Test of judicial impartiality, independence, for Eswatini judges

27 August 2021 · Carmel Rickard

A case pending before the Supreme Court of Eswatini, and due for hearing at the end of August, could be a crucial test of judicial independence in the country. Lawyers involved in the case say at least three of the five judges due to preside when the case is called, are candidates for recusal. The appeal is due to deal with a high court’s declaration that key sections of Eswatini’s terrorism and sedition laws were unconstitutional. Even before the appeal is called, however, a prominent litigation organisation has also expressed its concerns about the composition of the bench. The Southern Africa Litigation Centre (SALC) says that two intended members of the supreme court bench, slated to hear the matter, were involved in the case at the high court level and could thus not sit in the appeal.

Read the high court decisions

At issue in the pending appeal is a crucial majority decision in the high court, finding that essential elements of Eswatini’s terrorism and seditions laws were unconstitutional.

But the appeal against that judgment, originally made in 2016, has not been able to be heard because of the shortage of supreme court judges in Eswatini.

In 2019 the supreme court had planned to deal with the appeal, but could not do so because there were not enough judges available who could hear the matter – several members of that already small bench were in one way or another associated with the issue and would have had to recuse themselves.

‘Partial’

Now the appeal is set for hearing on August 30, but the Southern Africa Litigation Centre (SALC) has warned that the problem of whether there are judges who can hear the case has not gone away.

According to SALC’s executive director, Anneke Meerkotter, this time around, on August 30 when the appeal is due for hearing, ‘there is a strong likelihood that at least two of the judges on the bench will again be partial’.

‘Two supreme court judges, [who are] former attorney generals, actually deposed to the answering affidavits of the state in the high court matter, with one of them even drafting the arguments presented by the state in the high court.

‘No reasonable person could ever accept that a deponent to an affidavit in a case could later sit as a judge in the same case.’

Composition

Meerkotter urged the Eswatini judiciary to ensure ‘that the composition of the supreme court bench [in this appeal] is properly constituted’ by judges whose impartiality was not in question.

She said that in the current appeal ‘there is a real risk that the fair trial rights’ of the group, charged under the contentious laws declared unconstitutional by the high court, ‘will be imperilled if the two judges do not recuse themselves.’

In March 2019, the last time an attempt was made to constitute a bench to hear the appeal, the chief justice, Bheki Maphalala, said that there were not enough supreme court judges to hear the matter.

‘Beg’

He said there were at the time seven judges of the supreme court and that most of the them had dealt with the matter in some way and thus could not be involved in the appeal. As a result, the case had been postponed until enough judges were available to hear the matter.

Although he had wanted to deal with the matter speedily, this had not been possible because the government had not agreed to the extra judicial posts needed to bring the supreme court up to its full strength.

Unlike other jurisdictions, in Eswatini the judicial service commission did not have the power to advertise empty posts, ‘but we have to go to the Ministry of Public Service and beg for posts’, he said.

Autonomous

The judiciary, as one of three arms of government, should be autonomous. However, it had to approach the executive ‘and beg’. He also said that the appeal against the high court’s finding that sections of the law on terrorism and sedition were unconstitutional was not the only appeal unable to be heard due to a shortage of judges of the supreme court.

Further, he said that the case should in fact be heard by five judges, but that (in 2019) there were discussions with the parties on the acceptability of reducing the number of judges hearing the matter to three, in an effort to ensure it could be heard.

Now the appeal is slated for hearing at the end of August, and according to a court notice, the chief justice will preside, while the other members of the bench will be judges M J Dlamini, R J Cloete, S B Maphalala and S J K Matsebula.

Recuse themselves

Lawyers involved in the appeal said they would be raising a number of preliminary issues including the fact that they had not been given the normal number of days’ advance notice of the appeal. They would also be asking that some of the judges recuse themselves. Whether there would be other judges who could take the place of judges who might step down, is not clear at this stage.

In its original high court decision, the majority, judges Mamba and Annandale, found that the government had been ‘woefully wanting’ and had not submitted any material at all to justify the limitations posed by the laws on the constitutional freedoms of Eswatini’s people.

They held the conclusion was thus ‘inescapable’ that the two laws were unconstitutional.

Crimes

But while the majority of the court scrupulously avoided dealing with the crimes alleged to have committed by the applicants who challenged the validity of the two laws under which they were charged, the minority judgment did not hesitate to do so.

Judge N J Hlophe, who wrote the minority decision, said that the trial of the accused should first be concluded. If the accused were acquitted that would be the end of the matter and the court would not need to decide the constitutional question. This was the preferable approach because it was not advisable to decide a constitutional question where a matter could be decided on other grounds.

Hlophe also agreed with argument by the government that in Eswatini, unlike all the other democratic countries whose jurisprudence was cited by the majority, it was the applicant, rather than the government, that had to show that a law limiting freedom of expression and association ‘was not reasonably justified in a democratic society’.

These diametrically opposing views by the high court on very fundamental issues of interpretation will be among the matters for the appeal judges to decide in this case.

‘A matter of justice’, Legalbriefs, 24 August 2021

Carmel Rickard

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