13 July 2016

Swaziland: Erasing a Judge's Grubby Fingerprints

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What happens when a judge departs in the face of corruption allegations? Will that judge's decisions stand? And if the judge heads the highest court, what mechanism is there for a further appeal against that judge's decisions?

Would it be like the Tour de France in which drug cheats simply disappear from the record books and are barely mentioned even by commentators?

These are questions I have been mulling since the ignominious departure from Swaziland of that country's former Chief Justice, Michael Ramodibedi.

You may remember the Ramodibedi story: he was at one stage Chief Justice of both Lesotho and Swaziland, but after Lesotho began impeachment proceedings against him, he scarpered over the border and based himself permanently in Swaziland. His increasingly dictatorial and bizarre reign there ended after he locked himself into his official house rather than hand himself over to the police waiting to arrest him.

In terms of a deal brokered by Lesotho he ultimately faced no charges, but the initial arrest warrant included corruption related matters, while the Judicial Service Commission heard allegations of gross misconduct and he was ultimately fired by the Swazi king for serious misbehaviour. Though he never put his side of the story, allegations against him included involvement in corrupt deals to ensure a case went the way of particular litigants.

Ramodibedi has been gone for more than a year now, and this week I combed through the decisions of Swaziland's Supreme Court delivered over the last 12 months to see how that country's highest court dealt with his grubby fingerprints.

What I found was a surprising number of cases in which the Supreme Court was asked to review its own earlier decisions. Sometimes the earlier decision, sought to be reviewed, was one in which Ramodibedi had sat.

Sometimes it was not obvious whether he was involved in a matter or not.

For Ramodibedi is not the only problem faced by Swaziland's highest court when it comes to re-hashing its decided cases. There's a second difficulty: the 10-year-old constitution provides for the Supreme Court to review its own decisions, but though parliament is supposed to have made a law fleshing out this provision, it has not done so. There are no rules of court about how such reviews should be handled, no answer for lawyers on when the Supreme Court will agree to review one of its decisions, or how many reviews it will allow in one case. In the absence of a law, the court has been trying to formulate guidelines for itself via its decisions.

The Ramodibedi scandal exacerbates this problem. A number of cases heard by him or during his term of office have been brought back to the court over the last year, with litigants claiming grave injustice was done and that the Supreme Court should re-examine these matters. No fewer than 12 of the 60-odd cases decided by the Supreme Court this year so far concern the problem of whether that court will reconsider a case it has already decided, including several in which Ramodibedi was involved. Not all these attempts were successful and as litigants test when a second try will work, the court is trying to clarify the position via its decisions.

Ramodibedi is seldom mentioned by name in these cases though I found one in which the court spoke of 'M M Ramodibedi CJ as he then was'. But cleaning up operations in his wake have continued. For example, in the recently decided case of Vilakati v the Prime Minister of Swaziland the Supreme Court, reconsidering a judgment of Ramodibedi and four other judges, found the 'grave errors' in the original decision 'caused gross injustice which constitutes a very high degree of extremely exceptional circumstances' justifying a review and reversal of the original decision.

And what of the case in which Ramodibedi was allegedly involved in corruption? In this matter, pitting an importer of goods into the country against the Swaziland tax authorities, he also hand-picked the rest of the Bench, while the disgraced former Justice Minister allegedly promised a payout to them as well. How would a subsequent court deal with the case when the tax authorities, who lost under Ramodibedi, came back for a review?

In the end it was very dignified affair, with the court making no reference to any untoward behaviour on the part of the earlier Bench.

Though everyone in court would have known the background, the arguments of both sides were fully and seriously considered as in any other legal challenge and focussed purely on the legal issues raised in the case.

The judges warned they would not allow a party to return to the highest court 'simply because he is dissatisfied with the outcome'. There had to be exceptional circumstances, 'including fraud, patent error, bias, new facts (or) significant injustice'. It wasn't to allow litigants a second bite at the cherry, but rather to 'address only a situation of manifest injustice irremediable by normal court process'. Though all involved may have been winking and nodding, still nothing overt is said.

Some of the grounds argued by the tax authorities were dismissed by the court, but then came a crucial aspect of Ramodibedi's original Supreme Court decision - regarded at the time as most puzzling. The High Court had found in favour of the tax authorities on preliminary technicalities and without dealing with the merits at all. Yet when the matter went on appeal the court considered and ruled on the merits, going much further than requested by the importer - the party that allegedly paid bribes for a favourable decision. At this point in the new judgment you can almost sense the present court's relief that they have found a way to reverse the original outcome without needing to name the unmentionable background.

This 'determination of the merits on appeal', said the present Supreme Court, 'was a serious irregularity' (causing) 'a gross miscarriage of justice'. An appellate court should not arrogate to itself the role of a trial court, thus depriving the parties of a right to appeal against the decision made in the first instance. 'Instead of castigating the trial judge for dismissing the application on technicalities and determining the merits itself, the Supreme Court should have sent back the application to the High Court to be determined on the merits.'

Perhaps, though, the most satisfying criticism is found in a slightly older judgment, soon after Ramodibedi's departure, ordering the release of a journalist and lawyer imprisoned at the direct behest of Ramodibedi for daring to question the quality of justice in Swaziland.

In this appeal, brought by the two imprisoned human rights activists, the Crown conceded that it could not contest the matter. A slew of irregularities such as the fact that the trial judge should have recused himself and that he refused to allow the accused to be represented, all made it impossible to defend the conviction and sentence. The 'new' Supreme Court agreed: 'what happened in this case was a travesty of justice', the judges said.

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