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Qinisile qualifies for CJ post

01/07/2012 00:00:00 MBONGENI NDLELA and MDUDUZI MAGAGULA

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MBABANE – Justice Qinisile Mabuza, one of the longest serving High Court judges in the kingdom, was once shortlisted for the post of Chief Justice (CJ).

Mabuza was one of the top three candidates considered for the post in 2007.

The others were former Chief Justice Richard Banda from Malawi and an attorney from South Africa.

The post was eventually given to Banda, the husband of newly elected Malawi President Joyce Banda.

Banda retired from the Swazi judiciary on medical grounds in October 2009.

At the time she was shortlisted, Justice Mabuza had worked for only one year as a judge of the High Court but had a wealth of experience in private practice as an attorney.

The judge has confirmed this information.

However, she declined to give further details, saying she was not allowed to speak to the media.

Prince David, the main author of the national constitution and a former Minister of Justice who was at the helm during the recrui-tment exercise of CJ in 2007 confirmed that Mabuza was one of the candidates who applied for the post of CJ.

He said qualifica-tions for appointment to the superior court included the requirement of 15 years experience in the legal field.

While for the post of CJ, the candidate should have administration or leadership skills as additional requirement. He said this information was enshrined in the constitution.

When the post of CJ was advertised by the JSC in 2006, the required qualification for candidates was that they should be aged not less than 50.

The candidates should also be holders of a Bachelor of Law degree (LLB).

They must have been admitted as attorney or advocate of the High Court and possess a minimum of 15 years working experience as a legal practitioner - on a supervisory capacity.

Mabuza had vast experience from private practice but had only served for about a year as a judge when she was earmarked for the post.

"If you are an attorney and have served for 15 years as a lawyer you can be appointed to the Supreme Court," said Prince David.

A source who asked not to be identified said Mabuza could not get the post five years ago because she was competing with Justice Banda, a Malawian citizen who was more experienced, having served in his country courts as Chief Justice and Minister of Justice.

It is not known if she will be considered for the post this time around.

The Judicial Services Commission (JSC) recently declared that, while some Swazis could qualify for the position, the incumbent would be appointed on merit.

The JSC said this when it announced that Chief Justice Michael Ramodibedi, who is originally from Lesotho, would continue to occupy his post beyond the constitutionally stipulated date of July 27, 2012 for localisation of his post.

This was due to the fact that His Majesty had, before this date, given him an indefinite contract.

Constitutionally, the qualification for the post of judge in Swaziland is 10 years experience as a legal practitioner.

"That person is or has been a legal practitioner, barrister or advocate of not less than 10 years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland," reads section 154 (b) of the constitution.

For appointment to the superior court, it stipulates that the person should be or have been a legal practitioner, barrister or advocate of not less than fifteen years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland. CJ Ramodibedi’s continued stay in office beyond July is being criticised by some legal practitioners on the strength of the constitution.

Critics cite Section 157 subsection (1) of the constitution, which stipulates that a person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years from the commencement of the Constitution. The constitution was adopted on July 27, 2005.

Section 157 (2) says unless otherwise agreed between the contracting parties, a judge on contract shall vacate office at the end of the period provided in the contract.

‘Yes, many Swazis are eligible’

MBABANE – Sibusiso Shongwe, member of the Judicial Services Commission (JSC) says a number of Swazis qualify for appointment to the post of Chief Justice and judges of the High Court.

He said the qualifying Swazis are found in all sectors of the legal profession. Some are judges of the High Court while others practicing lawyers while some are advocates. He said their eligibility to the posts could never be questioned. Shongwe said the decision to appoint a judge rested with His Majesty the king.

"Despite the fact that they are all eligible, His Majesty has the power to decide who to appoint. He sees who is fit for whatever post," he said.

As if to emphasise this point Shongwe said his appointment to the JSC did not mean that he was more capable than others.

In an article published on June 25, 2012 by the Times of Swaziland, the JSC said Swazis were considered for the position of Chief Justice but none of them merited appointment.

This was the response from JSC Secretary Lorraine Hlophe, when asked why Swazis had been ignored for appointment into the Supreme Court and whether any locals had been considered for the Chief Justice’ position and why they had been overlooked.

KING TO MAKE FINAL DECISION

MBABANE – At least 40 Swazi legal practitioners qualify for appointment to the superior courts.

Some of the legal eagles qualify to be appointed as judges while others qualify for the position of Chief Justice (CJ).

Currently, Michael Ramodibedi who was born in Lesotho serves as Swaziland’s CJ.

His contract was recently renewed by His Majesty the King and is now indefinite.

The national const-itution states that any CJ would be appo-inted after July 26, 2012 should be a Swazi citizen.

This clause is clearly explained in section 157 (1) of the constitution.

It has been gathered that the qualifying Swazis are found in all sectors of the legal profession.

According to investigations by Times SUNDAY, some of the candidates are already working as judges of the High Court.

Sibusiso Shongwe, a member of the Judicial Service Commission, confirmed that many Swazis qualified to be appointed judges or to the post of Chief Justice.

"Despite the fact that they are all eligible, His Majesty has the power to decide who to appoint. He sees who is fit for whatever post," he said.It has been established that there are other recomme-ndations required by the Judicial Service Com-mission during hiring.

In 2006, the JSC when advertising the post of CJ required that the applicant m-ust not be you-nger than 50 years.

Ramodibedi is the best – Sibusiso

MBABANE – Sibusiso Shongwe, member of the Judicial Service Commission said the appoin-tment of Michael Ramodibedi to the post of Chief Justice for an indefinite period should not be questioned because it was made by the King whose word was final. He specifically urged all people in the legal field who believe that Ramodibedi should stop serving as CJ to abandon those beliefs.

He said His Majesty, by extending his contract for an indefinite period displayed confidence in Ramodibedi’s administration of the country’s judiciary. Shongwe said Ramodibedi was the best candidate for the post of CJ.

He said once His Majesty makes an appointment it was un-Swazi to question his decisions because they were final. "As Swazis the only thing that we need to do is kwekhuta lwandle (hail the king) as per custom because the King has blessed his appointment," he said. Shongwe said when His Majesty made the appointment; he said Ramodibedi would work for the country until further notice, which was good news. He made these comments amid allegations that his continued stay in office was in breach of Section 157 (1) of the constitution which stipulates that after seven years of the adoption of the constitution a Swazi should be appointed to the post of judge or Chief Justice.

Shongwe said the constitution was clear on this.

He said Ramodibedi would work beyond the stipulated cut-off date because his appointment was made before July 27, 2012.

The member of the JSC said the constitution stipulated that foreigners shall not be appointed to the post of CJ or as judges after seven years but Ramodibedi’s case was different in that His Majesty appointed him long before the cut off date. "He was appointed for an indefinite period long before July and he will continue to serve for the duration of the contract that was given to him when he was appointed," he said. He said Ramodibedi and the other foreign judges would continue to work for the duration of their various contracts.

He said as per the constitution, once their contracts lapse, His Majesty would appoint Swazis to fill these posts. "Such stability translates to peace in the country because there is a lot of confidence in the judiciary which efficiently works indepe-ndently to administer justice," he said. He said the JSC was also happy with Ramodibedi’s work.

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