CORPORATE MAFIA AND JUDICIAL CAPTURE: The cornerstone of the system
A former Law student once told a story of how his then lecturer Majahenkhaba Dlamini lamented the ‘infantile and tactless’ manner in which then Prime Minister Sibusiso Barnabas Dlamini handled the then judicial crisis caused by the now infamous November 28 (2002) statement. Dlamini is said to have told his students that if at all you have to influence laws of the country all you needed to do was ‘capture’ the judiciary.
There was no reason for statements such as the one made by the late premier which saw him brazenly ride roughshod over court judgements and laws of the country. He suggested that the most effective, neat and sophisticated way to influence the country’s laws was to simply capture the bench. With the appointment of judges in the country being a preserve of the king, this shouldn’t be a difficult feat, reasoned the Nkhaba elder.
It would seem the ‘judicial capture’ blue print by the former Attorney General and Tinkhundla strong man eventually saw the light of day. After all, Dlamini now sits in the Supreme Court of the country as one of the permanent judges together with his fellow traveller in former Attorney General Justice Phesheya Dlamini, Justice Stanley Maphalala, Justice Jacobus Annandale Annadale, Justice Robert Cloete and Chief Justice Bheki Maphalala. As the apex court, the Supreme Court is the ultimate arbiter of all legal disputes in the country.
To understand why the progressives in the legal fraternity casually refer to the bench as the ‘last line of defence for the (Tinkhundla) system’, you only have to look at the names that populate the bench. In truth, the bench alone incentives against any form of judicial activism.
What the former AG didn’t include in his capture 'blue print' was the crime investigations and prosecutorial directorate in the country. Perhaps in his eyes it was too obvious that the ‘Royal’ Police’s perceived ineptitude is, at least to some degree, a function of its loyalty to the carte blanche powers. The rot at the Anti Corruption Commission is ironic as is it indicative of the extent and degree of the crisis the country battles with. Importantly it shows just how legal capture permeates all levels of our legal fraternity; apex court down to Magistrates and auxiliary institutions.
Perhaps the grandest spectacle in this context is how two factions, one on the side of ‘The Don’ himself—former Prime Minister Sibusiso Barnabas Dlamini—and ex Minister of Justice Sibusiso Shongwe who once squared up competing for access to the Commission’s covert operations fund, which, needless to say, is immune from any auditing and accounting scrutiny.
Interestingly, both the ex Premier and former Minister believed they had favours and direct access to the king whose omnipotence, so they thought, conferred some degree of immunity to themselves too.
In a protracted battle that eventually spilt over to other state institutions, Shongwe finally bit the dust. The former minister is not the only one whose downfall was preceded by textbook machinations by the former Premier. Seasoned lawyer Zweli Jele, whose enigma is itself a source of great intrigue in the world of hush tones, is perhaps the most celebrated and sophisticated scalp claimed by ‘The Don’. Interestingly, his beating somewhat went under the radar. It is said Barnabas had been aware of an allegation against the legal eagle’s wife for quite some time and did nothing about it.
True to, and typical of Barnabas’ modus operandi, he had ‘kept the file’ to bargain with at a convenient time. The said ‘mismanagement of company funds’ charge levelled agains Thokozile Jele allegedly took place in December 2011 at MTN. Mandvulo was advised by Barnabas to "pretend to be oblivious, we might need it in the future". Indeed time absolved 'The Don' and the file came in handy a few years later. Annoyed with Jele’s representation of Marwick Khumalo, Dlamini used the ‘file’ to bargain for his withdrawal from the case. The renowned lawyer resisted at first. However, after the arrest of his wife in mid-October 2013, Jele withdrew his services as Marwick’s lawyer two weeks later. The Don had struck again.
A senior attorney asserts that the capture of the judiciary is perhaps multi pronged and not deliberate in all the perspectives. He says, “for example there are the deliberate and systematic efforts by the appointing authorities through the ‘arbitrary’ appointment of the JSC, judges and other senior members of the judiciary. The result of this is often appointment of unheralded and weak judges. This then leads to the (possible) inadvertent capture by established and successful attorneys who easily tower over and overwhelm some judges, for whom these lawyers remain idols given their perceived knowledge of the law. Imagine the late Lindifa Mamba or Zweli Jele in a complex commercial matter before Judge Nkosinathi Maseko? What compounds the problem though is that the corrupt managers in the corporate world will notice these lawyers’ excellence and advantages and brief them for representation. The fact that Jele is not deemed to be ‘progressive’, unlike Lucky Howe, for instance, who despite great prowess and experience, still remains actively opposed to any and every form of injustice and respects the ‘activist’ Law Society which Jele is believed to view with disdain, doesn’t cover him and his ilk with glory.”
Lawyer Zweli Jele
The one other obvious downside of an ineffective and partial justice system is that it subjects individuals and citizens like Jele and the permanent Indonesian Consular and businessman Kareem Ashraf to the court of public opinion which convicts individuals on the basis that their invincibility has a lot to do with them being untouchable than acumen of any kind.
But the late Prime Minister corroborated the court of public opinion in many instances and proved that Majahenkhaba’s 'blue print' on capture is not just an abstract infatuation with capturing legal power but can be put to practice with good political dividends.
Sadly, and because of that, it means there could be something prima facie with some of the prevalent narratives peddled against some of these individuals. Some of the allegations are unprintable not only as a means to avoid litigation, but primarily because they could possibly induce despondency of untold proportion.
In all the instances of bending the rule book, there are dozens if not hundreds of otherwise well-meaning Swazis, whose culpability is almost unavoidable without inviting charges of insubordination.
From the Anti Corruption Commission, the Financial Services Regulating Authority, Swaziland Revenue Authority, Royal Science and Technology Park, the Central Bank, the Public Service Pension Fund, National Provident Fund to MTN eSwatini, there are multitudes of Swazis whose only culpability is knowing what’s happening and doing nothing about it.
In a culture like ours, where almost all malfeasance is linked directly or indirectly to the royalty, what do we expect these individuals to say and or/ do without risking being blacklisted and suffer the subsequent indigence?
Of course, some perfect their skill and appreciate that ‘everyone has a price’. When then Prime Minister Sibusiso Barnabas Dlamini, for instance, observed and pronounced that there was ‘a mafia operating at the SPTC’, Victor Gamedze knew what to do. And the ‘mafia’ theory died. Gamedze knew how to deaden the irritating noises because he knew exactly the motive behind the former Prime Minister’s observations.
Former Prime Minister Sibusiso Barnabas Dlamini
There will also be those who, because of our judicial system’s inability to issue any deterrence, are incentivised to take their chances in pursuit of good life.
By its actions and because of its invincibility, the corporate mafia has mobilized many (aspirant) middle class citizens to its ranks. A lot of Swazis at the helm of big corporations find themselves shoehorned into corrupt practices from which it becomes difficult to extricate themselves.
Consequently, and in some cases subliminally, they become the de facto defenders of the system and effective foot soldiers against democracy with its attendant demand for good governance. It is this seamless co-option, coupled with the systemic capture of our judiciary, that emboldens the king’s blasé attitude to any calls for democracy.
It is in appreciation of all the above that must impose on all of us the responsibility to support the call for democratization of the country. In doing so, we will have to acknowledge the progress made in spite of how the odds are staked against us. Our susceptibility and culpability can be attributed to the authorities’ inability to incentivize good behaviour. They do this by rewarding and condoning the corporate mafia reign.
At this rate, I sense ‘corruption amnesty’ on the cards. I do.