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ICJ WANTS UPDATE ON JUDGE MASUKU’S COMPENSATION

20/09/2022 08:42:00 Khulile Thwala

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MBABANE – The International Commission of Jurists (ICJ) has, through a letter, requested Eswatini authorities to provide information on the steps taken to implement a decision to compensate Justice Thomas Masuku.

The commission recently reported that it had purportedly written a letter to the Ministry of Justice and Constitutional Affairs to ascertain this. According to ICJ, the African Commission on Human and Peoples’ Rights (the African Commission) during the 33rd Extraordinary Session, held from July 12 to 19, 2021 and published on April 6, 2022, found that the State (Kingdom of Eswatini) had been in breach of the African Charter in its conduct surrounding the removal from judicial office of Justice Thomas Masuku. “The commission, in the decision of April 6, 2022, found that the Kingdom of Eswatini breached its human rights obligations to ensure a fair trial and an independent Judiciary in the case of Justice Masuku’s impeachment and removal from the Eswatini High Court,” stated ICJ, through the Director of the African Programme, Kaajal Ramjathan-Keogh.

Letter

The jurists commission further detailed that on June 28, 2011, Masuku received a letter from the Chief Justice at the time, the late Michael Ramodibedi, informing him of an inquiry against him. “The targeting of Justice Masuku for the execution of his judicial mandate resulted in a grave injustice against him personally and caused serious damage to the rule of law in Eswatini,” said the director. Ramjathan-Keogh, in his remarks, further said even though the leadership of the Eswatini Judiciary had changed in the years since the complaint was filed at the commission, the decision provided for the opportunity of long-delayed justice to Masuku and determination on what the Eswatini authorities should do to fulfil its obligations to continually ensure an independent Judiciary and fair administration of justice.

Independence

According to the letter from the jurists commission, the African Commission found that Eswatini had violated Articles 7 (right to a fair trial), and 26 (independence of the Judiciary) of the African Charter on Human and Peoples’ Rights, as interpreted with reference to the African Commission’s Principles and Guidelines on the Rights to a Fair Trial and the United Nations (UN) Basic Principles on the Independence of the Judiciary. “Having established these violations, the commission recommended that the authorities provide compensation to Masuku and ensure that the JSC review the charges against him. In terms of wider reforms necessary, the human rights commission recommended that Eswatini review the legal framework applicable to the JSC to ensure that judges have access to judicial review of JSC decisions and to permit judicial officers facing disciplinary proceedings to object to the participation of a member of the JSC on the ground of bias,” stated ICJ in the letter.

The Principal Secretary in the Ministry of Justice and Constitutional Affairs Lindiwe Mbingo, when reached for comment to ascertain whether the ministry was in possession of such a letter, stated that she was out of the office for the better part of the day and would only be in a position to check today. According to ICJ, the State is yet to issue any public official response to the African Commission’s decision. ICJ further claims that it does not appear apparent steps have been taken to ensure compliance with the commission’s recommendations.
“It is not every day that one finds communication from the African Commission dealing with critical aspects of the judicial office. I note with satisfaction the clear and unequivocal message conveyed by the Commission in Communication 444/13 regarding the independence and impartiality of individual judges and courts in the execution of their constitutional mandate. I have noted that some judiciaries on the continent have embraced the jurisprudence contained in the communication and have adopted the trite learning it provides on a practical rather than a theoretical basis,” said Ramjathan-Keogh in the letter. She further said the submission of the complaint by Masuku to the African Commission was not in vain.

Deliverables

“It has provided tangible deliverables, namely the clear guidance on the proper approach to impeachment of judges in terms of personnel, process, and procedure, having proper regard for the independence and impartiality of the judicial office in a constitutional State.” She further noted that the ICJ welcomed the African Commission’s decision and urged the Eswatini authorities to implement its recommendations to strengthen judicial independence in the country. “The independence and impartiality of the Judiciary is fundamental to the rule of law and human rights, including the right to a fair trial, and to an effective remedy for violations of human rights”, concluded Ramjathan-Keogh.

Communication

Meanwhile, the communication (Communication 444/13) submitted by Masuku was received by the African Human Rights Commission on April 11, 2013. The commission’s decision was therefore issued nine years after the initial submission. Recently, Judge Sipho Nkosi, was removed from the High Court, following an impeachment process. The charges laid against Judge Nkosi included alleged absenteeism, failure to deliver judgments, late arrival at court and bringing the administration of justice into disrepute. Judge Nkosi is the fourth judicial officer to be removed after Judge Masuku, Mpendulo Simelane and the late Chief Justice Ramodibedi who, after impeachment, were removed as judges of the High Court of Eswatini in September 2009 and June 2015, respectively.