The Law Society of Swaziland has scored victory in its attempt to have the Chief Justice Michael Ramodibedi tried by the African Commission on Human and People’s Rights – a body of the African Union tasked with promoting and protecting human and people’s rights in the African continent.
Through a correspondence dated August 28, 2014, the Commission informed the Law Society that during its 16th Extra-Ordinary Session held in Rwanda from 20 to 29 July 2014, it was decided that the case against the CJ was admissible.
The complaint is between the Law Society of Swaziland (complainant) and the Kingdom of Swaziland (the respondent state).
The Law Society’s counsel and representative on record is the International Commission of Jurists Africa Section.
In its complaint to the commission, the Law Society submitted that on June 16, 2011, the chief justice of Swaziland acting in his capacity as head of the respondent state’s judiciary issued Practice Directive No. 4/2011.
It is alleged by the Law Society that the practice directive bars all courts in Swaziland from accepting any processes seeking to commence legal action against the King or the office of the King, whether in official or private capacity.
Such a move, the Law Society has argued, “amounts to an ouster of the jurisdiction of all Swaziland’s courts in all matters involving the King on his office and, is therefore, a restriction of ‘the right to an effective remedy as guaranteed by the African Charter”.
After the introduction of the directive, the Law Society says it petitioned the Judicial Service Commission – a body headed by the CJ and which is mandated to receive complaints against judicial officers – seeking disciplinary action against the chief justice for alleged misconduct.
The petition sought the removal of Ramodibedi on grounds that the practice directive and some of his actions amounted to a violation of the Swazi Constitution and the state’s international human rights commitments.
Such a petition, according to the Law Society, provided the state with an opportunity to remedy the alleged violations.
“The complainant asserts that the Judicial Service Commission is a constitutionally established administrative body that is competent to consider the complaint against the chief justice and other concerns articulated by the complainant,” says the commission on the Law Society’s submissions.
The Law Society also submitted to the commission that its concerns regarding the CJ ‘s actions were brought to the attention of other state authorities such as the minister of justice, chairman of the civil service commission, Speaker of the House and the Senate president but this resulted in no remedial action being taken by the respondent state.
“The complainant avers further that the crisis occasioned by the actions of the chief justice attracted media and civil society attention resulting in the issuance of press releases and calls on the government of Swaziland to take action, but none of these resulted in any positive remedial action despite the fact that it resulted in the signing of an agreement between the complainant and the Judicial Service Commission; this was signed in order to put in place clear guidelines to be followed on how the judicial crisis was to be dealt with,” the commission has further written. After running from pillar to post without receiving any assistance on its complaint, the Law Society submitted to the commission that Swaziland should be seen as having forfeited its prerogative to deal with the matter domestically.
Having considered the Law Society’s submissions, the commission declared “this communication (by the law society) admissible in accordance with Article 56 of the African Charter.
Swaziland fails to submit arguments
The complaint against Chief Justice Michael Ramodibedi before the African Commission on Human and People’s Rights will proceed without submissions from the respondent state (Swaziland).
This is due to failure by the respondent state to submit its arguments even though numerous reminders were sent by the commission.
After the Law Society of Swaziland filed its arguments for the matter to be heard by the commission, a note verbale was sent to the Swaziland notifying the state of same and receipt of this was acknowledged through an email on November 5, 2012.
A note verbale is a form of written correspondence through which different diplomatic-consular representations officially communicate with one another and it is drafted in the third person, often unsigned. Following Swaziland’s failure to make its submissions, the commission says it re-transmitted to Swaziland the note verbale along with the Law Society’s submissions. On April 29, 2013, Swaziland is said to have sent a note verbale to the commission’s secretariat requesting an extension of time to submit its arguments, citing late receipts of relevant documents as justification for the request.
The commission allowed Swaziland the time extension.
“Through a note verbale dated 10 May 2013, the Secretariat made a final request for the Respondent State to submit its observations and arguments on admissibility, however no response was received, an in light of this, the commission took a decision to proceed with the decision on admissibility,” says the commission.
Following this, the commission has adjourned the consideration of the communication for the parties to make their submissions on the merits in accordance with Rule 107(2) of its Rules of Procedure.
The procedure is that “Once a communication has been declared admissible, the commission shall inform the parties and defer the communication to the next Session for consideration on the merit”.
The commission has now requested the Law Society of Swaziland to forward its submissions on the merits within 60 days of notification pursuant to Rule 108(1) of the Rules of Procedure.
Rule 108(1) states: “Once a communication has been declared admissible, the commission shall set a period of 60 days for the complainant to submit observations on the merits. These observations shall be transmitted to the state party concerned for the submission of its observations within 60 days.”
Will Pansy Tlakula try Ramodibedi?
Last month, resigned Chairperson of South Africa’s Independent Electoral Commission Pansy Tlakula visited Swaziland and met civil society organisations.
Now, it is suspected that part of her mission was to major players in the complaint against Swaziland filed by the Law Society of Swaziland at the African Commission of Human and People’s Rights.
Tlakula is one of the commission’s 11 commissioners and she visited Swaziland in that capacity.
Its possible, therefore, that she could be one of those to deliberate over the matter, which the commission is now ceased with.
Other commissioners include Lawrence Murugu Mute (Kenya), Lucy Asuagbor (Cameroon), Maya Sahli Fadel (Algeria), Med S.K. Kaggwa (Uganda) and Mohamed Bechir Khalfallah (Tunisia).
The rest are Pacifique Manirakiza (Burundi), Reine Alapini-Gansou (Benin), Soyata Maiga (Mali), Yeung Kam John Yeung Sik Yuen (Mauritius) and Zainabo Sylvie Kayitesi (Rwanda).
Sequence of events:
June 16, 2011
- Chief Justice issues Practice Directive No.4 of 2011
October 10, 2011
- Law Society files complaint with African Commission on Human and People’s Rights
November 21, 2011
- Commission informs Law Society that it is seized of the matter
November 21, 2011
- Commission informs Swaziland about Law Society’s complaint
June 4 and August 17, 2012
- Commission requests Law Society and Swaziland to submit arguments
September 25, 2012
- Law Society requests to substitute itself with the International Commission of Jurists Africa Section.
September 26, 2012
- Law Society sends request to commission asking for time extension to submit arguments
October 31, 2012
- Law Society submits arguments to commission.
November 2, 2012
- Commission sends Law Society’s submissions to Swaziland
November 5, 2012
- Swaziland acknowledges receipt of Law Society’s submissions
April 19, 2012
- Commission re-sends Law Society’s submissions to Swaziland
April 29, 2013
- Swaziland requests commission for time extension to submit arguments
May 10, 2013
- Commission informs Swaziland and Law Society of decision to defer consideration of admissibility
May 10, 2013
- Commission makes final request to Swaziland to submit its observations and arguments
July 20 to 29, 2013
- Commission holds its 16th Extra-Ordinary Session and decides to admit the Law Society’s complaint against Swaziland