Ryder Garathus Moreri Sejakgomo
24 September 2008
Francistown — Mmegi staffers RYDER GABATHUSE and MORERI SEJAKGOMO visit retiring Swati judge Thomas Masuku and hear that the independence of the judiciary and the rule of law are paramount in a democratic set-up and that in the learned judge's view, there are parallels between judicial officers and journalists
As a young man playing in the dusty grounds of his native town of Pigg's Peak in Swaziland, the outgoing Francistown High Court judge Justice Thomas Sibusiso Masuku always wanted to be a teacher.
"Teaching has always been my passion," Masuku reflects. "I remember the accolades I was showered with when I was teaching the vernacular language and religious education back in Swaziland. I also did some bit as a part-time lecturer in law at the University of Swaziland."
But his parents always reminded him about his love for law. "I think a part of me was teaching and I enjoyed it a lot," he repeats.
Yet again, there were those who dissuaded this father of two, whose wife is a principal officer in the field of procurement in Swaziland, from pursuing a career in law.
So strong is the man's passion for teaching that Masuku intends to teach law at the University of Swaziland after he retires from the bench. "For now I am not thinking about full retirement," he explains, "but maybe I'll go into teaching once I retire because I like that a lot and would like to share my experience on the bench with young people interested in law as a profession."
Books of different sizes on the subject of law and volumes of law reports occupy a good amount of space in his commodious office at the Francistown High Court complex.
Masuku is sitting at his laptop writing a judgement due to be handed down soon.
"Gentlemen," he greets us graciously, "you are welcome in my chambers, if you'll excuse me for a few minutes while I complete a paragraph of this judgement."
The 42-year old judge is in the company of the Assistant Registrar and Master of the Francistown High Court, Gee Ketlogetswe, who will sit through the interview.
Masuku is a baby-faced, clean-shaven man, dressed in the style of the corporate world. He gives the impression of a man full of energy and enthusiasm about what he does.
In his younger days, Masuku was a footballer who played central defence for Dribbling Wizards, a Premier League Swazi side. He made the University of Swaziland's select team, that won the three-way inter-varsity games hosted by the University of Botswana (UB) in 1989. Perhaps, due to his job commitments and age, the learned judge has long put competitive football aside.
"My term as a judge has come to an end," says the man who came to Botswana on sabbatical from the High Court of Swaziland, "and I am going back home to Swaziland at the end of the month to pursue other interests. I was initially on a two-year contract. This was my second term in Botswana as a judge. Our contracts have term limits."
"Other interests" refers to continuation of judicial work, at least for the near future. Masuku dismisses rumours that he has been eyeing the position of Chief Justice in his home country. "With a substantive CJ in place, I have no reason to eye the post. That is a serious misrepresentation of facts. I have not said a thing about the allegations because they were not attributed to me," says the youngest of justices on Botswana's bench of 16.
As he prepares for his exit, Masuku shares his impressions of Botswana's judicial system: "Coming from a country with a fair share of its problems in the judiciary, I was particularly impressed by Botswana's judicial independence and the rule of law.
"I have not been put under any state pressure or from any quarters in the execution of my job. The independence of the judiciary and the rule of law might seem to be a small thing, but they matter most in a democratic set-up. Once tampered with, it could take donkey's years to repair the damage," he warns.
Masuku also holds that Botswana's judiciary and the legal profession, in general, has a good future: "I have looked at young people coming into the profession (in Botswana)," he observes, "and they have given me a lot of hope. Batswana need to realise that this is their judiciary and they have to support it."
He leaves Botswana "a better person, and I have grown professionally and learnt a lot." He says the number of High Court judges is significantly low in Swaziland by comparison and that he has had good exposure reading judgements written by other judges.
Masuku points to recent improvements in administrative systems of the Administration of Justice. "It is the newly introduced things like the new case management system which have helped me appreciate a lot of things about my work. I would say for me it has been time well spent in this country. In Swaziland, the bench has about five judges while Botswana has about 16 or more."
His first major appointment to a substantive justice's position came in April 1999 when "His Majesty King Mswati III" assigned him as Acting Judge of the High Court of Swaziland. He was to become a full judge three months later. He remembers a time in the same year when he made an appearance before none other than the King himself, thanks to the considerate Chief Justice of the time, who invited Masuku to the August occasion.
"I told the King that High Court judges were his, that the judgements that the judges made were his, and promised that we would continue to do the job on his behalf as (judges had done unto) the biblical King Solomon."
Masuku emphasises the need for Batswana to uphold the law at all times, unlike in his country where there had been a breakdown in the rule of law. "Our country is still on its way to repairing the damage done, in so far as the rule of law and judicial independence in concerned," he says.
As a professed religious person, did this influence Masuku's decisions in court? No. He did not "consciously" bring his religious life into his judicial work. "I read Scripture a lot," he says, "and if you read Scripture, you will find that God has a provision for judges. With the knowledge of God, you look at people the way God looks at them, and for me, there I balance the act."
In the four years as a judge in Botswana, Masuku has handed down the death sentence only once. Was he influenced by his religious background to spare life?
"Not so. In law, every case is influenced by evidence available, and generally, the law itself determines the direction of a case. It is the facts of the matter that also determine the outcome of a case and not what a judge may believe in. As far as I saw the case, it was the only matter in which the murderer deserved the imposition of a death penalty."
Masuku points out that Botswana criminal law has a strong link to English law, and not common law as is the case with his native Swaziland.
As part of his farewell package for Batswana, Masuku recently issued a judgement in which he called the judiciary to explain bail. "People need to appreciate that a person granted bail is not acquitted and discharged. The Constitution of Botswana says a person is presumed to be innocent until proven otherwise," he says.
He considers bail an essential aspect of the Administration of Justice and quips: "Although society fails to wait for bail, the court is constrained to incarcerate a person who will not interfere with witnesses and to acquit the accused person after many months or years of incarceration, causing the person to lose his or her job in the process. The court is not there to simply punish people but to mete out justice in all fairness."
On a parting note, Masuku describes the Botswana media as vibrant and acclaims it for giving members of the public an opportunity to state their views by means of contributions, thus encouraging discourse on pertinent issues. He sees many parallels between judicial officers and journalists.
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