Report compiled by Kim Hawkey

‘Safeguarding judicial independence in an era of judicial reviews in the SADC region’ was the topic of the 13th Southern African Development Community Lawyers’ Association (SADC LA) conference and annual general meeting, which took place in Ezulwini, Swaziland in late August.

The conference, which was attended by law society and Bar leaders, lawyers, judges, government officials and civil society representatives, took place one week after the 32nd SADC Summit of Heads of State and Government extended the suspension of the SADC Tribunal and proposed that it become an interstate court with its jurisdiction limited to interpreting the SADC Treaty and protocols.

Speakers at the conference included chairperson of the United Nations Committee on Economic, Social and Cultural Rights, Justice Ariranga Pillay, who is the former President of the SADC Tribunal and former Chief Justice of Mauritius; the speaker of assembly in Swaziland, Prince Guduza, who delivered a speech on behalf of King Mswati III; the Swazi Minister of Justice and Constitutional Affairs, Mgwagwa Gamedze; and advocate Pansy Tlakula, the Special Rapporteur on Freedom of Expression in Africa at the African Commission on Human and Peoples’ Rights and chairperson of the South African Independent Electoral Commission.

Topics ranged from decriminalising freedom of expression to women’s rights and gender equality.

The association also used the event to reaffirm that ‘an independent, efficient and effective judiciary is the bedrock of just, peaceful, democratic and functional societies’. However, it noted that judicial independence in the SADC region had ‘suffered serious blows over the past few years’ at both regional and national levels. It also noted that while there had been some improvement in the observance of human rights and the rule of law in some countries, in others there had been either regression or no notable improvement in this regard.

Welcome from Swaziland

In a welcome speech, President of the Law Society of Swaziland, Titus Mlangeni, spoke about the need for leadership in the SADC region to adapt to changing circumstances.

He said that it was necessary to register concerns about slow progress and added that Swaziland should not be moving backwards, but should be moving forwards. He called on the Judicial Service Commission in that country to appoint judges transparently. He said that in the past few months four judges had been appointed, yet none of these vacancies had been advertised. In a call intended for the country’s Chief Justice, he said: ‘This, Mr Chief Justice, denies professionals what they have achieved and may adversely affect their confidence.’

He also spoke about freedom of speech and, in this regard, said: ‘It is a constitutional right in this country to articulate one’s views and articulate one’s plight. To be punished for this is very wrong.’

He added that in difficult times the legal profession is probably the most critical; however, it was necessary to have an enabling environment, which must be provided by the state. He said that the measure of accomplishment of a country economically was its judiciary. ‘Foreign investors run from lawlessness – not just crime, but also the ignoring or violating of orders of the courts,’ he said.

A word from the king

Prince Guduza delivered King Mswati III’s speech, in which the king called on legal practitioners to uphold their professional ethics.

‘First and foremost, you need to uphold your professional ethics. As lawyers, our people look up to you to provide them with professional legal advice. We believe your calling is to serve the people diligently and to be honest at all times. To many of our young people, lawyers are their role models. Therefore, as lawyers, you need to live a positive life. Leave a good legacy in your community. Be above reproach at all times,’ he said.

He described it as ‘heartbreaking’ when some lawyers were ‘found on the other side of the law or embroiled in unethical behaviour’ and said it was important to create a strong regulatory framework to deal with such conduct.

‘Our message to all lawyers is that you need to avoid this cancer because it compromises your noble profession,’ he said.

Topics in the king’s speech also covered, among others, the Swazi constitution and the people’s parliament.

SADC LA President condemns decision on tribunal

In her opening remarks, outgoing President of SADC LA, South African attorney Thoba Poyo-Dlwati, condemned the SADC summit’s decision regarding the tribunal, which she said would turn the tribunal into a ‘sham institution’.

‘You all know our struggles over the past two years as a profession in our efforts to save the SADC Tribunal from the jaws of death. It is sad to report to you that, despite our commitment to working with regional governments through the ministers of justice and attorneys-general on this issue, our leaders seem to have a different thinking altogether as far as the SADC Tribunal is concerned,’ she said.

It was worrying, she added, that the summit gave leaders the mandate to revise the legal documents of the tribunal over the past two years, ‘only to completely disregard their recommendations in favour of the decision of the SADC Council of Ministers’, which was not involved in the review process of the tribunal.

‘Why waste the region’s resources and taxpayers’ money over a process that the SADC Heads of State and Government have no intention of respecting and following? There is no political will, period,’ she said.

Ms Poyo-Dlwati also denounced the proposal to convert the tribunal to one that hears interstate matters only, which was against international practice, where there was a move to involve citizens and ensure their rights were protected. A tribunal of the nature proposed was ‘unheard of in this day and age’, she said, and it would, in effect, create a white elephant:

‘From what we know of our leaders in SADC, it is unlikely that they will take each other to the tribunal, rendering the institution only a court in name and building as no cases will be heard at that court.’

This, she said, was a clear indication that leaders in the SADC region were ‘concerned more with protecting their turf than with the rights of the citizens’.

‘We are finding it increasingly difficult to keep the confidence that we should otherwise have in our leaders,’ she said.

‘As lawyers … we therefore reject the proposed tribunal and wish to state categorically that we will not be part of that sham institution. … We … do not see the proposed SADC Tribunal as a legitimate and effective institution.’

‘This is the clearest case in the region of the undermining of the rule of law and independence of the judiciary, especially if we consider that the suspension of the tribunal in the first place was motivated by Zimbabwe’s refusal to abide by the judgments of the tribunal and respect the independence of the judiciary. … We need, as lawyers, to ask the following questions: What are our leaders hiding? What are they afraid of? Why are they so averse to the idea of citizens taking their grievances to the tribunal?’

Ms Poyo-Dlwati also highlighted some of the positive developments in the region since the association’s 2011 conference and AGM, as well as some remaining challenges and other ‘worrying developments’ in the SADC region. She referred to the matter involving Swazi judge Thomas Masuku, which was discussed at SADC LA’s 2011 conference and AGM. Judge Masuku was removed from the Bench for allegedly insulting the country’s King Mswati III. Ms Poyo-Dlwati asked the King’s representatives attending the event to convey her message that SADC LA was not satisfied that due process was followed in the suspension and dismissal of Judge Masuku.

Ms Poyo-Dlwati also called on law societies in the region to ensure that they have adequate measures in place to deal with errant lawyers ‘for the sake of maintaining the reputation of the profession and public confidence’. She also called on lawyers to provide pro bono and free legal services to the poor and marginalised.

‘To my fellow lawyers, … more often than not, we have been responsible for denying justice to the weak and vulnerable in our societies. … We have become obsessed with making money and not ensuring that justice is delivered to all,’ she said.

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2012 (Oct) DR 10.