Unlike many presidents who seek extensions of a constitutionally-mandated limited term of office, the chief justice of Seychelles, Mathilda Twomey, has honoured her commitment to just one five-year term and will step down later this year. Speaking at the opening of the supreme court’s 2020 legal year, the chief justice spoke passionately about judicial independence and the courage required to exercise true independence. She also urged the establishment of a law reform commission, saying efforts to make the legal changes needed in Seychelles were hindered by ‘outdated, unreformed laws’. When Judge Twomey leaves her post as chief justice, she will remain a member of the judiciary, but will focus on her work as part of the Seychellois court of appeal.
The five-year term of Chief Justice Mathilda Twomey has been tumultuous. As well as the many changes she was determined to make in the way the justice system operated in Seychelles, she had extremely difficult personal challenges to overcome on the Bench.
But she was not the only judge with serious challenges. In her address on the start of the courts’ legal year, she reminded her audience that in her first year she had spoken about the ‘hard and controversial’ decisions that had already been taken, not realizing that even more difficult decisions lay ahead.
‘Three judges were required to determine whether an incredibly popular politician had broken the law. Standing together, they determined that he had. There were legal implications … and these affected the whole nation. The constitutional court and the subsequent court of appeal case were important for our maturing democracy, showing that even the most politically charged disputes can be resolved in a transparent and public manner.’
Then she referred to what must be one of the most traumatic periods in the history of the judiciary in her country. ‘I, as chief justice, had to choose whether to ignore unacceptable behaviour from a brother judge, who was a colleague and a friend from my days at the Bar. It would have been easier to ignore it. It would have been easier, but it would also have been wrong.’
‘The judge had to face a tribunal to determine whether my concerns were valid. This decision had far-reaching ramifications, even resulting in counter-allegations against me. But again these were resolved firmly within the constitutional process.’
'Rule of law in action'
What she did not mention or spell out was the enormous toll in time and energy that these 'counter-allegations' against her had taken, with a full tribunal hearing into the counter-complaints made against her. Nor did she mention the complete exoneration by the tribunal whose members found she had acted correctly and that the allegations against her were completely baseless.
In retrospect, she described that difficult period as ‘the rule of law in action’, showing that courts and tribunals ‘can be a forum for the fair resolution of matters even when it involves one of their own.’
The chief justice also gave statistics showing that the backlog of cases had dropped significantly. In addition, the judiciary had regained confidence in itself and won back the confidence of the public. She put this down, in part, to the fact that ‘our courtrooms are open, our transcripts are available, our files can be viewed at the registries but cannot be tampered with, our decisions are public and give full reasoning. And we committed ourselves steadfastly to our judicial oaths, aware that we would be held accountable if we allowed our own ambitions to taint our actions.’
She said that the public was turning to the constitutional court ‘with greater frequency’, after that court proved itself ‘through handling so many sensitive cases with national implications over the past years, and without shying from making the hard choices.’
Cases like these demonstrated the independence and accessibility of the judiciary.
During 2020, before she left office, she aimed to focus on the court processes at the magistrates courts as well as the handling of applications and petitions in the supreme court. It could be that court sittings would be extended, given the dramatic increase in constitutional cases, she said.
A 'new sister'
Among the personnel changes she mentioned ‘a new sister’, who had been welcomed to the appeal court: Justice Lillian Tibatemwa-Ekirikubinza of Uganda’s supreme court.
Returning to her theme of judicial independence, she said it did not take a one-party state to create situations requiring courage. ‘The past five years have shown me that every day. We are all required to raise our heads above the parapet, to stick to our guns. It is courageous to find against a litigant that you might like or admire. It is courageous to file cases against the government or to represent a monster. It is courageous to write a decision that attracts public censure and it is also courageous to disagree with, or even publicly support, your colleagues. And sometimes it takes courage to admit that you are wrong – as judges and lawyers sometimes are.’
She also issued a strong challenge to the legal profession and members of the public: 'If there is a wrong in the system, do not turn a blind eye - even if you might feel that you are compromised because you appear before that judge, because the complaint is against your lawyer or colleague and even if it might affect a future appointment. The enemy to “courage” is indifference and to “commitment” is exhaustion. We must actively guard against both.'