LAW SOCIETY DISCOURSE Rumbling about the Judiciary

7

+( /aw 6ociety cannot taNe any credit for the title of this weeN¶s discourse.

,t was picNed up in the (swatini 1ews edition of this past 6aturday -uly and it was attributed to 6upreme &ourt -udge -ustice 0. -. 'lamini who was representing the &hief -ustice &- in the organised capacity building worNshop for newly appointed $ssistant 0asters of the +igh &ourt funded by the 8nited 1ations 'evelopment 3rogramme 81'3 .7he law society applauds the 81'3 for this far-reaching generous gesture.

5eaders must not read too much into the word assistant.

7hese assistant masters of the +igh &ourt are the very officers who maNe important decisions in the winding up and distribution of deceased estates beginning with the appointment of the e[ecutor up to who is entitled to inherit from what is left of the estate after the estate liabilities have been paid.

7hey are the regional principals in the office of the master of the +igh &ourt.

,n fact many members of the public actually refer to these officers as the master unaware that they actually ranN below the deputy master of the +igh &ourt and the 0aster of the +igh &ourt at the national +ead 2ffice in 0babane.

%acN to -ustice 'lamini he is reported to have said among other things to the $ssistant 0asters

µ

7he acNnowledgement of the discontent in the -udiciary was a welcome breath of fresh air. 7he law society has become used to impunity from the &- and his -udicial 6ervice &ommission -6& in their breaches of the &onstitution.

7he best that we have seen from them is coming out to defend the indefensible instead of taNing responsibility for the e[isting judicial crisis.

-ustice 0.-.'lamini did not end with the rumblings about the -udiciary but had invaluable advice for the assistant masters. +e concluded the point with these remarNs

µ,W LV LPSRUWDQW WKDW ZH FORVH UDQNV DQG GR WKH ULJKW WKLQJ :H FDQ VWRS WKH QRLVH E\ SXOO LQJ WRJHWKHU GRLQJ WKH ULJKW WKLQJ DQG EH VHHQ WR EH GRLQJ WKH ULJKW WKLQJ ¶7hat justice must not only be done but be seen to done bears repeating. 7his is what the law society stands for and advocates.

NO MANIFESTATION OF JUSTICE

5efreshing as what -ustice 'lamini is reported to have said the starN reality is that the &- is wasting 6tate resources appealing a decision that precludes him from choosing -udges to hear a matter in which he is a party.

,n the discourse of three weeNs ago the law society decried the appeal by the chief justice

The three arms of justice. against a decision precluding him from choosing judges to hear a matter in which he and his -6& have challenged 3arliament to institute a probe into the office of the master of the +igh &ourt.

7he order being appealed by the &- was made by the +igh &ourt in the case of 7he &- of the .ingdom of (swatini 1.2. $nother v 7he &lerN of 3arliament 2thers 6=+&

$pril in which -ustice 7. 'lamini following a well-reasoned judgment ordered as follows 7he matter is referred to a full bench of this &ourt.

7he principal judge by virtue of being the most senior -ustice of the +igh &ourt is ordered to empanel a full bench to hear and decide this matter.

7his brings the law society to the judicial service commission -6& statement published in the daily newspapers just over a weeN ago. ,n relation to this specific matter the -6& statementreads

µ7he matter involving the purported probe of the office of the 0aster is sub judice.

:e therefore cannot deliberate on it save to confirm that the&in his official capacity as the head of the -udiciary together with the &- have noted an appeal under &ase 1o. which appeal seeNs to address the second order of the judgment of the +igh &ourt.

:e await the conclusion of the appeal and the -udgment as per the dictates of the law.¶

,gnoring for a moment that it is a head of the -udiciary that is insisting on choosing -udges in a matter in which he is a party the appeal by the &- and his -6& begs the question whether justice will be seen to be done when rightly or wrongly the judgment by the +igh &ourt is overturned by the 6upreme &ourt where the &- practically presides.

7he judges who are called upon to decide the matter normally sit with the &- in the 6upreme &ourt.

:ill this not create a perception of bias in favour of their boss"

7he -6& statement also criticised articles published by the 7imes of (swatini on issues pertaining to the administration of justice which the -6& characterised as not only devoid of the truth but intended to scandalise and diminish the integrity of the courts.

7he law society shares many of the sentiments of the satirical 3ublic 'efender in the articles published by the 7imes of (swatini. 0embers of the /aw 6ociety are confronted by the miscarriage of justice in their daily professional lives.

INDEPENDENCE COMES WITH ACCOUNTABILITY

2n 6aturday -une it was yet another episode of the satirical public defender in the :eeNend $nalysis 2pinion.

$gain here the /aw 6ociety has to agree with the sentiments e[pressed. ,n what appears to be the last instalment of the series of this critical satirical narrative titled µ7he 3eople rest their case¶ it reads as follows

µ0y /ord a lot has been ventilated in this court regarding the administration of justice the appointment of judicial officers accountability of the judiciary and the public¶s trust in our courts.

:e have heard your honour the judiciary flashing the µindependence¶ card every time they seeN to run away from accountability and each time they do not want to be questioned.

%ut let us remind the very judiciary of the words that were spoNen by 6amuel %. 7embenu 6& the 0inister of -ustice and &onstitutional $ffairs of 0alawi during the 6$&-)¶s $nnual *eneral 0eeting which was held /ilongwe. 2ur own &- was in attendance your honour when 7embenu stated that judicial independence comes at a price and that judges are duty bound to provide society with the highest possible standards of service and commitment.

$ccording to him what ultimately protects the independence of the judiciary is the trust and confidence of the society in which the judges serve.

2ne wonders 0y /ord does this trust and confidence e[ist in (swatini" :e believe not.

7embenu went on to talN about the relationship of the judiciary and other arms of government. +e said that just as the judiciary should be recognised and respected as an independent arm of government it must accord reciprocal recognition to the e[ecutive and the legislature.

7he 0inister said it was only when all the three arms of government worN in tandem in their respective roles that they would successfully drive the development agenda of their nations.

1otably he said the checNs and balances should not be an obstacle to the worN of the other two branches of government.

:here is the reciprocal recognition" $nd where is worNing in tendem" :e agree with 7embenu¶s observation that an overly e[ercise of judicial independence leads to a situation of lacN of judicial restraint. 2ur judiciary is seeNing e[treme self-control even when everyone and anyone can see that there should be some form of oversight in their actions.

$s 7embenu also pointedly remarNed one cannot talN of judicial independence without speaNing about judicial accountability. 7he two principles are inseparable in that accountability is a pre-requisite of independence. µ,ndependence is granted by society¶ our emphasis .

7embenu observed that a judiciary that does not want to be accountable and has no eye for societal needs will not gain the trust of the society and will ultimately endanger its independence. 7hat¶s position we have gotten to as ema6wati.

7he +onourable 0inister further noted that judges are accountable to the &onstitution and to the law which they must apply honestly independently and with integrity.

+e e[plained that judiciary independence starts with the manner in which judicial officers are appointed and the independence of the individual judge.

+e emphasised the importance of appointing professionally competent persons with proven integrity for judicial office.

)urther that although the systems and mechanism used should be transparent.

$ccording to him transparency in the mechanisms for judicial appointment differ from one jurisdiction to another whatever mechanism used should be transparent is of paramount importance as it ensures the appointment of the best-qualified persons.

+e emphasised that judicial appointments should be made on merit otherwise the foundation of the judiciary would be irretrievably compromised«

+e noted that the freedom of judges has a close relationship with judicial appointments because the mechanism for appointment of judges is directly related to the impartiality integrity and independence of judges.

+e said it was well accepted that an open selection process of judicial officers is a precondition to an independent and accomplished judiciary.

,t therefore followed that a democratic state formulated on the rule of law is enjoined to put in place constitutional and legislative frameworNs to ensure that the process of selecting and appointing judicial officers is not compromised.

7he .ingdom of (swatini

7hat¶s all we calling for

/astly may we quote 'r. -ustice $lfred 0aved]enge from the )aculty of /aw at the 8niversity of &ape 7own who when addressing the principle of judicial independence pointed out that this is a concept derived from the principle of separation of powers which demands that power should not be concentrated in a single organ but should be shared between the legislature the judiciary and the e[ecutive with each of these three branches checNing against abuse of power by the other branches.

:hy then should the judiciary not be subjected to checNs and balances"¶

AN OPPORTUNITY FOR THE JSC TO REDEEEM ITSELF

7he announcement of retirement of a permanent -udge of the 6upreme &ourt presents an opportunity for the -6& to comply with the &onstitution in the filling of the vacancy that has been created.

7he law society is watching to see if the vacancy will be filled by the best candidate in a transparent process of recruitment by the -6&.

:ill senior and more competent -udges be overlooNed once again" 7ime will tell.