FOR some time, courts in Swaziland have been raising puzzled eyebrows over controversial recusal decisions made without explanation to the litigants involved. In one such case the en masse decision of a court’s members to recuse themselves has left litigants with nowhere to go, raising concerns that the right to access a legal forum to hear and decide a matter has been infringed. But now that country’s courts have made news of a more positive kind. A judge in Swaziland has done what is normal practice in other jurisdictions: he has actually given written reasons for his decision on recusal. Judge Mzwandile Fakudze’s formal recusal judgment involves a case disputing the election of an MP.
See the judgment here
THE dispute that led to an application for Judge Mzwandile Fakudze to recuse himself concerns election results. The applicants say, among other things, that a candidate recently returned as an MP was registered as a voter in the wrong constituency.
While that dispute has been making its way to a full hearing the two applicants approached Judge Fakudze, detailed to preside in the matter, to ask for his recusal. He declined to step down, saying he would give written reasons at a later date.
Three weeks later, he has now done so.
The judge said he was asked to stand down because he had “once worked with” the election and boundaries commission. The applicants argued that they feared since he was presumably involved in crafting the laws at issue in the main dispute, he would not bring an open mind to the matter.
Both the commission and the MP whose appointment is under dispute responded that the applicants appeared uncertain whether the judge in fact took part in drafting the legislation. They say judges should not help litigants who are forum-shopping, and who prefer one judge over another because they believe that they might get a more favourable hearing. There was also nothing to suggest that his previous work would influence the judge not to make an order against the commission, “bearing in mind that he is bound by the oath of office”.
As for the presiding judge himself, he went on to find that he was not obliged to recuse himself. The reasons given for him to stand down were “speculative” and “remote”, while the application lacked “cogent and convincing evidence”.
The judge’s actual reasons stretch over five paragraphs and he cites three earlier decisions in reaching his conclusion. He found that a judge, “as a trained lawyer”, was helped by counsel for both parties in deciding an outcome. “Statutory interpretation is part and parcel of legal training for any lawyer,” he said. “This consideration applies to the present application.”
Leaving aside the merits – the judgment might be taken on appeal – there are a couple of noteworthy features in the decision. It is intriguing that the judge did not clarify whether he was in fact involved in drafting the legislation that will be considered in the main application. He simply noted that the issue had been raised by the applicants, that it seemed they were not sure about their facts, and then dismissed this as a basis for a recusal application.
It is also odd to read the judge repeatedly referring to himself in the third person and using capital letters for the relevant pronouns. For example, “the applicants want Justice Fakudze to recuse Himself (because) He once worked” with the commission. He refers to himself as “I”, as other courts would typically do, in just one paragraph: “I heard the application (and) I indicated that reasons … would follow later.”
But most noteworthy of all, however, is the mere fact that a court in this jurisdiction has given a written decision explaining a recusal decision. In view of the recent history of recusal decisions, this is a most welcome development and an example that other judges should follow.