1 July 2011
Only King has right to charge judge - lawyers
MBABANE - The actions of the Chief Justice, Michael Ramodibedi, in slapping Judge Thomas Masuku with 12 charges have been declared unconstitutional by Lawyers for Human Rights.
Speaking during an interview in his office, the Chairman of the organisation, Mandla Mkhwanazi, said that, according to the provisions of the Constitution, it is only the King who has the right to lay charges against a judge.
Mkhwanazi, therefore, called upon the Chief Justice to withdraw the charges.
"We call for the immediate withdrawal of the charges against the judge. We call for strict compliance with the provisions of the Constitution. We lament that the issue of the charges came at time when the complement of judges at the High Court is strained. If any judge were to be removed at this time, it would result in a backlog of cases which the country cannot afford at the moment," Mkhwanazi said.
Mkhwanazi said procedurally the CJ, after receiving notice of a matter of misconduct concerning a judge, has to refer that matter to the JSC; which then in turn informs the King of the alleged misconduct.
Mkhwanazi went on to say it is unconstitutional for the Chief Justice to receive complaints about the judge and act on them without involving the JSC.
"Our view, as Lawyers for Human Rights, is that the alleged receipt of complaints by the CJ in total exclusion of the JSC is unconstitutional. Secondly, for the CJ to act on those complaints in his capacity as the Chief Justice without the apparent involvement of the JSC and the King is also unconstitutional.
"As lawyers, we would like to emphasise the principle of the independence of the Judiciary as set out in Section 141(1) of the Constitution. The independence of the judiciary also entails the independence of the judge in decision-making," Mkhwanazi elaborated.
He went on to say that, in this case, the CJ abused his powers as Chief Justice because he has no discretion to exercise disciplinary control over judges.
"In terms of Section 160, it is only the JSC which can exercise disciplinary control over judges. In this case, the CJ acted ultra vires (outside his powers as CJ). It is clear from this Section that disciplinary measures against judges vest with the King and the JSC," he said.