Report compiled by Kim Hawkey

To tie in with the theme of the conference, in its first session, 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, spoke on the suspension of the SADC Tribunal; while chairperson of the Kenyan Commission on Administrative Justice, Otiende Amollo, discussed processes and procedures for an efficient justice system; and Botswana High Court Justice Oagile Dingake provided a perspective on judicial independence in the SADC region. The session was chaired by vice-president of the SADC LA, Beatrice Mtetwa.

Judicial review in SADC: Strengthening judicial independence and access to justice

Judge Pillay spoke about the history of the SADC Tribunal as the judicial arm of the region and highlighted the importance of judicial review as a means of protecting individual rights and ensuring that governments are held accountable. He referred to several cases that had been heard by the tribunal to illustrate illegal government action and to highlight the importance of the role of the tribunal and of collective accountability in the form of checks and balances.

Judge Pillay referred to art 4(c) of the SADC Treaty, which contains principles that have been held to be both justiciable and enforceable. It reads:

‘SADC and its member states shall act in accordance with the following principles:

…

(c) human rights, democracy and the rule of law …’.

He also referred to art 6(1), which contains general undertakings that create legal obligations on states and ministers of justice, among others. It reads:

‘Member states undertake to adopt adequate measures to promote the achievement of the objectives of SADC, and shall refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this treaty.’

Judge Pillay said that one of the ways that the independence of the judiciary can be seriously compromised by the executive is that the latter can dissolve a court of law and not renew the contracts of its judges, as happened in the case of the SADC Tribunal in 2010 when the tribunal was effectively dissolved and the terms of its judges were not renewed. He said that this was despite the fact that the judges, including himself, had a reasonable expectation that their contracts would be renewed.

‘Instead we were sent packing overnight with no explanation or hearing. … It is ironic that persons before the court had the right of redress, yet its judges did not. We asked for arbitration or mediation, but they have refused. So far, we have received no word about this,’ he said.

He added that this reminded him of the words of the jurist Alexander Hamilton that the judiciary is the ‘weakest and least dangerous department of government’.

In conclusion, Judge Pillay made the following comments and recommendations:

• SADC organs are bound by the principles of human rights, democracy and the rule of law, which are justiciable and enforceable.
• The Council of Ministers and the SADC summit did not act in accordance with the principles of human rights, democracy and the rule of law when it took the decisions in May 2011 and the recent decision regarding the tribunal in August 2012.
• The judicial review powers of the tribunal should remain intact. Judge Pillay said that 80% of cases that came before the tribunal involved individuals. ‘What will happen now to those people who are denied the right of access to the courts in their countries? They will be left without any redress,’ he said
• There is an inherent tension between the political powers of the state and the judiciary.
• There is an indication that the complaint procedure in relation to the tribunal should be simplified to increase access to justice.
• In the interests of justice, the ‘unanimity rule’ in terms of art 10(9) of the SADC Treaty, which provides that ‘decisions of summit shall be taken by consensus’, should not allow a state to be judge and party to a matter. A member state with a direct interest in a matter should not take part in the process, Justice Pillay said, adding that some countries have explained that because of the consensus rule their hands were tied. However, Judge Pillay said that this was not true.

In response to a question from a delegate as to whether the decision in respect of the tribunal was the result of ‘a problem with the way its judges were functioning or whether it was an act of lawlessness’, Judge Pillay said: ‘I can assure you that there is nothing against the judges; we would know if there had been. We do not know the exact reason why this was recommended. … Some countries do not accept that decisions of their highest courts are being quashed by the tribunal. But this is the essence of a regional tribunal. They did not act in accordance with the rule of law and human rights and they were bound to observe those principles, which are justiciable and enforceable,’ he said.

Strengthening the efficiency of the justice delivery system through judicial reforms: The case of Kenya

Commissioner Amollo spoke about how the Kenyan judiciary had regained public confidence after experiencing a period of serious institutional challenges that hampered its ability to perform effectively.

Commissioner Amollo said that following the post-election violence that took place in the country in 2007, there was a general acceptance that a new constitution and judicial reform were necessary.

This led to the establishment of a committee of experts (COE) to identify and resolve outstanding issues before preparing a draft constitution and to ensure that the new constitution would reclaim confidence in the judiciary, which had by this point gained much distrust from the country’s citizenry.

Commissioner Amollo said that submissions to the commission on the judiciary were ‘virtually unanimous on one point: The judiciary had to be reformed’. In terms of the submissions, there were two broad proposals on how this should be done, namely –

• the entire judiciary should be reappointed (with all judicial officers, or at least all judges, being treated as having lost their jobs but being permitted to reapply); and
• judicial officers remaining in office, but being required to take a new oath and undergo a vetting process.

Commissioner Amollo said that the ‘gentler’ approach, namely the second one, was adopted and a process of vetting began and is still under way.

In terms of the vetting process, he said that all judges were afforded the opportunity to resign (with appropriate benefits) and those who did not do so would be vetted by an independent commission to ensure ‘that any complaints against sitting judges were properly considered’.

This entailed judges continuing in office while a phased vetting process was under way, which was acknowledged as being less disruptive than filling all judicial positions anew, Commissioner Amollo said. He added that some ‘interesting results’ had been produced by the vetting process and to date a number of judges had been removed from office as a result. These included:

• Four judges in the Court of Appeal for reasons such as failing to summon the ex-President to testify in a judicial commission of inquiry on the loss of state funds; acting corruptly in a land transaction; delivering pro-government judgments; and for being insensitive to litigants.
• Three superior court judges for reasons including delays of up to four years to deliver judgments; a misuse of judicial power to issue blanket orders to insurance companies to the detriment of claimants; and a lack of court management skills.

Commissioner Amollo highlighted some of the benefits of a reformed judiciary, including the manner of appointment of judges through, for example, public interviews and the re-establishment of the Judicial Service Commission (JSC). The effect, he said, was ‘immense public confidence in the judiciary’, which had ‘almost totally been reclaimed’.

He added that there had subsequently been ‘bold decisions that could not be imagined previously’. These included a decision by the High Court to declare the initial appointment of the Chief Justice unconstitutional after the President failed to follow the correct procedure. ‘The President thereafter withdrew the nominations and remitted to the JSC the task of competitively selecting a Chief Justice. This enhanced public confidence in the judiciary to high levels,’ Commissioner Amollo said. In another matter, the President’s appointment of county commissioners was also declared unconstitutional by the High Court for breaching gender and consultation requirements. Another example cited by Commissioner Amollo was the issuing by the High Court of an arrest warrant against the Sudanese President for war crimes under the International Criminal Court system.

One final example, which Mr Amollo said had raised ‘the integrity bar of public conduct within judicial service’ to a new level was the manner in which the ‘saga’ surrounding Deputy Chief Justice Nancy Baraza was being dealt with.

During a shopping trip, Judge Baraza allegedly bypassed a security guard conducting security checks, who insisted on conducting a body search on the judge.

‘An altercation erupted resulting in the [judge] confronting and threatening to shoot the guard with a gun. She further pinched her nose,’ Commissioner Amollo said.

This resulted in a media report of the incident, which was met with a public outcry. As a result, the JSC called for an emergency session in which it ordered an investigation into the matter. A tribunal was subsequently established to undertake this. The tribunal found that the Deputy Chief Justice was unfit to hold office on account of gross misconduct and an appeal is currently lying with the Supreme Court, Commissioner Amollo said, adding that such a matter ‘would not have seen the light of day’ in the past.

In conclusion, Commissioner Amollo highlighted some lessons that could be taken from the Kenyan experience, including:

• Judicial reform will always be resisted – by the judiciary and those with other interests.
• To have an effective judiciary, there must be independence in terms of its members. However, functional independence and institutional independence were also necessary.
• While it is very difficult to cause judicial transformation, if successful it will galvanise transformation in all other sectors.
• Care must be taken to ensure that transformation of the judiciary does not amount to judicial lynching.

Judicial independence in the southern African region: The case of Botswana

Justice Dingake said that there were three reasons why the judiciary should be independent, namely –

• to guard against the abuse of executive power;
• to uphold human rights; and
• to assure the public that judges are impartial and fair.

Judge Dingake said that the idea of independence of the judiciary was not a complicated one – it meant deciding matters free from improper influence, ‘from any force whatsoever’, and deciding issues independently.

‘Lawyers and judges must only owe their loyalty within the four corners of the constitution,’ he said and made it clear that judges ‘do not have bosses’.

Judge Dingake noted that there were a number of threats to the independence of the judiciary, including by judges themselves.

‘One of greatest threats to the judiciary may be the judges themselves. When judges become a threat to the judiciary because they choose not to speak, they are complicit in destroying the independence of the judiciary,’ he said, noting that judges possessed an asset ‘in abundance’ in the form of fearlessness or courage, which they should use.

He said that the following, in his view, were necessary for an independent judiciary to function optimally:

• Lawyers must not be timid or passive, but must be informed and independent.
• The Bench should not be complicit in activities that undermine the judiciary.
• Jurisprudence should not be anchored too much in legal positivism, for example with a focus on technicalities.
• The judiciary must not be cash starved.
• There must not be a concentration of power in one arm of the state.
• Judges must remain truly independent.

In conclusion, Judge Dingake said: ‘Judicial independence, to achieve its great purpose, goes beyond the common assertion that we must safeguard the independence of judges; it also requires judges to judge independently, fearlessly and with complete fidelity to the constitution.’

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

This article was first published in De Rebus in 2012 (Oct) DR 13.