WHILE South Africans obsess over the Oscar Pistorius trial, a completely different kind of court case is riveting the politically savvy in neighbouring Swaziland and Lesotho.
Their leading judge – Michael Ramodibedi is president of the appeal court in Lesotho and chief justice in Swaziland – is charged by the Lesotho government in connection with fraud and financial irregularities, not to mention political and human rights improprieties, and he could shortly have to give an account of himself to a tribunal investigating whether he should be impeached.
Hard to know exactly the last straw for Maseru; which of the actions listed in the charges finally ensured Lesotho’s commitment to the impeachment option. But it could have been the unseemly dispute between Ramodibedi and Lesotho’s chief justice Mahapela Lehohla about which of them ranked higher in terms of protocol.
That dispute reached a climax when the driver chauffeuring one of them tried to overtake the vehicle conveying the other as they drove to – or from, depending on whose version you read – the king’s birthday party. The point of the overtaking, regarded variously as childish, dangerous as well as unseemly, and which allegedly endangered the lives of at least two pedestrians, was to ensure that the two vehicles travelled in the order of precedence regarded as correct by the passenger in the overtaking limo.
Lesotho’s chief justice has since left office, a move the government of that country welcomed, maybe even subtly engineered, and wants Ramodibedi to follow. Once both are out of the way the law can be fixed to stipulate clearly which of the two, the chief justice or the appeal court president, is the head honcho at the Palace of Justice in Maseru.
But the overtaking fiasco is just one in a very long list of complaints prepared for the investigating tribunal, some of which relate to Ramodebedi’s period of office in Lesotho and some to what he is alleged to have done in Swaziland.
This week Ramodibedi, in absentia, dominated debate during a crucial hearing on Tuesday 25 March, at the appeal court in Maseru packed with lawyers and members of the public. The appeal concerns his argument that he should have been given an opportunity to be heard before the decision was made by the king of Lesotho to appoint an impeachment tribunal.
Peter Hodes SC for Ramodibedi said natural justice demanded that his client be allowed to put his position before such a decision was taken. Gilbert Marcus SC for the Lesotho government said a ‘hearing before a hearing’ was not required and that in any event Ramodibedi had a number of opportunities to put his case but had not used the chance to do so.
Judgment has been reserved by the five appeal judges – all South Africans thus forestalling any recusal applications – but they are likely to make their decision urgently, knowing only too well from domestic experience the need for damaging disputes over judicial impeachment procedures to be finalised as quickly as possible.
In the meantime the list of charges that the Lesotho government wants the tribunal to consider and the way in which the impeachment process began, all make for a startling read.
Ramodibedi says that he paid a pre-arranged courtesy call on the prime minister of Lesotho, Tom Thabane, at the end of the April 2013 appeal court session. He found other ministers present and during the conversation the prime minister ‘asked that (Ramodibedi) step down’ from his position as president of the court of appeal.
There was a ‘perception’ that he and the chief justice had both been responsible for the judicial ‘mess’ in Lesotho. The chief justice had ‘graciously’ agreed to retire from his Lesotho post and Ramodibedi should do the same.
The prime minister disputes that he put the issue to Ramodibedi in this way, but this was clearly the crucial meeting at which the matter was first raised between them. Ramodibedi says he immediately pointed out that Thabane’s ‘suggestion’ amounted to unconstitutional interference with the judiciary.
A preliminary skirmish followed with an attempt by Lesotho to get Ramodibedi’s two official cars removed from him out of court term time, and Ramodibedi’s immediate court action to prevent this step.
Shortly afterwards Thabane wrote to Ramodibedi telling him that the king was appointing a tribunal to inquire into his alleged misbehaviour and/or inability to perform his job. He was also invited to make representations as to why the prime minister should not advise the king to suspend him.
Ramodibedi says the charges disclose an abuse of power by the prime minister who ‘feels personally insulted’ by the fact that Ramodibedi refused to step down, and that he (Ramodibedi) should have been given an opportunity to be heard before the decision was made to go ahead with impeachment proceedings.
The prime minister’s letter to the judge lists a number of grounds for impeachment, starting with the dispute over seniority that threatened the ‘integrity and independence of the judiciary’, and includes the overtaking debacle as well as the cancellation of the appeal court’s January 2013 session after a row between the two top judges over who should serve on this court.
Ramodibedi is said to have fraudulently instructed his official driver to put in an insurance claim related to an accident with his government vehicle, saying the chauffeur was behind the wheel at the time, when in fact Ramodibedi’s son was driving. As a result of this claim the insurers paid out over R123 000 for repairs and the government paid the excess of nearly R19 000.
This is followed by other allegations of financial impropriety related to travel allowances he claims despite the fact that he has two official vehicles and a home in Maseru, and to claims he made for his wife to travel with him to the United Kingdom.
Giving further details the prime minister said after the August 2012 term of the appeal court in Maseru two judges each gave back more than R103 000 saying they had been paid for 16 days to write judgments while the task had only taken two days.
Ramodibedi, the only other judge during the August session, had returned no money. The prime minister claims that the three judgments Ramodibedi wrote cannot have taken the 16 days for which he was paid. At most the work would have taken four or five days and that similar complaints about payment of excessive allowances to judges have been made by the law society of Swaziland in relation to Ramodibedi’s position as chief justice there.
Ramodibedi’s decision to litigate against the government of Lesotho is a further ground listed in the charges, as, according to Thabane, the action itself and the language Ramodibedi used about the government of Lesotho shows he’s no longer able to be impartial in cases involving the government or its representatives.
Politically the most interesting, the last group of charges relate to his position as chief justice of Swaziland where his actions, apparently in support of the absolute monarch of that country, have caused an outcry from local and international human rights organisations.
Lesotho is thus aligning itself not only with critics of Ramodibedi but with critics of King Mswati as well.
Because of the significant differences between the two countries on separation of powers and similar crucial questions, Ramodibedi’s position there creates the reasonable perception that he can’t carry out his functions properly in Lesotho, according to the charges. His actions as Swazi chief justice are ‘subversive of the independence of the judiciary’ and of the separation of powers as these principles are appreciated and practised in Lesotho’.
They quote in detail from an official complaint against Ramodibedi by the law society of Swaziland and adopt these complaints for the purpose of the impeachment inquiry.
They include allegations of sexual harassment by four women employed by the high court in Swaziland and financial impropriety related to his position as chief justice including acquiring two official vehicles from the Swazi government.
They also pick up on highly controversial actions by Ramodibedi such as his directive that no civil claims may be brought against the king, his actions leading to the sacking of fellow Swazi judge Thomas Masuku and his intervention in a high profile murder trial being heard by another judge.
The charges also cite the fact that Ramodibedi, who chairs the judicial service commission in Swaziland did not recuse himself in cases directly affecting himself, the fact that an official residence has been built for him in Swaziland and that while he is supposed to be ‘resident in Lesotho’ – which would not require him to claim travel allowances to get to court – he is apparently actually ‘resident in Swaziland’.
The prime minister also refers to the three cows given by Ramodibedi to the king as ‘homage’, saying such an action would be intolerable in Lesotho.
In responding court papers Ramodibedi says the Swazi law society’s allegations were ‘baseless and hearsay’ and were ‘irrelevant’, adding: ‘Whatever I have done in Swaziland is no legitimate concern to Lesotho.’
While the five judges consider their decision on the appeal argued on Tuesday, Ramodibedi’s controversial actions in support for the Swazi monarchy continue unabated: This month he’s again at the centre of a row over human rights and the rule of law after he had a prominent Swazi lawyer and a local newspaper editor jailed, barring them access to their legal advisors, for criticising the king.