Even judicial skunks deserve justice too

On 28 October 2021 High Court Judge Sipho Anthony Nkosi appeared before the Judicial Service Commission (JSC) for what was supposed to be the start of proceedings for his removal from office. This is the fourth time in ten years that there are proceedings to remove a judge in eSwatini. The three other removal proceedings involved Judge Thomas Masuku, Chief Justice Michael Ramodibedi and Judge Mpendulo Simelane.

I am unaware of any other country in southern Africa which has had as many removal proceedings against judges of its superior courts in the same time period. This high number may be an indication of one of three things: the methods of judicial appointments are not rigorous, low ethical standards among our judges or removal proceedings are used to penalise judges who deliver judgments that annoy the powers that be.

Judges are required to be independent. At a basic level, independence means judges must decide cases which come before them on the law and facts without interference from any one. One of the ways in which judicial independence is secured is security of tenure. This means a judge does not serve at the pleasure of the person or body which appointed him or her.

A judge holds office until he or she reaches retirement age. In some countries, judges hold office for life. Security of tenure does not mean judges can do as they please. Judges can be removed from office. Removal is one of the ways in which judges are held accountable. However, the grounds for which a judge can be removed from office are narrow.

Section 158 of the Constitution of the country regulates the removal of judges of the Supreme Court and High Court. Judges can only be removed for serious misbehaviour or physical or mental incapacity which renders them incapable of performing their judicial functions. Judge Nkosi is charged with serious misbehaviour. Therefore in this article I confine myself to a discussion of serious misbehaviour.

The Constitution does not say which forms of misbehaviour are sufficiently serious to justify removing a judge from office. This is not a peculiarity of the Constitution of Swaziland. The wording of many other Constitutions of Commonwealth countries have a wording similar to ours. In 2009 the Judicial Committee of the Privy Council in deciding whether the Chief Justice of Gibraltar should be removed came up with the “destroying confidence” test.

The court said the highest standards of behaviour are expected of a judge but failing to meet those standards will not of itself be enough to justify the removal of a judge. The court continued to say judicial independence is so important that the removal of a judge can only be justified where the shortcomings of the judge are so gross as to destroy the public’s confidence in his or her ability to perform the judicial function.

eSwatini Chief Justice Bheki Maphalala

Section 21 of our Constitution guarantees the right to a fair and speedy public hearing within a reasonable time by an independent and impartial adjudicating authority established by law. According to the Times of Eswatini of Friday 29 October 2021 the removal proceedings against Judge Nkosi were to be closed to the media and the public. Secret removal proceedings closed to the public are inconsistent with the right to a fair hearing.

Judicial independence exists for the benefit of the public and thus the public has a right to see and hear how proceedings to remove its judges are conducted. Towards the end of last year neighbouring South Africa conducted proceedings for the removal of Judge President John Hlophe in public.

The proceedings were broadcast live on social media platforms, television and radio. There is no reason why our JSC should not follow the South African example particularly because the removal proceedings against Chief Justice Ramodibedi and Judge Mpendulo Simelane were held in public. Furthermore, Judge Nkosi is not opposed to a public hearing.

Attorneys from the storied Mbabane based firm of attorneys Robinson Bertram are prosecuting Judge Nkosi. On 20 October 2021 the firm issued a strong and widely welcomed statement condemning the disproportionate use of force and infringement of the rights of citizens by the law enforcement authorities. In the statement, the firm described itself as a legal practice which upholds human rights.

The United Nations Vienna Declaration and Programme of Action of 1993 says human rights are universal, indivisible and interdependent and interrelated. In short all rights matter. It is puzzling for a legal practice which upholds human rights to defend the right to be free from violence at the hands of the State one week and participate in a secret hearing the following week.

The Times of Eswatini reported that Judge Nkosi questioned the fairness of the removal process if the Chief Justice participates in the enquiry. I think the judge makes a valid point. In terms of section 158(3) of the Constitution it is the Chief Justice who advises the King that the question of removing a judge from office ought to be investigated. Once the King receives this advice he refers the matter to the JSC for investigation. The Chief Justice has formed a view that Judge Nkosi’s (mis)behaviour is serious enough to warrant removal proceedings.

The Chief Justice may very well be thoroughly fair in the removal proceedings but this is irrelevant. What matters is how it looks in the eyes of the ordinary Swazi man or woman. Would a reasonable Swazi think that a Chief Justice who has advised the King to refer the behaviour of a judge to the JSC for a removal enquiry think that he might be biased against the judge if he (Chief Justice) participates in the removal proceedings? I think the answer to the question is yes. It is for this reason that we have section 158(7) in the Constitution. This section allows for the Chief Justice in the interests of substantive and procedural fairness to be replaced by the second most senior judge of the Supreme Court in the removal proceedings.

Section 158(7) has not been used before. In the three previous removal processes the Chief Justice or Acting Chief Justice as the case may have been formed the view that the judges’ behaviour warranted removal proceedings and then sat in the removal proceedings. This is one of the reasons I am of the view that all three removal proceedings were flawed and unfair. The unfairness should not be allowed to go on any more. Section 158(7) must be invoked and the Chief Justice must excuse himself from Judge Nkosi’s removal process.

NB: "Nguboyenja Khumalo is the alias of a Swazi Judicial Officer who has an interest in Constitutional Law. He uses the alias in honour of Prince Nguboyenja Khumalo, son of King Lobengula of Mthwakazi. Nguboyenja was the first black person to qualify as a lawyer in Zimbabwe."