Times Of Swaziland: JUSTICE OR DISCRETION?

JUSTICE OR DISCRETION?
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Melusi Matsenjwa on 29/07/2024 07:27:00


GIVEN that it was a public holiday last Monday, I was really at pains that it
would take an entire seven days before I could air my two cents worth on the
sentencing of former Members of Parliament (MPs) Bacede Mabuza and Mthandeni
Dube at the High Court almost a fortnight ago now. I am one of many who were not
at all shocked by the disproportionately harsh sentence those two men were
handed by a judge whose CV in dealing with political cases is well-known.
Restrain
I will restrain myself from profiling her any further and focus on the
institution she represents, the Judiciary. The case of these two men must be
properly profiled as a political case. Regardless of the fact that they faced
criminal charges under the Suppression of Terrorism Act and the Crimes Act,
among others, their cases were purely political and this is very important in
analysing them.
The sentencing of Mabuza and Dube effectively to 25 and 18 years in jail without
an option of a fine, respectively, cast a dark cloud on the kingdom’s
Judiciary. The primary duty of this arm of government is to interpret the laws
passed by the Legislature. It does this by applying the law to the evidence
brought before it and, having regard to precedence, the Constitution and other
international instruments the country is party to, issues judgments. The sum
effect of that is what we then call justice, if I were to be simplistic in my
explanation. Due to the concept or doctrine of precedence, by which our superior
courts operate, the judgments they issue form what is known as jurisprudence,
which, in simple terms, is the standing attitude of the courts interpreting the
law to a given set of facts.
Judgments
This, largely, remains for posterity unless a higher court finds or rules
differently. When courts pronounce themselves on cases before them, there always
will be an interest on how their judgments mean to the jurisprudence, as
explained above. I am no legal eagle, but I think it should interest all of us
to know how our courts interpret the law and what it means to us.  This,
especially because we all can find ourselves having to be subjected to the law
as interpreted by these courts. The conviction and sentencing of the former MPs
by the High Court has far-reaching consequences for us as a nation. The
international community has been at the forefront of expressing outrage at the
manner the law has been applied to these two men who have been adjudged to have
offended the law so badly that, but for their mitigation of sentence, as the
judge expressed during sentencing, they were otherwise deserving of the death
penalty.
One of the consequences we will suffer as a nation, on the political front, is
that we will have a very timid Legislature swelled by politicians  who will fear
saying anything that may even remotely cause public excitement. This will kill,
if it has not already done so, any robust debate and speaking truth to power. 
The Executive will be emboldened to run roughshod over the people without fear
of appraisal. There are some subjects of national importance that will never
have pride of place in parliamentary discourse due to the fear that this
judgment, if not successfully challenged, has induced.
To the uninitiated, the essence of the conviction and sentence is that if an MP,
in exercise of his/her democratic right to speak on behalf of his/her
constituency in Hosea, says something in a public platform, and 100km away a
person is knocked down by a car in Mbabane, in a totally unrelated incident, it
is possible to somehow link the parliamentarian to the incident in Mbabane under
our laws and successfully find them guilty of the death of that person.
Axing
It also means, hypothetically speaking, if a parliamentarian today were to call
for the axing of the prime minister due to his failure to address the health
crisis and, thereafter protests erupt the following day where property is
destroyed or vandalised, akin to the June 2021 unrest, that MP can be found
guilty under our laws for the ensuing damage which he did not call for.
That is how dumbfounding the reasoning is if this judgment is to be broken down
in simple terms. The biggest fear for me now is that this judgment does not help
the country in its quest for healing and social cohesion, especially after the
civil unrest whose long-term effects the State seems happy to ignore and
underplay. This is time for serious nation-building and not score-settling.
The authorities have never needed sober advice like they do right now. There are
several political solutions to this situation and plenty of lessons to learn
from too. I recall President Ramaphosa tapping into one of them at the height of
political tensions when former President Zuma was convicted for contempt of
court. Just saying. They could just be the game-changer we need and lead us
towards a path of peace.