will be the fourth judge to be impeached in Eswatini in 10 years, which is the rate highest in Southern Africa.
Read the African Commission decision here.
Download the letter here..
Kaajal Ramjathan-Keogh, Director – ICJ Africa Programme, e: Kaajal.Keogh@icj.org
Mulesa Lumina, Communications and Legal Officer – ICJ Africa Programme, e: Mulesa.Lumina@icj.orgAdvocacyWeb stories