Swazis deserve to know why controversial judge Ramodibedi got away

By Caroline James

In April 2015 Swaziland’s judiciary was rocked by a scandal involving its chief justice, two high court judges, the registrar of the high court, and the minister of justice. Bizarre scenes followed as the judges appeared in the dock in court to apply for bail, and the chief justice, Michael Ramodibedi, spent over a month locked up in his house evading arrest.

By the end of June, Ramodibedi had been dismissed by King Mswati III after an impeachment hearing, one of the judges was suspended, the other returned to the bench, and the minister of justice was fired (and charges against the registrar dropped). The minister has since been formally charged with seven counts of corruption, some of which relate directly to his relationship with Ramodibedi. In February 2016, the International Commission of Jurists issued a report from their fact-finding mission to Swaziland in May 2015.

The report paints a picture of a dysfunctional judicial system in the kingdom, and explains how the structure of the system itself has opened it up to abuse, allowing it to be used to settle political scores. The report illustrates how Ramodibedi was allowed to exercise such extreme power within a constitutional judicial system, but raises the question of whether Ramodibedi himself will ever really have to answer to the serious charges of fraud and corruption levelled against him.

Unfortunately, this would not be the first time Ramodibedi has avoided accountability. He is a controversial figure in southern Africa: he had previously resigned as president of the Seychelles Court of Appeal after that government expressed concern that his position on three different courts in three different countries meant that he could not give their court of appeal enough attention. And in Botswana his contract as a court of appeal judge was not renewed soon after the Botswana Law Society issued a statement questioning his “warped sense of justice”.

In his native Lesotho, Ramodibedi had been involved in a very public spat with the chief justice during his time as president of the court of appeal when cars carrying the two men jockeyed for prime position in an official cavalcade. He was also implicated in alleged fraud after claims emerged that he instructed his chauffer to say that he was at the wheel of Ramodibedi’s car when it was involved in an accident, when it was Ramodibedi’s son.

But it was in Swaziland where Ramodibedi’s disdain for legal principle and judicial conduct became truly apparent. The criminal charges and grounds for his impeachment were precipitated by a series of cases involving the Swaziland Revenue Authority (SRA), after the SRA in 2014 had informed him that the gratuity he received would be taxed as part of his remuneration at the highest taxation rate.

Ramodibedi took the SRA to court, arguing that it was unconstitutional to tax him at such a high rate. Ramodibedi had issued a directive in 2011 in which he stated that he, personally, would allocate all cases to the judges for hearing, and there was a “conflicted” judge serving on the high court bench at the time. This was Mpendulo Simelane, the former registrar of the high court who had recently been elevated to the bench, notwithstanding that he allegedly did not meet the constitutional requirements for judicial office.

Chief Justice Michael Ramodibedi Judge Mpendulo Simelane. (The Nation) — Chief Justice Michael Ramodibedi and Judge Mpendulo Simelane. (The Nation)

Ramodibedi allocated his case against the SRA to Judge Simelane even though he had been involved in the early stages of litigation in his capacity as registrar, and he found in Ramodibedi’s favour. At the same time, Ramodibedi himself presided over a separate case involving the SRA, despite his personal involvement in legal action against the SRA. These events, combined with Ramodibedi’s refusal to issue an arrest warrant for the minister of justice for suspected corruption, alerted Swaziland’s Anti-Corruption Commission, which then laid 23 criminal charges against Ramodibedi, including charges of abuse of power and defeating the ends of justice. Ramodibedi refused to surrender and locked himself in his house, which led to a farcical standoff between the chief justice and the Swazi Royal Police.

The Judicial Service Commission (JSC) then commenced with impeachment proceedings – a process which Ramodibedi thwarted. Although he appeared at the first hearing he then retreated to hospital and unsuccessfully applied for the recusal of the JSC members presiding over the impeachment hearings, and thereafter challenged that refusal in the high court. He then sought a recusal of the high court judges who were to hear the matter of the JSC members’ recusal, and when that was refused appealed to the supreme court. Nonetheless, the JSC recommended that he be dismissed on the grounds of a “generally corrupt relationship” with the minister of justice, abuse of office in the two cases involving the SRA, and of unlawfully obtaining a judgment in his favour by appointing Judge Simelane to hear his case against the SRA.

King Mswati accepted the JSC’s recommendation and removed Ramodibedi as chief justice in June 2015. The criminal charges were dropped which enabled Ramodibedi to leave Swaziland for South Africa where he is now based. But news of similar incidents surfaced last year when sheriffs in South Africa were unable to serve summons on Ramodibedi in respect of a claim by First National Bank in Swaziland for unpaid loans as he barricaded himself inside his house in Ladybrand.

Although a default judgment has been issued in Swaziland in favour of First National Bank, with the dismissal of the criminal charges in Swaziland it seems unlikely that Ramodibedi will face criminal sanction in Swaziland. But Swazis deserve to know how and why Ramodibedi was able to operate the judiciary as his own personal fiefdom and whether anyone will ever be held responsible for that dark period in Swazi judicial history. The SRA cases were not the first time that Ramodibedi’s competence and independence were questioned, and Swaziland was not the first country to have employed him under a cloud of suspicion. By acting decisively on the serious criminal charges made against him, Swaziland had the opportunity to be the last. Unfortunately, it remains to be seen whether that will be the case.

Caroline James is a freedom of expression lawyer at the Southern Africa Litigation Centre.