CHRONICLES OF A "HIDDEN" JUDGEMENT
.......In 2009 judge Thomas Masuku penned a dissenting judgement in an appeal case where he determined that banning political parties was like giving someone a car and then denying him the right to drive it. But since then his judgement was "hidden" from the public.
Among the many unfortunate legacies of the late Lesotho-born former Chief Justice Michael Ramodibedi is his role in suppressing a crucial dissenting judgment that could have reshaped Eswatini’s political landscape. The judgment, authored by Judge Thomas Masuku, argued forcefully against the country’s denial of the existence of political parties. However, Swazis were denied the opportunity to read and engage with this historic ruling due to Ramodibedi’s deliberate interference and instruction that it not be filed in the court record system.
Although EswatiniLII, the Judiciary’s online portal for free access to legal documents, preserves and archives court judgments, Masuku’s dissent was never officially filed as part of the High Court record. Instead, Chief Justice Ramodibedi instructed Judge Masuku to file his judgement separately, not together with the majority judgement as is legal precedence, ensuring that it remained outside the official court system and effectively burying it from public access.
Today, we can reveal the contents of this suppressed ruling and the legal reasoning that challenged the status quo. Even though the judgement was widely reported when it was first issued its absence from the legal portal has left a bitter taste in many alawyer's eyes.
The case was heard at the Supreme Court of Eswatini and was between Jan Sithole & Others v the Government of the Kingdom of Eswatini where rhe state was represented by Assistant Attorney General Mndeni Vilakati and while the late Thulani Maseko and Paul Shilubane represented the appellants. Sitting as Judges was Judge Ramodibedi, Judge Foxcroft, Judge Ebrahim, Judge Magid and Judge Masuku. The Supreme Court had to deal with the ongoing tension between the country’s constitutional provisions on political rights and its electoral system.
At the heart of the case was the conflict between Section 25, which guarantees the right to freedom of association, including the right to form and join political parties, and Section 79, which prescribes that individuals must contest elections on their own merit rather than through party affiliation.
The appellants—comprising political figures, trade unions, and civil society organizations, including PUDEMO, NNLC, and the Swaziland Federation of Trade Unions—argued that the Constitution contradicts itself by recognizing political parties while simultaneously preventing them from participating in governance. Judge Masuku’s dissent centered on the contradiction between two sections of Eswatini’s Constitution:
■ Section 25, which guarantees freedom of assembly and association, explicitly allowing citizens to form and join political parties.
■ Section 79, which prescribes that elections and appointments to public office must be based on “individual merit,” a provision long interpreted to exclude party politics.
While the Constitution recognized political parties under Section 25, it simultaneously nullified their ability to function effectively by imposing a system that barred party-affiliated candidates from running for office. Masuku found that these two provisions were in direct conflict.
The majority judgement found no such conflict making the now infamous remark that "democracy, like beauty, lies in the eyes of the beholder." This made Masuku's judgement to be a minority judgement and of no force and effect. Ironically, the political life of this country was decided by a majority foreigners with the only Swazi voice shut out. “The right to associate and assemble is rendered meaningless if individuals cannot collectively advance their political beliefs through organized participation in governance,” Masuku wrote.
“This is akin to granting a citizen the right to own a vehicle while prohibiting them from driving it.” Masuku argued that the court had a duty to harmonize the Constitution’s provisions in a way that upheld fundamental rights rather than restricting them. He cited legal precedents from jurisdictions such as Tanzania, Zimbabwe, and Botswana, emphasizing that where constitutional provisions are in conflict, courts must favor the interpretation that expands human rights.
“Where human rights provisions conflict with other constitutional provisions, human rights must take precedence,” he asserted, referencing Uganda’s Rwanyarare & Others v Attorney General (2004) ruling. Masuku pointed out that Section 25, as part of the Bill of Rights, held a specially entrenched status in the Constitution, meaning it carried greater legal weight than other provisions, including Section 79. In his view, giving precedence to Section 79 over Section 25 was legally indefensible and effectively stripped Swazis of their constitutional right to meaningful political participation.
The Judgment That Never Was Had Masuku’s reasoning been adopted by the majority of the court, Eswatini’s political system could have been fundamentally altered. Political parties would have been recognized not just in theory but in practice, allowing them to field candidates and participate openly in elections. Instead, the majority of judges upheld the status quo, arguing that the Constitution did not explicitly prohibit party membership, only that candidates had to stand as individuals.
This reasoning ignored the reality that without formal recognition, political parties in Eswatini remain powerless, unable to contest elections or influence governance effectively. By suppressing Masuku’s dissent, Chief Justice Ramodibedi ensured that Swazis remained unaware of a critical legal argument that could have challenged the political system.
This act of judicial censorship deprived the nation of a landmark ruling that might have forced a long-overdue conversation about democracy in Eswatini. Today, however, Masuku’s words can finally be read. His judgment stands as a testament to the legal battle for democracy in Eswatini—one that continues despite efforts to erase it from history. The Bridge will upload the full judgement on its website.