In his book In Pursuit of Justice: Examining the Intersection of Philosophy, Politics and Law, Justice Oagile Dingake a Justice from Botswana now based in the foreign land of Papua New Guinea says “The vocation of a judge was once described as something akin to priesthood”.
He says today the idea that judgeship is akin to priesthood subsists because of the belief that judges epitomise righteousness, fairness and justice.
Justice Dingake in his deep and thought-provoking book for any lawyer and judicial officer writes that, “Acceptance of the calling is similar to going into monastery – a place of worship occupied by monks living under religious vows”. This is the high standard upon which judicial office used to be regarded and should be regarded.
Indeed, law and politics cannot be separated.
Political ends are achieved through the means of the law. It is the law that determines the end. Justice Dingake’s book makes interesting reading on the interplay between the law and politics. For example, the law was used as the means to prohibit effective and meaningful participation of the vast majority of Swazis in the constitutional review and constitution-making process.
Over centuries, oppression has been perpetuated and sustained through the vehicle of the law throughout the world. Rule by law, and not the rule of law kept undemocratic regimes in power as it is in Swaziland today.
I do observe even if I do so at great risk that one wonders and one doubts if this is the view that should be accorded to some of our judges in Swaziland (eSwatini). First and foremost, the manner of appointment is deeply problematic and deeply concerning.
Second, the recycling of acting judges so that they have assumed a de facto permanent position does not sit well with judicial independence, impartiality and accountability. I do not hesitate to say so even if I do so many times, even if I do so alone. In recent times, there is plenty overlap of the law and politics in our judiciary. We can speak much of the politicisation of the judiciary and not so much the same way of judicialisation of politics. The fact that some judges hold dual roles in political circles speaks volumes about the politicisation of the judiciary.
Quite tellingly, Justice Dingake reminds us that, “The values of any civilised society based on the rule of law and democracy depend, to a greater extent, on the faithful performance of judicial duty”. Justice Dingake says that, “In the course of his/her duties, in a country where the Constitution is supreme, the judge must only know and apply one morality – the morality of the Constitution, where every person is equal in the eyes of the law.
No one, no constituency, no power block, traditional, religious or otherwise must stand above the Constitution”. I have emphasised ‘traditional’ because Swaziland is indeed a deeply traditional society, its entire body politic, including the so-called supreme law is premeated by deeply entrenched traditional values, often subverting the rule of law.
Some judges with serious traditional backgrounds and connections sit in the apex Court. It may be wondered whether the question of conflict does not arise.
It is significant to note the Swaziland Constitution entrenches the universal values of the rule of law, democracy and human rights. Yet it is one thing to have these in a Constitution; it is quite another to give meaning and effect and to actually practise same.
The question that arises is this: what kind of a judge epitomises priesthood in the manners espoused by Justice Dingake?
Personally, I have had the pleasure and privilege of knowing and interacting with Justice Dingake in various meetings; regional and international under the auspices of the International Commission of Jurists (ICJ) where like Justice QM Mabuza, he is a Commissioner. I have found Justice Dingake to be a deeply independent, impartial and engaging judge.
He is soundly intellectual, intelligent and courageous. In his own words Justice Dingake says that “As is often said, the value of the judiciary lies in its members’ intellectual insight, impartiality and integrity”.
I will not pass judgement on whether members of our judiciary pass this master test.
To my mind Justice Dingake is in the same league as our own Justice Thomas Masuku. Like Justice Dingake, Justice Masuku was jettisoned by his own country and as we know sits as one of the best Justices in the High Court of Namibia, Windhoek.
The problem with African leaders: they do not like their own independent citizens who do not toe the line. Swaziland does this to its own people. Way before the arrival of Makhulu Baas, Justice Masuku fell out of favour with the leadership of the country because of his fearlessness, independence and impartiality. Swaziland dislikes independent minds.
I remember vividly Justice Dingake addressing the Southern Africa Development Community Lawyers Association (SADC-LA) at the height of the judicial crisis during the tenure of Ramodibedi CJ.
Speaking on judicial independence, impartiality and accountability he reminded the gathering the Chief Justice of a country is simply the head of the judiciary; he is the first amongst equals.
He is therefore not the boss in the strict sense. In our jurisdiction we have had the unfortunate situation where Chief Justices treat their judges who are their equals, as subordinates.
The truthfulness of Justice Dingake’s statement find support from Judge William who writes that “A judge’s freedom from pressure refers to freedom from external pressure, regardless of the source. Personal independence in independence from relatives and friends, independence from litigating parties and the public, independence fron fellow judges and judges responsible for managing the system (inluding the president or chief justice of the country), independence from office holders in other branches of government”.
Jude Birtles goes on to say “The judge’s master is the law. The judge has no other master. From the moment a person is appointed as judge, he [she] must act without any dependence on another.”
It is deeply concerning that most of the men who have ascended to the high office of Justice of the Superior Courts, particularly the Supreme Court have done so through
It is a long established principle that one of the tenets of judicial independence is a credible process of appointment resulting in the security of tenure of judicial officers.
Of course, such security of tenure must be obtained through lawful means. The problem of a lack of a transparent process of appointment of judicial officers is that perhaps not the best of our legal minds get to be appointed.
For example, one of the young acting Magistrates in Manzini is known for not reporting for duty on Mondays. He simply calls the Clerk of Court and informs her that she should advise lawyers, many of them who are even far senior to him to come the following day in Court for matters to proceed.
We hear there is a High Court Judge with exactly similar tendencies. So much for a profession akin to priesthood in Swaziland.
The critical issue is this: unless and until the Judicial Service Commission (JSC) rises to its constitutional duty and mandate of appointing judicial officers in an open, transparent, and competitive manner the high judicial standards will continue dropping and going down the drain.
There is of course a growing perception that the recycling of acting appointments has developed into some kind of judicial cronysm and patronage at all levels of the judiciary, starting all the way from the apex Court, i.e the Supreme Court, High Court, Industrial Court and the Magistracy.
The fundamental issue is whether a judicial officer who ascends to the bench through unlawful means, being appointed via a way that undermined the very Constitution, he or she would uphold the Constitution upon assuming office? It really blows one’s mind how lawyers accept the violation of the supreme law, when they should be the first line of defence in seeking to uphold it.
It is worth remembering that at the height of the judicial crisis that Chief Justice Ramodibedi created with his cronies in the Supreme Court, it was the Law Society that decried the looting of the country’s resources when the then Chief Justices used judicial mercenaries and his cronies from other jurisdictions that eventually undermined the dignity and integrity of the judiciary.
If such judicial mercenaries and judicial looting was wrong then, it is hard to see how it can be correct if and when it is perpetuated by our own citizens.
On the question of giving life to the Constitution, Justice Dingake makes it plain that “the role of giving life to the foundational values is a clear function of the courts; and should not be subject to any debate”.
There can be no question that in order to give meaning and effect to the foundational values of the rule of law, human rights, good governance and human rights, the judiciary must be properly composed within and in accordance with the spirit, tenor and letter of the Constitution.
Some well-meaning lawyers approached and asked me how it happens that Justice Benjamin Odoki of Uganda is back as a Justice of the Supreme Court. I was taken aback. There are two issues regarding the return of Odoki JA in our apex Court; first he reached retirement age.
Second, there is a clear provision in section 157(1) of the Constitution that “A person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years from the commencement of this Constitution.” For all we know, when his time to vacate office Justice Odoki resisted.
He had to and was pushed out resisting, kicking and screaming. His continuation in his own country as Chief Justice had come to an end when the long-serving President Museveni sought to extend.
There is a judgement to this effect. How the JSC could bring back such a man defeats logic and reason. This can only mean one thing and one thing only: the JSC has no sense of appreciation of its constitutional mandate, duty and obligation.
Without sounding xenophobic about it we should find this to be an insult against Senior High Court Justices and lawyers that the JSC should find it fit to bring back a Justice whose time had ended and whose appointment is prohibited by the supreme law. Such a decision offends the very idea of constitutionalism and the rule of law that the Constitution guarantees.
We deserve an explanation from the JSC as to how this could happen. So, in this country, we take one step forward and three steps back to reverse whatever progress may have made. One wonders when we shall have faith in our own people, just do the right thing and take the right decisions.
We do need to have their ‘Lordships’ and ‘Ladyships’ who will epitomise priesthood, if justice is to roll down like waters.
A lawyer and judge who seek to pursue justice would do well to read Justice Dingake’s book.
It is worth it. It is a mirror upon which legal practitioners and judicial officers may look at themselves whether we honour the honourable profession of all times.
If we are to continue the faith in the judiciary, Justice Dingake puts it very well: “For the judiciary, public confidence is its life blood”. And on the interplay between law and other disciplines he says that “… judges must be able to recognise the relationship between law and other disciplines, especially politics, philosophy and sociology”.
Those of us who are vilified for speaking out take comfort in the fact so historically true that no condition is permanent. The winds of change continue to blow, sluggishly sometimes; but they blow.
*Thulani Maseko is a lawyer in the Kingdom of eSwathini and secretary general of the Law Society. He writes the article in his personal capacity