The Constitution of the Kingdom of Swaziland became law on July 26, 2005. It is the Supreme law of the land. This means all laws that are incompatible with it are invalid. It imposes a duty on the King and all citizens to uphold and defend it.
One of the most important provisions of the Constitution is the establishment of an independent judiciary. It does not however define what independence means. It is common knowledge though that the bare minimum requirement for independence of the judiciary is that judicial officers must be free to decide cases without interference or control by any person or institution. The test for such independence is objective. It is whether a well-informed and reasonable person should perceive the judiciary as independent.
Independence of the judiciary is dependent on objective guarantees or conditions. One guarantee is the concept of security of tenure. Security of tenure means judicial officers, unlike Cabinet Ministers, do not serve at the pleasure of the person who appoints them.
Judges remain in office until they reach the mandatory age of retirement. Judges can only be removed from office for misbehaviour or inability to perform their judicial duties whether arising from infirmity of body/or mind or whatever cause.
The stated misbehaviour or inability must be established by an independent body after following a fair process. Where the independent body recommends removal of a judge, the affected judicial officer must have the right to challenge such a recommendation in court.
Our constitution appears to protect the tenure of judicial officers. After all, they are expected to remain in office until they reach the mandatory retirement age of 75 years. They can only be removed for serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind. I will address the fairness of the removal process in a future article.
The Constitution expressly allows for the appointment of acting judges to the superior courts, which are the Supreme Court and the High Court. The appointment of acting judges is controversial the world over because they have an insecure tenure.
These judges are usually appointed for short periods of time which may lead to a perception that they merely curry favour with the appointing authority in order to obtain reappointments for another term or to be appointed permanently.
Some commentators hold the 2014 case of Law Society of Swaziland v Simelane N.O. And Others as an example of the dangers of appointing acting judges. The issue in this case was whether a judge of the High Court, Mpendulo Simelane, was constitutionally appointed. Three acting judges presided over the case.
They held that Simelane was rightfully a Judge. Their reasoning was that he was appointed by the King who is regarded by the laws of the land as immune from suit and therefore can do no wrong.
The acting judges gave no consideration whatsoever to the provision in the Constitution which obliges the King to uphold and defend it. Two of the three acting judges were legal practitioners in private practice while the other was a substantive judge of the Industrial Court.
One of the two is now a civil servant, joining the Attorney General’s office as a senior member of the staff. The other has been appointed acting judge of the Industrial Court multiple times over the past two years. Recently he was appointed a member of the Judicial Service Commission (JSC), the very body responsible for advising the King on judicial appointments.
In 1982 the International Bar Association (IBA) adopted minimum standards for judicial independence. Article 23 of the standards states: “the institution of temporary judges should be avoided as far as possible except where there exists a long historic democratic tradition”.
This concern about the appointment of temporary judges was reiterated in 2008 by the International Association of Judicial Independence and World Peace in its Mount Scopus International Standards of Judicial Independence.
Despite international concern about the frequent use of acting judges, many Constitutions of Commonwealth countries allow for the appointment of temporary judicial officers.
Two justifications are often advanced for appointing acting judges. The first is that acting judges help to reduce heavy backlogs in the court’s roll. Secondly, it is argued that acting appointments provide an opportunity for aspiring judges to gain judicial experience before making themselves available for permanent appointment.
This is well and good provided the appointment of acting judges is on merit, fair, transparent and rational. These criteria are set out in the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers which were developed by the Southern African Chief Justices’ Forum (SACJF) in 2018.
The country’s Chief Justice is a member of the SACJF and therefore we cannot accuse this organisation of setting up a criteria steeped in Western standards that disregard African realities.
The framers of the Constitution of Swaziland were alive to the criticism directed at insecure tenure of acting judges. For this reason, they limited the circumstances under which and the duration for which they could be appointed.
The Constitution permits the appointment of acting judges to the Supreme Court and the High Court in three situations:
- Where, for a short duration, the prescribed complement of the Court is unlikely to be realised. The King, on the advice of the Chief Justice, can then appoint an acting judge for a maximum of three months. The three months is renewable once.
- Where the exigencies of the situation require. In this case the King, again on the advice of the Chief Justice, can appoint a temporary judge for a maximum of three months renewable once.
- The Chief Justice can consult the JSC and appoint an acting judge for one month. This appointment is non-renewable.
The prescribed complement means the number of posts for that court. The Supreme Court has a prescribed complement of six judges (including the Chief Justice). The prescribed complement of the High Court is 13 judges.
It logically follows therefore that the King can appoint an acting judge where, for a short period, there are less than six judges at the Supreme Court and less than 13 judges at the High Court.
In 2019 the King made at least six acting appointments to the Supreme Court. In February this year, the King appointed three acting judges for three months and three weeks (February 8 to May 31, 2019).
What was strange though was that the Supreme Court did not have temporary vacancies in the period. For this reason, the three acting appointments should not have been made. Secondly, the period of the acting appointments exceeded the time stipulated by the Constitution.
Thirdly, the three acting judges were not substantive judges of the High Court. Two of them were in fact in private practice while the third is a retired public servant. Constitutionally, there is nothing requiring acting judges of the Supreme Court to be High Court judges.
However, appointing High Court judges to act in the Supreme Court increases guarantee for judicial independence because a person who is already a judge enjoys security of tenure.
On the other hand, a legal practitioner in private practice or a retired government lawyer has no security of tenure whatsoever and as a result his or her appointment heightens the risk judicial independence. Lastly, the criteria used to appoint particular lawyers to act at the Supreme Court is not clearly defined and has not been publicly declared.
Later in the year, July to be exact, the King made another three acting appointments to the same Supreme Court. The duration of these acting appointments this time around was five months–July 15 to December 15, 2019.
Again here, the Supreme Court does did not have temporary vacancies. It cannot therefore be said that these appointments were necessitated by the prescribed complement not being realised.
In any event, the duration of the appointments exceeds the maximum stated in the Constitution. Frankly, the appointments are patently unconstitutional. Exacerbating matters is that two of the three appointees were already acting Judges from February.
Their appointment was effectively renewed for five months. This means that by December 15, 2019 they would have acted as judges of the Supreme Court for an aggregate of almost nine months much against the Constitutional ceiling of six (two terms of three months each).
In the same period the King has not made any acting appointments to the High Court. This is constitutionally sound because there have been no vacancies in the court to warrant the appointment of acting judges.
The Constitution envisages a situation where the court’s prescribed complement can be realised but for some urgent and unexpected reasons there are not enough judges to carry out work. Such instances include instances where judges recuse themselves or where the cases enrolled for hearing are more than the cases the court ordinarily hears i.e the roll is heavy.
The justification often advanced for appointing acting judges to the Supreme Court is that they are required to hear reviews of the Supreme Court’s own final decisions. In Swaziland the Supreme Court has the power to reconsider its own judgments in a procedure known as a “section 148 review”.
As already mentioned the Supreme Court has six judges and under normal circumstances three of them are enough to hear an appeal. A review application, however, has to be heard by five judges.
The three judges who heard the appeal are disqualified from hearing the review application. This leaves only three judges to hear the review. Consequently, a need arises for two more judges to be appointed temporarily to make up the full bench of five Judges.
This is why, so the argument goes, three acting judges were appointed in February and July 2019. However, this argument is laden with a lot of flaws. The first is that if this is true then two instead of three judges were needed to supplement the panel needed for a review application.
Secondly, it does not explain why High Court judges whose tenure is secure are continuously overlooked for appointment to to act on the Supreme Court for the purpose of hearing review applications.
Once their term is completed these Judges can always revert back to their substantive positions at the High Court. The absurdity of it all is that as a country we find ourselves with half of our Supreme Court Judges with no judicial experience prior to their elevation to the highest court of the land.
Making matters worse is that these acting judges have been hearing appeals instead of confining themselves to just review applications. The fact that the acting judges are not limited to review applications is an indication that the ‘exigencies of the situation’ is not the reason for the acting appointments.
It boggles the mind therefore why acting judges who have no security of tenure regularly sit to hear appeals? A court as important as the Supreme Court to be constituted by acting judges with no security of tenure is not an independent court as required by the Constitution.
The Chief Justice in consultation with the JSC is empowered by the Constitution to make an acting appointment to the High Court and Supreme Court for a non-renewable period of just one Month. This non-renewable appointment reduces the risk to judicial independence.
This year the Chief Justice has not, to my knowledge, used his power to make an acting appointment to the Supreme Court. The High Court is a different story however.
Here the Chief Justice made three acting appointments in January 2019. The challenge with his appointments though is that they were not transparent. For example, it is not clear why the appointments were made in the first place.
This obviously leads one to wonder if these appointments were rational and what criteria were used to make them. It may well be that the appointments were made to relieve the backlog in the High Court.
If that was the case, then one would expect the acting judges to have heard and finalised cases during their tenure. It seems, however, that they did not conclude any cases.
The Chief Justice has used his power of appointment liberally to make acting appointments to the Industrial Court and its appellate Court. These appointments can be dealt with briefly.
The Industrial Court and Industrial Court of Appeal are not superior courts. The Chief Justice’s power of appointment, as given by the constitution, only relates to superior courts.
What this means is that the Chief Justice acted outside of the scope of his powers and therefore unlawfully made acting appointments to both these courts. Given the foregoing a reasonable and well-informed person would therefore not perceive courts constituted by unlawfully appointed judges as independent.
The danger of acting judges is that it violates one of the fundamental guarantees of an independent judiciary–security of tenure. The Constitution permits the temporary appointment of judges but it envisages that such appointments will be made sparingly. Best practice in our own region is that acting appointments must be on merit, fair, transparent and rational.
Swaziland has not avoided the institution of acting judges as far as possible. On the contrary, we have made wide use of the institution in circumstances where it cannot be justified.
The effect of this is that our highest court, the Supreme Court, is regularly populated by temporary Judges who do not have security of tenure. Furthermore, the criteria for making the appointments are not clearly defined and publicly declared. A reasonable well-informed person would therefore not perceive the Supreme Court as an independent court.
Nguboyenja Khumalo is a Judge at the High Court of Swaziland. S/he uses the pen name Nguboyenja in celebrating of the first African to qualify as a lawyer in Zimbabwe. S/he writes in his/her personal capacity.