Crucial Seychelles fact-finding mission by Southern African Chief Justices’ Forum issues report

23 February 2019 · Carmel Rickard

WHEN the Southern African Chief Justices’ Forum heard that one of their members, Chief Justice Mathilda Twomey of Seychelles, was to face an inquiry and possible removal for alleged misconduct the forum asked the government of Seychelles to allow a fact-finding mission. The investigation into the chief justice was particularly troubling as this as it was the second current investigation into a senior judge in Seychelles. The SACJF wanted to inquire into the state of judicial independence, accountability and security of tenure among other issues involving judicial officers in that country. Now the forum has released its report into that visit, with a useful summary of the contesting views they were given and a number of significant recommendations.

Led by the SACJF chair, Namibian Chief Justice Peter Shivute and deputy chair, Malawi Chief Justice Andrew Nyirenda, the mission noted that Seychelles moved from a one-party state, to a multi-party democratic constitutional state in 1993.

During their visit they met a wide range of stakeholders who shared with them the dominant perceptions about the charges against the two senior judges: that they were politically motivated investigations, but from opposite sides of the political divide.

There was also a view that the chief justice was being investigated as “punishment” for having acted firmly against certain lawyers in her efforts “to enforce discipline, ethics and professionalism” among legal practitioners. This is because the CJ has responsibility for regulating the legal profession.

On the question of judicial independence, most of those they consulted held the view that “the major source of threat” to judicial independence was “the behaviour and attitude of some politicians” who expected that judges should deliver decisions favouring their interests, rather than in accordance with the constitution and the law. When judges’ decisions went against political interests they experienced “victimization” including public criticism, being reported for possible investigation and even threats of violence. At times politicians also withheld funding from the judiciary in retaliation.

Certain other stakeholders claimed that some judges tended to deliver decisions aligning with political interests rather than the rule of law. This perception was increased because some judges had originally held office in political parties.

The SACJF said it could not establish the veracity of these particular submissions it was clear that even though the constitution of Seychelles guaranteed judicial independence, it needed to be protected.

The report lists a number of recommendations for consideration by Seychelles, chiefly to include the Chief Justice as an ex officio member of the Constitutional Appointments Authority and to consider reforms that would ensure the legal profession was independent in accordance with accepted best practice.

The full report is available on the SACJF website here

Carmel Rickard

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