Wakilii

Justice Thomas S. Masuku v. The Kingdom of Swaziland (Communication 444 of 2013)

African Commission on Human and Peoples' Rights · [2021] ACHPR 518 · 2021 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication submitted to the African Commission on Human and Peoples' Rights challenging removal from judicial office following disciplinary proceedings
Decision
Communication upheld; violations found; State urged to compensate victim and reform JSC legal framework

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that Swaziland violated Articles 1, 7, and 26 of the African Charter. The Chief Justice's participation in the JSC disciplinary proceedings despite being connected to several charges violated the right to an impartial tribunal. The refusal to grant a public hearing when requested violated fair trial rights. Charging the complainant with serious misbehaviour warranting removal from office partly on the basis of language used in a written judgment constituted interference with judicial independence.

Outcome

Communication upheld; violations found; State urged to compensate victim and reform JSC legal framework

Facts

Justice Thomas Masuku was appointed Judge of the High Court of Swaziland in 1999. In 2003 he was demoted to the Industrial Relations Court but was reinstated eight months later. In June 2011, the Chief Justice, as Chairman of the Judicial Service Commission, laid twelve charges of serious misbehaviour against him and suspended him pending inquiry. The charges included failing to deliver judgments on time, defying directives, insulting the King by using the words 'forked tongue' in a written judgment, and various acts of insubordination. The JSC held disciplinary proceedings in August 2011. The Victim's preliminary objections, including that the Chief Justice should recuse himself and that the hearing should be public, were rejected. The JSC found him guilty and recommended removal. In September 2011, the King removed Justice Masuku from office. The Victim submitted a communication to the African Commission alleging violations of his rights to a fair trial and judicial independence.

Issues

  1. Whether the Judicial Service Commission disciplinary proceedings violated the complainant's right to a fair trial under Article 7 of the African Charter.
  2. Whether the Chief Justice's participation in the JSC proceedings as chairman, despite being connected to several charges, violated the complainant's right to an impartial tribunal.
  3. Whether the refusal to hold the JSC disciplinary proceedings in public violated the complainant's right to a fair public hearing.
  4. Whether charging and removing the complainant from judicial office for language used in a written judgment violated judicial independence under Article 26 of the African Charter.
  5. Whether domestic remedies were available and effective in Swaziland, particularly in light of the Practice Directive barring suits against the King.

Orders

  • Communication declared admissible.
  • Violation of Articles 1, 7 and 26 of the African Charter found.
  • Government of Eswatini urged to compensate the Victim a fair and equitable amount for the violation of his right to a fair trial.
  • Government of Eswatini urged to request the Judicial Service Commission to review the charges which were laid against the Victim.
  • Government of Eswatini urged to review the Judicial Service Commission's legal framework to include a provision which allows judicial officers to seek judicial review of disciplinary proceedings.
  • Government of Eswatini urged to review the Judicial Service Commission's legal framework to include a provision which entitles judicial officers facing disciplinary proceedings to object to the participation of a member of the Commission on grounds of bias.

Rules and key headnotes

Administrative Law — Fair Hearing — Impartial Tribunal — Bias
A tribunal member who has a connection with the case or charges before the tribunal is under an obligation to recuse himself to preserve the impartiality of the proceedings, and failure to do so violates the right to an impartial tribunal.
Administrative Law — Fair Hearing — Public Hearing — Right to Public Trial
Where a party to disciplinary proceedings expressly requests a public hearing and no valid exception applies, the tribunal should grant the request, and failure to do so violates the right to a fair public hearing.
Human Rights — Judicial Independence — Disciplinary Proceedings — Interference with Judicial Functions
Charging a judge with serious misbehaviour warranting removal from office on the basis of language used in a written judgment amounts to interference with judicial independence and exerts improper pressure on the judiciary.
Administrative Law — Exhaustion of Local Remedies — Availability — Practice Directive Barring Suits
Where a practice directive bars the registration of suits against the head of state and the impugned decision is an act of the head of state, domestic remedies are not available even if judicial remedies generally exist in the legal system.
Human Rights — Fair Trial — Impartiality — Subjective and Objective Test
Impartiality of a tribunal is assessed both subjectively by the internal inclinations of the adjudicator and objectively by whether appearances raise doubts on impartiality, and subjective impartiality is presumed until proven otherwise.
Administrative Law — Judicial Service Commission — Quasi-Judicial Body — Fair Trial Guarantees
Principles of fair trial including equality of arms, opportunity to prepare defence, and right to respond to evidence apply to disciplinary proceedings of quasi-judicial bodies such as a Judicial Service Commission.
Human Rights — Judicial Independence — Removal of Judges — Grounds for Removal
Judges may only be removed from office for gross misconduct incompatible with judicial office or for physical or mental incapacity that prevents them from undertaking judicial duties, and removal on other grounds violates judicial independence.

Legislation cited (17)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Constitution of the Kingdom of Swaziland (2005) Section 11
  • Constitution of the Kingdom of Swaziland (2005) Section 21(11)
  • Constitution of the Kingdom of Swaziland (2005) Section 33
  • Constitution of the Kingdom of Swaziland (2005) Section 141(1)
  • Constitution of the Kingdom of Swaziland (2005) Section 152
  • Constitution of the Kingdom of Swaziland (2005) Section 158
  • Constitution of the Kingdom of Swaziland (2005) Section 159
  • Constitution of the Kingdom of Swaziland (2005) Section 173
  • Judicial Service Commission Act (1982) Article 7(3)
  • High Court Act Section 3
  • Universal Declaration of Human Rights Article 10
  • International Covenant on Civil and Political Rights Article 14

Cases cited (27)

  • Lawyers for Human Rights v. Swaziland (Communication 251 of 2002)
  • Sir Dawda K. Jawara v. The Gambia (Communications 147/95 and 149/96)
  • Marcel Wetsh'okonda Koso and others v. DRC (Communication 281 of 2003)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v. Zimbabwe (Communication 294 of 2004)
  • Egyptian Initiative for Personal Rights and Interights v. Egypt (Communication 334 of 2006)
  • Van Rooyen v. S (2002) 5 SA 246 (CC)
  • South African Personal Injury Lawyers v. Heath (2001) SA 883 (CC)
  • Law Society of Swaziland v. The Speaker of the House of Assembly and Another (Case No. 1145 of 2012)
  • Law Society of Swaziland v. The Swaziland Government and Two Others (Civil Case No. 743 of 2003)
  • Minister of Justice and Constitutional Affairs v. Stanley Wilfred Sapire (Civil Appeal No. 49 of 2001)
  • Article 19 v Eritrea (Communication 275 of 2003)
  • Chinhanto v Zimbabwe (Communication 307 of 2005)
  • FIDH and others v. Senegal (Communication 304 of 2005)
  • Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria (Communication 338 of 2007)
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe (Communication 284 of 2003)
  • Anuak Justice Council v. Ethiopia (Communication 299 of 2005)
  • Michael Majuru v. Zimbabwe (Communication 308 of 2005)
  • Liesbeth Zegveld and Mussie Ephrem v. Eritrea (Communication 250 of 2002)
  • Alfred B. Cudjoe v. Ghana (Communication 221 of 1998)
  • Kenneth Good v. Botswana (Communication 313 of 2005)
  • Priscilla Njeri Echaria v. Kenya (Communication 375 of 2009)
  • Civil Liberties Organization v. Nigeria (Communication 129 of 1994)
  • Zimbabwe Human Rights NGO Forum v. Zimbabwe (Communication 245 of 2002)
  • Dino Noca v. Democratic Republic of the Congo (Communication 286 of 2004)
  • Media Rights Agenda v. Nigeria (Communications 105/93, 128/94, 130/94, 152/96)
  • Maseko v. Commissioner of Police (Civil Case No. 1778 of 2009)
  • R v. Vusumuzi Dlaminu (Case No. 375 of 2009)

Full judgment

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Justice Thomas S. Masuku v. The Kingdom of Swaziland (Communication 444 of 2013) [2021] ACHPR 518 (19 July 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.