The legal profession â€“ a leading voice in the defence of the rule of law
The Director of Proceedings, my Lords, and Ladies, members of the legal profession allow me to express my gratitude to the organisers of this event, for the opportunity to share some thoughts on the assigned subject matter.
It is perhaps in order to assert at the commencement of our conversation that the rule of law as a concept is elastic; and its precise boundaries unclear and even contested. Scholars, judges, lawyers and politicians have often found it difficult to define it, and even struggled to reach consensus, about its meaning.
What can hardly be contested, however, is the fact that the rule of law is indispensable to a proper functioning of a democratic society. Lord Bingham, arguably one of the greatest judges of our time – and “perhaps the most significant judicial figure among the long line of notables in the history of the Anglo – Saxon legal systems”, identified eight principles to define the rule of law, consisting of clarity and certainty of the law, the use of law rather than discretion, equality before the law, the proper exercise of power, respect for human rights, access to the dispute resolution for all, fair trial and respect for international law.
The World Justice Project, an independent multi-disciplinary organisation working in the area of the rule of law, after consulting leading global experts in the area, has come up with four principles that constitute a working definition of the rule of law. These are: (1) Accountability, which posits that the government as well as private actors are accountable under the law; (2) Just laws – which requires that laws are clear, publicised, stable and just; are applied evenly; and protect fundamental human rights; (3) Open government, which holds that a process by which laws are enacted, administered and enforced are accessible; fair and efficient and lastly, (4) Accessible and impartial dispute resolution which means that justice must be delivered timely by an independent and impartial members of the judiciary, which must be adequately resourced and reflect the make-up of the communities it serves.
An independent and fearless legal profession is vital to the existence of the rule of law. At the heart of the rule of law, is an independent and fearless judiciary. It should be a well-resourced judiciary that reflect the community it serves. Both the legal profession and the judiciary must be committed to respecting, protecting and fulfilling rights of every person – leaving no one behind.
Of recent, the SADC region, has been a site of vicious contestation in defence of the rule of law – more particularly, in defence of the principles of fair trial and the independence of the judiciary. In some parts of Africa, the phenomenon of cadre Judgeship, in which the executive packs the courts with its cadres and foot soldiers is becoming a major concern; and so is the phenomenon of the politicisation of the judiciary and the judicialisation of politics, which if not properly managed may endanger the rule of law and subvert the democratic project in our region – which is very much work in progress.
The legal landscape in the region is littered with examples of concerted litigation in defence of the rule of law, in Botswana, Lesotho, Swaziland, Zambia, South Africa and many other countries. I will cite a few examples in some countries in Africa to illustrate the role the legal profession has played in protecting and advancing the rule of law in the region.
In Botswana, the LSB has been outspoken in advocating for the independence of the judiciary; a transparent and merit-based system of appointing judges; localisation of the apex court; that the judiciary must reflect the communities it serves; that law should be applied in an even handed manner. All of these calls constitute international best practice and may go a long way in strengthening the rule of law.
I hope in time they will speak more about the rights of the minorities and the marginalised without fear of any backlash from the public. I hope in time they can roll out more widespread and sustainable probono services to promote access to justice by the poor and the indigent. When it comes to matters of law and justice, the legal profession, like judges should be no respecters of persons, but the law. They should represent any client deserving of their services irrespective of irrelevant considerations such as colour, creed, political, religious or tribal affiliation.
I can personally testify to the LSB fearlessness and independence because they have not spared us the rod when they thought we erred or had abandoned principle. After all, we are not sacred cows! We are not infallible. We make mistakes. In a properly functioning judicial system, the citizenry has the assurance that the apex court would pick any mistakes of the lower courts and correct them; and because no appeal lies against the decision of the highest court, that is the more reason why such a court must be made up of men of women of undoubted legal knowledge and integrity; appointed in an open and transparent manner. No court, not even the apex courts in our region are infallible. Our apex courts are not final because they are infallible, but, to paraphrase Justice Robert Jackson, they are infallible only because they are final.
Our judiciary has on the whole performed well in defence of the rule of law. Even in periods of turbulence and debilitating darkness there have been sparks of brilliance emanating from our courts – reinforcing the view held by many lawyers that when all else fails, the judiciary must be the last line of defence. The US has had the Brown v Board of Governors moment; South Africa, State v Makwanyane and Glenister moment and we have had in this country our own Dow, Ligabibo, Motumisi, Mmusi moment and much more! All these cases brought by fearless pro-rights lawyers have advanced the rule of law. Lord Bingham would have been happy to know that in all the above cases, international law and comparative law was used to good effect to yield a decision that would promote the rule of law.
It is sufficient, to speak of the role of the LSB in these terms only given my limitation as a sitting judge of the republic.
I turn now to speak briefly about the role of the law society of Swaziland when issues of fair trial and the independence of the judiciary where on trial in that country. This was in cases involving Thulani Maseko, Makhubu and Justice Masuku.
First, the story of Thulani and Makhubu. Thulani, Makhubu and Others were charged with two counts of contempt of court. They were all convicted and sentenced to two years imprisonment without an option of a fine. The case raised important issues of fair trial, the independence of the judiciary and the right to freedom of expression and the media. A report by the ICJ, entitled: “Unfair Trial, Arbitrary Detention and Judicial Impropriety in Swaziland” concluded that the arrest, detention, trial, conviction and sentencing of the defendants involved “multiple violations of the Constitution of the Kingdom of Swaziland, the African Charter on Human and People’s Rights, the Principles and Guidelines to a fair Trial in Africa and the International Covenant on Civil and Political Rights.
And whilst, there will always be those in our ranks who will choose to hear and see no evil, to fence sit or support, by silence or inertia, an unjust status quo and not take a stand against injustice to fellow human beings, as indeed happened in both cases of Thulani, Makhubu and Justice Masuku, history would record that the voice of the law society in Swaziland and indeed that of the SADC Lawyers Association, against, what the Supreme Court in Swaziland later, called a travesty of justice, was loud and clear.
Members of the Law Society of Swaziland (LSS) as well as the SADC LA, stood firm to support Thulani, Makhubu and Justice Masuku. Not only did lawyers provide moral support, they pledged financial and material support, including starting up a campaign, the Release Thulani Maseko Campaign, effective around the SADC region. During this time, lawyers became not just sayers of the word, they were actually the “doers of the word,” as the Scripture tells us. Had it not been for these lawyers, who stood up for what is right, there can be no question that Thulani and Makhubu would have been kept in jail until the very last day of their sentence.
There can be no doubt that if the rule of law is to flourish, there is a great need to protect the independence of the legal profession, who in turn, must defend the rule of law. Geoffrey Vos QC writing on the Independence of the judiciary and the legal profession puts it very well when he says, “A fearless legal profession is vital to the existence of the Rule of Law.”
The case of the persecution of Justice Masuku, my revered friend and luminary of our time, is well documented. In 2003, without any warning or hearing, Justice Masuku was ‘transferred’ from the High Court and posted to the Industrial Court as judge, an appointment he refused to take, as it was unconstitutional. The narrative was that he was to be moved to a court perceived to be less political so as to remove him from making judgments that were inimical to the interests of the Government.
The Law Society of Swaziland challenged his removal and appointment in the Industrial Court and also challenged the appointment of the two judges in court.
Because of the challenge to the appointment of the two Justices mentioned above by the Law Society, took a resolution not to appear before the two judges as their appointments were then under challenge.
In 2011, when Justice Masuku was suspended and eventually removed, the Law Society took a decision to boycott the courts for a staggering three months. A petition for the removal of the Chief Justice was sent to the JSC, and lawyers marched in their numbers in the streets of Mbabane wearing their court regalia in defence of the rule of law and the independence of the Judiciary.
I am advised that about a year ago, the Law Society also took a stand regarding the appointment of foreign judges in the SC together with appointing some senior legal practitioners as acting SC judges. This was seen as not only unconstitutional, but as a threat to judicial independence as the acting appointments went on unabated with no moves to appoint permanent judges.
The Law Society took a resolution that none of its members would be available to take acting appointments in the Supreme Court and called upon adherence to the constitutional imperatives regarding the appointment of permanent members of the SC. The government eventually succumbed and local permanent members were appointed to serve on the Supreme Court.
South Africa has a plethora of cases that makes one proud to be a servant of the law. I will mention only the recent case in which lawyers at SALC brought before the South African Courts to advance the rule of law. This was the case involving President Omar al Bashir of Sudan.
In June 2015, President Omar Bashir arrived in South Africa triggering South Africa’s domestic and international law duty to arrest him and hand him over to the ICC in The Hague. President Bashir is wanted for war crimes, genocide and crimes against humanity and there are two international arrest warrants, issued in 2009 and 2010 respectively. Despite the existing arrest warrant, upon his arrival on South African territory, President Bashir was not arrested and in light of these developments the Southern African Litigation Centre approached the North Gauteng High Court to implement the arrest warrant (SALC 2017). The court ordered that he be arrested. The South African government allowed President Bashir to leave despite the court order. The government took the matter on appeal to the Supreme Court of Appeal where the SCA also ruled that failure to arrest Bashir was unlawful.
The SALC must be commended for their relentless effort to hold the government accountable and to comply with its international obligations. No government should be allowed to act with little or no regard for the rule of law and the Constitution. It is a matter of duty and indeed pride that lawyers should be at the forefront of protecting human rights and fighting for justice for victims of genocide, war crimes and crimes against humanity. No government should be allowed to side with suspected perpetrators of grave violations of human rights.
I have spoken about how the legal profession has led from the front in protecting the rule of law in our region and confronted the challenges that threatened the rule of law. Whilst the legal profession has done extremely well so far, they cannot afford to relax their vigilance. There are many more opportunities that may be exploited to advance the rule of law.
The legal profession must speak and take action about social injustice that is pervasive in our region. Our region is plagued by the triple burden of unemployment, inequality and poverty. Corruption is rampant. Part of the causal factors of poverty relate to illicit financial flows that are depriving our region of the funds to finance developmental projects that can uplift the poor from conditions of squalor and abject poverty.
We need to pay more attention to socio-economic rights than ever before; for nothing is as dehumanizing as poverty. Increasingly, the democratic space in our region is shrinking. The legal profession must take the lead in ensuring that the democratic space is expanded and the rights of the people to associate, organize, and express themselves freely is not compromised.
Opportunities to fight for human rights abound in the area of the Law, HIV and TB. Many people living with HIV and TB are stigmatized and discriminated and their humanity demeaned. The legal profession must speak out on these issues. The legal profession must also speak out on the rights of minorities and the marginalized – ensuring that in matters of rights no one is left behind. The phenomenon of Gender Based Violence that is costing our region staggering amounts of money needs to be confronted head on by the legal profession.Finally, and not least, opportunities abound in the area of international law for the legal profession to be involved. Whilst our countries have signed and or ratified international treaties that advance human rights the record of domestication and implementation is alarmingly poor.
I conclude by encouraging you to remain true to the cause of justice. I ask you never to dishonour the cause of justice and what is right. Without an independent and fearless legal profession our rights as individual human beings are in peril; our democratic project in jeopardy and our development bound to be still born. To do this job well you need more than a law degree. You need conviction and lots of courage. Your job is perilous because it occasionally pits you against powerful power blocks, but it has to be done nonetheless. Thank you for your attention.
* Judge of the High Court of Botswana and Residual Special Court of Sierra Leone, Extra-Ordinary Law Lecturer, University of Pretoria and Professor of Public Law, University of Cape Town, Co-Chair of the Think Tank on HIV, Health and Social Justice in Southern and East Africa and President of the Africa Judges Forum on HIV, the Law and Human Rights.