Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter. The commission has also urged that the government of Eswatini compensate Masuku for the violation of these rights and that it take other steps to amend the situation.
Any reader of the decision by the African Commission on Human and Peoples’ Rights on the complaint by jurist Thomas Masuku is taken back in time to the era when controversial, disgraced judge, Michael Ramodibedi, was Chief Justice in Eswatini.
Ramodibedi, who died in 2019, left behind judicial chaos in Eswatini and in Lesotho, where he was also Chief Justice, with the judiciary in both still struggling to repair reputational damage. In Eswatini particularly, where the run-in with Masuku came to a head, Ramodibedi committed gross errors that have now come under the magnifying glass of the African Commission. Perhaps one of the gravest of these errors was his blatant lack of independence in relation to King Mswati III, seen partly in the way he recast the judiciary as a servant of Mswati in both his personal capacity and as political head of state.
In June 2011, Ramodibedi, whose position as CJ meant he headed Eswatini’s Judicial Service Commission (JSC), laid charges against Masuku, and had him suspended pending an inquiry. Then, during September 2011, Masuku was removed as a high court judge by Mswati on the recommendation of the JSC.
That JSC inquiry, conducted in camera despite Masuku demanding a public hearing, involved Ramodibedi as complainant and as judge. One of the counts on which Masuku was charged at the JSC, and one which came to prominence again in the African Commission’s decision, concerned a remark made by Masuku in the course of a judgment, using the words ‘forked tongue’ when writing about Mswati. It obviously didn’t matter to the JSC that what Masuku actually wrote was that Mswati did not speak with a ‘forked tongue’.
Here’s how the JSC dealt with it in finding Masuku guilty: Although the judge had written in the judgment that he ‘did not believe that the king could speak with a “forked tongue”, it is the very use of those words which constitutes an insult. … Such inappropriate and uncalled for language can only be explained on the basis of malice’.
One of the complaints made by Masuku to the African Commission was exactly this: he had been removed for something that formed part of a written judgment. In response, the commission said it was of the view that instituting disciplinary proceedings against a judge based on language used in a judgment did not constitute ‘serious misbehaviour’ – the only grounds for which judges may be suspended or removed from office. ‘Rather, this charge amounts to interference with (Masuku’s) judicial independence.’
Charging him with behaviour so serious that it warranted removal from judicial office partly on the basis of language which he used in a written judgment, ‘amounts to exerting influence or pressure’ on him, thus undermining his judicial independence.
But, added the commission, it also amounts to pressuring the rest of the judiciary, ‘given that this action may cause other members of the judiciary to fear disciplinary or other consequences if they use language which is similarly questioned, while in the exercise of their judicial functions.’
The commission therefore concluded that charging Masuku with serious behaviour warranting removal from office, partly on the basis of words he used in a written judgment, ‘is an action which directly threatened’ the judicial independence of both Masuku and the rest of the judiciary. Thus, it was clear that Article 26 of the African Charter, on the independence of the courts among other issues, had been violated.
The African Commission also dealt, at some length, with Masuku’s claim that he could not ‘exhaust local remedies’ before he turned to it for help, as required by the commission’s normal procedure. Again, Ramodibedi stood at the heart of the problem: he had instituted a practice directive barring any legal action from being brought against Mswati: ‘Summonses or applications for civil claims against His Majesty the King and iNgwenyama, either directly or indirectly, shall not be accepted in … any … court’.
Since Masuku had been dismissed by an act of Mswati, it was not possible to bring any legal action to challenge it. The African Commission was satisfied that this practice directive by the CJ meant there were no ‘domestic remedies’ available to Masuku, and the requirement to ‘exhaust local remedies’ did thus not apply.
One of the most interesting aspects of the decision is the response of Eswatini to the claims brought against it by Masuku. It urged the commission not to find in Masuku’s favour, saying Eswatini had in the meantime changed the rules so that impeachment hearings of judges would be held in public as Masuku had requested. Eswatini said this change to the rules could be seen in the impeachment process against Ramodibedi himself along with another judge, ‘who were found to have compromised the independence of the judiciary’.
Eswatini also quoted other ‘progressive steps’ that it had meanwhile made to strengthen the independence of the judiciary in that country, including ‘the removal from office of the then Chief Justice’, ‘found to have compromised the independence of the judiciary’, as well as removing the practice directive that prohibited litigation against Mswati.
Eswatini further asked the commission to recommend that the parties resolve the dispute ‘amicably at the domestic level’, since it involved a ‘contractual’ matter, rather than agreeing to Masuku’s request for reinstatement.
In the end, however, the African Commission found three articles of the African Charter had been infringed in the way that Masuku had been treated, and ‘urged’ the government of Eswatini to compensate him ‘a fair and equitable amount’ for the ‘violation of his right to a fair trial in the JSC disciplinary proceedings’. The commission also urged Eswatini to request that the JSC ‘review the charges’ it brought against Masuku. This is presumably something that Masuku would want so his name could be officially cleared in Eswatini.
Outside of Eswatini, however, the decision of the African Commission will merely confirm what has been long understood and accepted in other jurisdictions: Masuku’s sacking was a gross violation of his rights as well as a blow to judicial independence; further, it underlined his own integrity and his commitment to both human rights and the independence of the judicial institution.
* A former colleague of Masuku was one of many people who welcomed the African Commission's decision. He said that the judge was a 'man of consummate integrity, honour and wisdom' and that it was a pleasure to see his good name and reputation restored by the Commission. Reports that Eswatini officials had said that they would seek to have the decision 'overturned', have been met with disbelief, since it is understood that, by their very nature, such advisory decisions are not amenable to being overturned.
* 'A Matter of Justice', Legalbrief, 12 April 2022