Africa’s judiciary on trial: ‘Islands of integrity’ are drowning fast

Alexander Bickel, one of America’s best-known constitutional lawyers, wrote a book on the judiciary called The Least Dangerous Branch.

Bickel’s argument is subtle but the central point is that compared with the executive — which has the power of the sword — and the legislature — which has the power of the purse — the judiciary — armed only with the power of judgment — is the least dangerous of the three arms of government. It is not an argument many in Africa would find persuasive. At least not in Kenya, Lesotho, Swaziland, Botswana or Ghana.

In Kenya, the Judicial Service Commission has just found that there is enough evidence of misconduct against Justice Philip Tonui of the Supreme Court to warrant a tribunal. And if it is true that he took a $2 million bribe to rule one way rather than the other the inevitable question will be, “Who else?” For if it is true that he was bought to deliver a corrupt judgment, his vote alone in a court of five would not have been enough and it would be silly to spend such a sum without an assurance that at least three votes were available.

Many Kenyans are understandably shocked that the judiciary has come to this perilous pass so soon after a constitutional makeover that held out so much promise. They should not be. Judges in Africa have been no less vainglorious or monstrous in their greed than presidents and parliaments. Or so the following colourful stories of judicial misbehaviour from Lesotho, Swaziland, Botswana and Ghana suggest.

Lesotho

Lesotho is a good place to start. Since 2012, the judiciary there has been in a never-ending crisis. The president of the Court of Appeal, who has barely been two years in office, is facing tax evasion charges. His predecessor was forced out for insurance fraud and corrupt payments. The run-up to his departure is the stuff of comedy.

It began rather pettily: As an ego-driven catfight between Justice Mathealira Ramodibedi, the then president of the Appeal Court, and the former chief justice, Mahapela Lehohla. Justice Ramodibedi, a citizen of Lesotho, was simultaneously the chief justice of Swaziland where his ties with King Mswati III nearly brought the court to ruin, a story that follows shortly.

By virtue of being the head of the highest court in the country, Ramodibedi believed himself senior to chief justice Mahapela Lehohla, the administrative head of the judiciary. The brawl got vicious and the judiciary threatened to unravel. One session of the Court of Appeal had to be cancelled and the judiciary split amid mutual recriminations.

The unseemly contest unsettled even foreign observers. Addressing the Commonwealth Magistrates’ and Judges’ Association, CMJA, in Zambia in 2014, the president of the association, John Z Vertes, lamented that fights like this “will undoubtedly have a debilitating effect on the other judges and detrimentally affect the public’s trust and confidence in the justice system.”

The prime minister then, Pakalitha Mosisili, was eventually asked to arbitrate. With a whiff of partisanship, he told the chief justice that he was the junior judge. But, dalliance with the executive is never desirable. As Vertes pointed out in his address: “There is a danger in inviting the executive to intervene in matters falling within the purview of the judiciary” because it “may well create the perception that the judiciary is dependent on the executive.” This, he said, “undermines the principle of separation of powers and the independence of the judiciary.”

Sure enough, Ramodibedi’s pre-eminence was short-lived. In 2012, Lesotho held an extremely divisive General Election. The election was won by an opposition alliance and the new prime minister, Thomas Thabane, understandably, wanted to be rid of Ramodibedi his predecessor’s man in the judiciary.

Central to the government’s case against Ramodibedi were his ties to King Mswati III of Swaziland to whom Ramodibedi had lately given three cows, a gesture of deep filial loyalty in Swazi pastoralist culture. The Lesotho government disliked the optics of this gift, charging that it undermined the public perception of judicial independence.

Initially, Ramodibedi pushed back against government efforts by getting court orders from supportive judges. The government responded by initiating impeachment charges for insurance fraud. It appeared that Ramodibedi had made false representations after an accident involving his official vehicle. He had instructed his driver to accept culpability for the accident and based on this, the insurance company had paid out nearly $30,000 in repair costs. Later, the insurance company found out that Ramodibedi had lied: It was actually his drunken son who had been driving the vehicle at the time of the accident.

Ramodibedi tried to block the impeachment but his efforts failed after his own court, the Court of Appeal, rejected the claim that the tribunal was appointed in a flawed manner.

The latest is that with the return of Pakalitha Mosisili as prime minister early last year, Ramodibedi is hoping for a return to high judicial office in Lesotho.
He resigned just before the tribunal — which included three retired South African judges — began its hearings.

Swaziland

But Ramodibedi was not done: His judicial wrecking career was to continue in Swaziland, where he was chief justice at the time of his judgeship in Lesotho. If in Lesotho Ramodibedi was a vainglorious self-promoter, in Swaziland he was a freebooter who converted the judiciary into a feedlot for himself, his allies and the king.

On his appointment on an indeterminate contract by King Mswati III in 2010, he called himself makhulu baas — the big boss — a term with offensive and racist overtones. He soon proved himself a lackey of the monarch in a series of inept and sycophantic decisions. In 2010, he suspended Judge Thomas Masuku of the High Court because he had ruled against the police and in favour of Swazi villagers whose cattle the police had confiscated and joined to the king’s herd.

In his judgment, Judge Masuku had noted that the King had recently urged Swazis to obey the law and concluded, innocently enough, that, “It would be hard to imagine that His Majesty could conceivably speak with a forked tongue, saying one thing and authorising his officers to do the opposite.”

It is this statement that the chief justice objected to, saying that it was an insult to the king. So he asked the minister of justice to dismiss Masuku. The minister hesitated, was fired by King Mswati and a more amenable relative was appointed to effect the dismissal.

Suing the king

That same year, a local businessman tried to sue the king for expropriating his hotel. Ramodibedi immediately issued a directive immunising the King from the lawsuit. In 2013, he had two lawyers who published two articles criticising him jailed for two years for contempt of court.

In 2013, King Mswati conferred the Order of Merit on Ramodibedi, who was then facing a three-month-long strike from lawyers protesting his malign management of the judiciary. The Swazi Solidarity Network, an NGO, said of Ramodibedi that “in the high court of public opinion” the “chief justice is viewed as the worst chief justice the country has seen, the king’s lapdog.”

The prime minister, Mswati’s side-kick and business partner Barnabas Dlamini, rushed to the defence of the chief justice, commending him for his good work. It is instructive that Dlamini was himself appointed under a legal cloud. When he became prime minister in 2008, he was in fact not qualified, not being a Member of Parliament as required by the Constitution. He is also alleged to be a major land-grabber.

But, like all sycophants, Ramodibedi soon fell out with the king for reasons that are not entirely clear. His problems started in 2013 with a notice by the Swaziland Revenue Authority (SRA) that his gratuity would be taxed at the rate of 33 per cent instead of the 15 per cent he had previously paid.

Ramodibedi not only sued the SRA but also audaciously allocated the case to a well-known ally, former registrar Mpendulo Simelane, who ruled for Ramodibedi even though the SRA had asked that he disqualify himself. The decision outraged Members of Parliament who lamented the judicial trend whereby politically sensitive matters, including the SRA case, were allocated by the chief justice to judges considered dependable.

Particularly self-serving was the fact that amid his quarrels with SRA, Ramodibedi also presided, inappropriately, over a dispute between the SRA and Impunzi Wholesalers, a Chinese-owned business. The SRA was investigating Impunzi for a Customs scam involving imported quilts. The quilts had been imported with a declared value of $1.50 a piece but subsequently shipped to South Africa with a much higher value.

A joint investigation by the South African and Swaziland authorities concluded that Swazi revenue had lost between $1.6 million and $4 million from these differential values. The SRA therefore revised the valuation of the quilts to $14.33 a piece; seized a large consignment of the quilts that had just come into the country and threatened to confiscate them if Impunzi failed to pay the newly assessed duties of $8 million. Impunzi sued.

In February last year, the High Court dismissed the application on a preliminary ground raised by the SRA. Impunzi then appealed to the Supreme Court where, in March 2015, Ramodibedi heard the appeal, even though he was in the middle of his own dispute with the SRA over his own taxes. He overruled the High Court; declared SRA’s new assessment wrong, restored the earlier $1.50 valuation, and ordered the SRA to pay both the legal costs and the costs of seizing the goods.

In the aftermath of these goings-on, a full blown corruption investigation into the justice sector was initiated and warrants of arrest were issued for chief justice Ramodibedi, Judge Mpendulo Simelane and the registrar of the High Court on the twin charges of conspiring to defeat the ends of justice and abuse of power.

When he learnt of the warrants, Ramodibedi barricaded himself in his house for 38 days; threatened to shoot the policemen who had gone to arrest him; persuaded another judge to cancel the warrant and succeeded in having the charges dropped so that he could sneak out of Swaziland.

With the disgraced chief justice safely away in South Africa, arrests quickly followed: Judge Mpendulo Simelane for his refusal to recuse himself in Ramodibedi’s tax case; Judge Jacobus Annandale for rescinding the arrest warrant and High Court registrar Fikile Nhlabatsi for providing a fake order rescinding the warrants of arrest against the chief justice and Judge Simelane.

Botswana: Fights and witchcraft

And so to Botswana, another country in which Ramodibedi had once served. Here an ugly fight, complete with arcane stories of witchcraft, has erupted between the executive and the judiciary and has raged on for nearly two years now. It began, rather innocuously, as a false claims investigation by the Chief Justice Maruping Dibotelo against four High Court judges whom he accused of receiving housing allowances that they were not entitled to.

At the instigation of Dibotelo, the police launched inquiries into the $80,000 false claims against four High Court judges: Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang.

Twelve judges of the High Court rushed to the defence of their four colleagues and petitioned the Judicial Service Commission (JSC) to impeach the Chief Justice.

Claiming that the housing allowance issue was actuated by malice, they accused Dibotelo of being a racist, partly for his open hostility to the presiding judge of the Court of Appeal, Justice Kirby, a white man from South Africa. More seriously, they claimed that the Chief Justice had deeply held beliefs in witchcraft, which complicated his relationship with other judges and judicial staff.

Dibotelo, they said, occasionally claimed that his traditional doctor had warned him that his colleagues were bewitching him and was confident that the omens of this would be clear in the coming rainy season when lightning would strike with catastrophic effect. They threatened to reveal even more sensitive material behind closed doors.

True or not, the claims in the petition painted a grotesque picture. They also incensed President Ian Khama, the CJ’s ally, who promptly set up a tribunal to investigate the four offending, now suspended judges. The story in Botswana is that President Khama initially intended to suspend all the 12 who had signed the petition but it appears that the Chief Justice had balked at this, perhaps worried about the effect on the judiciary and on his reputation, both at home and abroad.

President Khama’s strong reaction led to an ever-deepening crisis. Three of the 12 judges who had signed the petition withdrew and wrote grovelling apologies to Dibotelo and the president.

The Sunday StandardReporter, a Gaborone weekly, tells the craven story of one of the three, Justice Kholisani Solo, “down on his knees and grovelling at the feet of President Khama and the Chief Justice,” obsequiously “declaring his undying loyalty.” Pining for forgiveness he said how indebted he was “to President Khama and the Chief Justice for standing by him in his hour of need.” Snivelling, Solo continued, “I express my loyalty to the Chief Justice and the appointing authority who stood for my appointment when I was in my moment of despair.”

Ghana

In Ghana, the last of the case-studies here, the story arises not from factional infighting in the judiciary but from a two-year undercover investigation into judicial corruption by investigative journalist Anas Aremeyaw.

In September last year, Anas released a film Ghana in the Eyes of God: Epic of Injustice. It was a documentary based on 500 hours of secret footage. It claimed that 34 judges and magistrates had demanded bribes and sexual favours in order to rule in favour of accused persons.

Anas’s modus operandi was relatively simple: He would pretend to be a relative or friend of an accused person and offer to pay judges in exchange for lenient sentences.

Twelve High Court judges and 22 from the lower courts were filmed accepting bribes and in one case, a goat. The explicit pictures of blatant bribe-taking by senior judicial officers sent a frisson through the legal establishment. Some judges even argued that Anas should be jailed for contempt. The government smartly sidestepped a potential public furore by granting him immunity.

Anas’s documentary

Subsequently, Ghana’s Judicial Council carried out investigations based on Anas’s documentary, and in December last year dismissed 21 lower court judges. Only one judge was discharged for lack of evidence. Seven judges of the High Court have now been suspended. Of the remaining five, two have since retired. One has been cleared, a case of mistaken identity, and the last two have filed lawsuits against Anas.

The film itself has been a hit: Playing to overflowing cinema halls in Accra and opening to great acclaim in Kumasi, the second largest city. Unfortunately, further screenings have now been blocked by the High Court, on application by the one of the two judges disputing its veracity.

The documentary has surprised officials: The 1992 Constitution was thought to have put the judiciary on a firm footing by giving it autonomy from the executive, augmenting the judges’ salaries and improving their conditions of service. Yet, as the immediate former president of the Ghana Bar Association Nene Amegatcher and member of the Judicial Council told the press in the wake of Anas’s documentary: “I was surprised by the numbers — I thought there would be one or two judges perhaps — so I was very shocked by the number of judges involved.” He noted especially that he thought that improvements in remuneration would enable judges “to live comfortable lives without collecting any sort of bribes from parties.”

Many East Africans can relate to Nene’s sentiments. And therein lies the problem. What all these stories show is the central fallacy of judicial reform in Africa: The silly notion that coddling judges with high salaries and super-perks is a cure for greed and corruption. The truth is that in high impunity environments where money buys access and prestige and the country is not morally conflicted about illicit wealth, it is naïve to expect courts to be islands of integrity.

Wachira Maina is a constitutional lawyer.