WHEN Judge Thomas Masuku was effectively expelled as a judge in Swaziland during 2011, human rights organisations said he had been the victim of a kangaroo court that breached international standards on fair trial.
His sacking, at the instance of the then-Chief Justice Michael Ramodibedi – since himself dismissed in disgrace – had huge potential to be a chilling effect on other members of the judiciary in that country. Why would any judge risk writing honest decisions when the chances of summary dismissal were so strong? But that expulsion was far from the end of the road for Judge Masuku, who is now a respected member of the high court in Namibia. His story should give courage to others faced with the dilemma of dispensing justice on the one hand, and fear of dismissal on the other. This month he had an interview with a journalist of the The Swaziland News, and reflected on judicial independence as well as the crucial role played by an honest, impartial judiciary in society.
This interview was first published in SwazilandNews and is republished here in full for convenience.
MBABANE - "Where the people lose confidence in the courts, then we revert to the survival of the fittest, where the muscular and the armed wield the power over others and cannot be reined in"
These were the sentiments of Justice Thomas Masuku, the highly regarded Judge of the High Court of Namibia, when responding to questions from this Swaziland News in an exclusive interview. The sentiments of the internationally respected Judge comes in the midst of concerns that the Judiciary in the Kingdom of eSwatini has been captured and justice was for sale in favor of the rich and powerful.
Justice Masuku is a Swazi Judge who once served as a consultant for the International Commission of Jurists (ICJ), a human rights organization of senior judges and attorneys who work towards developing international human rights standards through the law. In 2011, Judge Masuku was persecuted, hauled into a disciplinary hearing by the then Chief Justice Michael Ramodibedi for delivering a judgment in favor of an ordinary citizen who approached the High Court after the police sized his cattle in the name of King Mswati. The historic judgment demonstrated how the Honorable Judge was passionate about making justice a reality to those whom it was due regardless of status in society. Speaking to this Swaziland News, the Judge described the Judiciary as one of the most important organs of the State that should play an important role in adjudicating disputes and hold every person, high and low, to the constitutional and legal demands.
"The Judiciary is also the bulwark against erosion of the violation of human rights and also ensures that the other organs of State carry out their mandates in terms of the law, hence the review of powers in terms of exercise of power by the Executive organ. Courts also have been accorded by the Constitution to declare laws passed by Parliament unconstitutional” said the Judge.
The highly regarded Judge said the independence, accountability, impartiality and integrity of the courts plays a pivotal role in people and institutions submitting their disputes to the courts and respecting the decisions whether in their favor or not. Judge Masuku said where the people lose confidence in the courts, then it becomes the survival of the fittest, where the muscular and armed wield the power over others and cannot be reined in. "They become a law unto themselves and this may be a recipe for disaster and chaos, resulting in society reverting to the state of nature" he said
When asked how he managed to shine internationally after the persecution he went through under the administration of the then Chief Justice Michael Ramodibedi, the Judge said he always derives pleasure in making justice accessible to those to whom it is due, particularly the vulnerable and powerless. "The denial of justice, to which I was subjected to by the then Chief Justice, was the highwater mark of my resolve to ensure that within the confines of the law, I make justice a reality to those who appear before me, regardless of nationality, status, belief, or caste. Justice, as Themis' statue, the goddess of justice shows, must be blindfolded and that is my aim to deliver justice promptly, fairly and even-handedly, not having regard to who it is that appears but to look at what the law accords them" said the Judge.
When asked to share words of advice to young lawyers who look up to him, the Judge reminded attorneys that the law, like Divinity and medicine, is a profession that deals with people before birth, during life and after death. Judge Masuku said many people look up to lawyers to render advice and further represent them when their rights have been violated and to carry out their last will and testament after they departed from this world.
"In this process, people empty the vaults of their heart and impart the deepest secrets in the recesses of their hearts to lawyers in the belief that these will be safe and will be used appropriately. In this regard, integrity, compassion, hard work and dedication to justice and fairness, must be their watchwords. Like the Good Samaritan, they must be bothered by the injustice faced by the ordinary person in the street, even those who are maligned and given labels by society. They are the only hope of the vulnerable people. They should not let materialism interfere with service" the Judge concluded.