The Judiciary, in any country, is the last bastion of hope. When all else fails, people run to the Judiciary, alive or dying, to obtain much needed redress. For this reason, the Judiciary as an institution and individual members thereof, should therefore be above reproach.
The situation eSwatini playing out in the last few months is highly regrettable and is causing haemorrhage to the institution to the detriment of natural and artificial persons living and doing business in the country.
There have been reports about possibly serious misbehaviour by some judges and magistrates, including the Chief Justice himself which have not been investigated, not only for the sake of those who might be alleged victims, but also for the sanctity, respect and confidence the people should have in the judicial institution.
This, if not attended to sooner, will sound a death knell to the institution as a place of legal and constitutional sanctuary for emaSwati.
Of late, there are reports alleging the Chief Justice and some of his judicial colleagues being on a confrontational path. Tensions are part of the work environment but how they are handled is very critical, especially when it comes to the Judiciary, which is one of the three organs of State.
The allegations making rounds further heap scorn and engender loss of confidence in the Judiciary, reducing it to a laughing stock, an eventuality we can ill afford.
In my view, this is the result, not of the recent events but failure to deal with the legacy of former Chief Justice, Michael Ramodibedi. After his unceremonious departure, there should have been an inquiry asking one question – how did we get where we are?
To have closed our eyes to the serious nature and effect of what happened during that era, is irresponsible and constitutes a great disservice to the people eSwatini. Things have become worse in the running of the Judiciary and the alleged behaviour of some individual judges is worrying. As the English saying goes, ‘a stitch in time saves nine’. We have multiple stitches as we speak, with more to follow as the blows incessantly land on the head and body of that revered institution, threatening to steal its very soul.
This will unfortunately be to the detriment of the users of the judicial system as an impartial arbiter. Issues not addressed in time tend to undress one later.
The Chief Justice is not a boss, ‘Makhulu Baas’, as someone chose to call himself. He or she is the first among equals and is to be the judicial leader in both word and deed, in jurisprudence and management of the institution. He or she must set a shining example of how judicial officers must behave in and out of court.
This will in turn give him or her the moral authority to deal with any allegations of impropriety levelled against judicial officers.
There is also an obligation upon him, once allegations of misbehaviour are levelled against him that he should step aside and allow the process of investigation to take its proper course.
All this must be done in reverence to the fact that the Judiciary is a national asset, bigger than individuals and should outlive them in its health and well-being. The office is bigger than the incumbent. This must be so for the sake of this and future generations.
Once any individual or official is seen or perceived to be above the reach of the law and propriety required in office, judicial dictatorship may set in with chilling consequences for the judicial officers seen to be independent and impartial. In turn, this negatively affects the users of the judicial institution.
Judicial independence is not a personal constitutional bequest to judges for personal enjoyment. It is designed to shelter and insulate judges from interference in the performance of their judicial functions. In this regard, they are under an obligation to be fearless and to bring their own independent judicial mind and judgment to bear on matters serving before them. This must be so regardless of how unpopular their decisions might be perceived by the authorities, including the Chief Justice himself.
They should display unapologetic independence of thought and judgment. Even the Chief Justice has no right to question or call them to account for the decisions they make, save in the ordinary legal route of appeal or review of the High Court decisions by the Supreme Court.
The constitution and the law alone, must be their eternal compass and guide. It is in that conducive atmosphere that human rights and protection of the vulnerable and minorities in the society can be assured that they and their rights matter.
In short, judicial officers must only be the slaves of the constitution and the law. The attainment of justice and fairness in their judgment must hold sway.
Judicial officers must also be sensitive and avoid bringing their own personal beliefs into matters serving before them. They must understand that they are servants to people in society who have varying beliefs and perspectives. To impose their own personal beliefs and tastes, be they religious, or moral, is therefore iniquitous.
It must be the law and the Constitution that sets the boundaries of the permissible and impermissible.
The issue of recognition of the rights of the LBGTIQ community is one that must be governed by the constitution and the law. And if any law or practice contravenes the Supreme Law, and a challenge is made to the court, the courts must interpret the law in a manner that protects human rights.
It must be recalled that the Constitution is a living document, meeting the changing realities of the society. It is not a last will and testament, which is a static and mummified document. It is therefore up to the courts to ensure that when people from all walks of life come to the counter, as it were, to cash on the promises in the Swaziland Constitution, they are not turned back and told that the cheque is referred to the drawer and there are no ‘sufficient funds’ to meet the promise of the Constitution. That would be scandalous.
The Judiciary ought to live to the promises of the Constitution and ensure that the letter and spirit of the Constitution are not thwarted or negated. In this regard, Swazi Law and Custom is also subject to the Constitution and must be interpreted and implemented through the Constitutional prism.