Re-opening of the courts   Judiciary – Embracing change |11 January 2022

President Ramkalawan interacting with CJ Govinden and other Judges (Photo: Thomas Meriton)

The courts in Seychelles officially re-opened yesterday morning in a ‘soft-opening’ ceremony at the Palais de Justice under the theme ‘Judiciary – Embracing change’.

This was in stark contrast to the traditionally grand ceremony due to the Covid-19 outbreak in the community and ongoing restrictions on gatherings.

The soft opening, which took place in Court Room 1 of the Supreme Court, was attended by President Wavel Ramkalawan; the First Lady, Linda Ramkalawan; Vice-President Ahmed Afif and the Minister for Internal Affairs Errol Fonseka.

The ceremony included a short ceremonial moment in court with the Justices, Judges, Magistrates and a few key Judiciary staff in attendance.

This year is Chief Justice Ronny Govinden’s second year as head of the Judiciary.

Even though the year was marked once again by the challenges that came with the ongoing pandemic, Judiciary was able to serve the people of Seychelles as best as it could.

The speech of CJ Govinden covered the following topics: Reminder of the oaths; The media and the Judiciary; Corruption and drug trafficking; some achievements of the year 2021 and For Peace, Cultivate Justice and The Judiciary, Embracing Change.

Reminder of the oaths

CJ Govinden set the tone of this year’s theme by reminding of the oath they took as they assumed office as Judges.  “I will take this opportunity to remind ourselves of certain constitutional principles that we Judges should hold sacred as a result of taking this oath of office. First and foremost we are here to serve the Republic of Seychelles. This means that we are here to serve and not to be served. We are servant of the Republic and its people. We are not the Masters of the people. Serving your country means doing something that contributes to the wellbeing of the nation and its people. This means we have an obligation to deliver on our duties effectively and in a timely manner. The people of this country have a right to ensure that this happens by holding us accountable.”

CJ Govinden also reminded his colleagues on how they have to do right in accordance with the Constitution of Seychelles and they have an obligation to uphold the Constitution. It protects all and it sets limits to what can and cannot be done in our democratic society.

“Thirdly our oaths oblige us not to show affection or favour. This stems from Article 119 of the Constitution, which provides that the Judiciary shall be independent and be subject only to the Constitution and other laws of Seychelles. As the head of the Judiciary, I have a duty to ensure that this constitutional principle is maintained!” stated CJ Govinden.

The Chief Justice also called on his colleagues to act without fear. “We should have judicial courage. The brave judge applies conscientiously the law of the land as he or she understands it, with the guidance of the constitution, and importantly, without fear. The brave judge has no regard for the decision’s popularity with his or her colleagues or the public at large. Judges must take a stand, even when they know the result will be unpopular. This is courage and a virtue each of us must remain with as we serve the Republic of Seychelles and its people. There are instances where the Judiciary is called to intervene against laws or actions that are not in line with the Constitution. We answer this call to intervene with courage.  The same courage is necessary to uphold all rights envisaged in the Seychellois Charter of Fundamental Human Rights and Freedoms, and in some instances, the reasonable limits of those rights in a democratic society.”

He also noted that the Judiciary should act without ill will. “Our act should not be malicious or capricious. Revenge and taking an eye for an eye is a notion that should never cross our minds, as it is not part of our justice system. As Judges, we are also guided by our Code of Conduct, which each of us hold sacred.”

The media and the Judiciary

CJ Govinden talked lengthily about the media and Judiciary relationship. He spoke on how the Constitution of Seychelles guarantees the freedom of expression as an enforceable human right which extends to the press, the freedom to report and write in print or broadcast matters of public interest.

“This freedom is one of the bedrocks of our constitutional democracy. Journalists have free access to the courts. In order to ensure that this is done in an orderly manner, I issued a Practice Direction last year which allows journalists on our premises to take video and audio recordings, and interview persons involved in cases outside the court rooms.”

Journalists are allowed to use any devices including our phones however if there is to be any recording inside the court during the sessions, this has to be done with the consent of the presiding officer.

CJ Govinden also shared that the media becomes the eyes and ears of those members of the public who could not come to court on that said day.

“Free media become the mouth piece for judicial decisions. Most of the time, people would not read our websites or read our law reports to find out what are our decisions. When the free press publishes our determinations, it helps the Judiciary with public awareness especially around human rights and freedoms. We therefore feel that the media is a very important partner for us.”

However, there are some cases, explained the CJ, where the Judge would order the case be heard behind closed doors.

 Another advice given to the media houses was not to censor the names and images of the people involved in drug trafficking cases and money laundering cases. “This is only an advice. I can assume three reasons the media may have to justify the self-inflicted censorship. The first is defamation. There is an assumption that the publication of the pre-trial news item will expose them to a suit in defamation. However, this cannot be the case. It is not defamation if it is the truth or factual.

The second reason for self-inflicted censorship that comes to mind is the right to privacy. However this cannot be the case because court proceedings are inherently public and not private.

The third and final reason may be attributed to what the laws of Seychelles provide for around judicial proceedings. Our laws prohibit the making of any speech or writing on an ongoing judicial proceeding. The purpose of this is to guard against prejudice against a party to the proceedings. However, this applies to intentional misrepresentation of court proceedings with intent to prejudice a case and we all know that most of these news items are factual and cannot fall within reach of this provision.”

“My personal view is that if the criminal proceedings are public, it is the duty of the media to make it public, and that includes giving the names and showing the uncensored images of the person involved. However, the media must also be accurate in their reporting, presenting things as they are on court records, without giving an opinion on the strengths or merits of the case.  In the same breath they should also relate to the final decision in the case accurately. If the suspect is charged after he is remanded, they should say so; if he is not charged they should also report that he has not been charged. If the very same accused is convicted, the conviction should be reported upon. The same should be done if he or she is acquitted, and the reasons for the acquittal have to be given. All these are necessary in order to be accurate and fair to all parties.”

Corruption and drug trafficking

CJ noted that drug trafficking and related offences and to some extent official corruption related cases are increasingly becoming the main criminal cases before the Supreme Court.

“As an impartial and an independent institution, we are obliged to ensure that those cases are given a fair hearing within a reasonable time. We respect the constitutional rights of the suspects and accused in all those criminal prosecutions. The rights include the right to be presumed innocent until proven guilty. However, if the evidence adduced proves beyond a reasonable doubt that they are guilty, we should convict them without hesitation, to the full extent of the law.”

Some of our achievements this year

• The exterior façade of the Palais de Justice has been renovated and work is still ongoing on other parts of the building.

• Cashier services at the Judiciary have started to accept online payments for settlements of all debts that were formerly only made by cash payments.

• The Magistrates Courts have been equipped with their own state-of-the-art recording system and video link system with the remand centre.
• On June 17, 2021, the Judiciary commemorated Constitution Day by hosting a Roundtable Discussion with several stakeholders on the right to a fair hearing during the Covid-19 Pandemic. The panellists included Judges of the Supreme Court, Justices of Appeal and lawyers. Judiciary intends to commemorate this event in the same manner each year.
• Justice Mathilda Twomey received the distinguished Franco-German human rights award in July 2021 in recognition of her efforts in defending victims of sexual abuse, especially minors. Our congratulations go to Justice Twomey.
• To celebrate World Press Freedom Day the Judiciary held a workshop on Monday May 3, 2021. Judiciary held the workshop in order to train journalists about the judicial process and how to efficiently report on court cases and judgements. The workshop was attended by the four main media houses.

“We unveiled our new Media Practice Directions on the same day. The document acts as a guide as to how the media interacts with the Judiciary, and includes a Glossary of legal terms with their Creole equivalent,” noted CJ Govinden.

• At the end the last judicial year Judiciary hosted a Judicial Officers workshop on stress management and mental health.
• Last year Judiciary admitted four State Counsels from the Attorney General’s Office and four from the private sector as Attorneys following the completion of their pupillage. On the other hand, nine law graduates sat for their Bar Exam in 2021. The examinations were administered from November 29, 2021 to December 10, 2021.

‘For Peace,Cultivate Justice’ and ‘The Judiciary, Embracing Change’

In order to live up to these two themes, the change would be along the following pillars:

Individual and Institutional integrity - The judicial environment must be one which enables the individual judge and the judicial institution to be independent, impartialand accountable. To act without fear or favour does not exist in a vacuum. It is dependent on the personal attributes of a judge and the ability of appointment processes to identify these traits. “However, judicial integrity and legal expertise are not sufficient unless adequate safeguards, whether constitutional or legal, are in place. Administrative efficiency, public confidence, financial resources and suitable facilities and infrastructure determine the ability of the Judiciary to discharge its constitutional mandate. This year we would be working with one of our key partners, the Constitutional Appointment Authority, to see how can we reform in this sector with a view to strengthening judicial integrity.”

Financial Autonomy - How the judiciary is resourced involves a wide range of internal and external processes, including the formulation of the judicial budget, the national budget making processes, how allocated resources are utilised and the extent to which the executive may force a judiciary to reduce or allocate its budget. Moving towards greater judicial financial autonomy involves directly confronting the requirements – and, in many cases, the limitations – of existing government financial management systems. In some instances reform is necessary, in others judiciaries need to learn to work more effectively within the constraints of their government’s budget rules and procedures. The budget needs of the judiciary are also often discussed within a highly politicized context in which there are many other worthy and competing demands for public expenditure.

Continuing Legal Education for Judicial Officers - CJ Govinden pointed out that it has been a long-held tradition that Judges are learned in law and hence there arises no need for further education. However, this has been found to be a myth and we need to embrace change in this area also this year. Under Vision 2025, Legal Education Programmes developed by the Judicial College of Seychelles (JUCOS) will see the adoption of a variety of educational programmes and techniques in order to maximize effectiveness and reach all the stakeholders. These include in-person programmes, self-taught programmes, and interactive programmes supported by adequate technological equipment.

Special attention will also be given to the activation of educational programmes for Judges and court staff intended to promote organizational and technological modernization of courts.

Court Personnel - From an institutional perspective, it is important that the Judiciary of Seychelles devotes attention and resources to these court employees to ensure that the support they provide to Judges is maximized in terms of both quality and quantity. Equally important, care must be taken to ensure that the working relationships on the basis of which such support is provided are strong, positively-oriented, and built on mutual trust and confidence.

In this regard, professional trainings and the development of court personnel is an important component of Vision 2025 and this will be supported this year. Well-trained court personnel create the realization—and the perception among court users—of judicial integrity and transparency of court operations.

Embracing Technology - The Covid-19 pandemic presented several challenges and difficulties in the running of the Courts, but this also presented an opportunity to embrace technology through virtual hearings and the establishment of fully functional e-Courts in future. The Judiciary recognizes that it is imperative to embrace technological changes, and the preparatory work must be done now, including putting together a legislative framework that ushers in the e-Court system. This year will see continuing efforts in this area.

Improved Judicial Information Management - Judicial information management entails also the publication of judgments through law reports and via the Internet. Judiciary needs to embrace changes that technology is bringing about in legal and judicial publications as they play an important role in the functioning of the justice system. It is vital to proper case management and the development of jurisprudence that judicial officers should have ready access to judgments either in physical or electronic form. This year, CJ Govinden reassured that they will continue to invest in judicial information management through the Court’s Library to ensure that the Judiciary is a resource and centre of excellence for domestic, regional and international legal materials.

Transparency, Access, Outreach and Education

“As I have noted previously, the public and the media can attend court proceedings without hindrance. Equally important is providing the public with ready access to court documents, especially judgments and other decisions, as well as court-related administrative information, such as data on the Judiciary’s caseloads and clearance rates, collection of court fees, and the use of budgetary allocations. The Judiciary of Seychelles recognizes, however, that transparency involves more than simply providing access to court proceedings and information.”

To achieve transparency, information must also be disseminated in a format that is easily accessible for the intended audience – especially for journalists and court users who do not have a legal background and may often have limited literacy. Publicizing information about court operations and judicial efforts to increase the efficiency and quality of justice also has beneficial effects on public trust in the Judiciary.

An Accountable Legal Profession - The oversight and discipline of the legal profession falls under the Supreme Court. “The Judiciary is concerned with the increasing number of complaints, and the inadequacy of the legal framework governing legal practitioners. Lawyers have the potential to promote or inhibit access to justice, and the system must be founded on strong ethics, integrity and accountability. In embracing changes in this area, we will prioritise a multi-stakeholder review of the present processes and laws, in consultation with the legal profession and the Office of the Attorney-General so as to bring about reforms in the Legal Practitioner’s Act and the introduction of a Seychelles Bar Council Act.

Intake and exit

“2021 have been successful in replenishing all the vacancies in the Judiciary. Judicial staff increased with the appointment of a Magistrate, two puisne Judges and the Master of the Supreme Court in 2021. Early this year, we are in the process of recruiting a Magistrate for the outstanding post left vacant, following the elevation of the Master from the Magistracy to the Supreme Court.

At the Senior Management level, following the resignation of the Director of Logistics and operation, we had to recruit a new post holder, who joined the team in September 2021.

“In the Legal Research department, there was an appointment of a new Director of Legal Affairs; Senior Legal Researcher and three Legal Researchers.

“However, I have noticed that in certain sections, the rate of staff turnover is relatively high, which leads to experienced staff leaving those departments. We need to put into place strategies that will ensure greater retention of staff in such sections as court interpreters and drivers/messengers,” stated the CJ.

CJ Govinden concluded his remarks with these words: “This year we need to be even more imaginative and adaptable in our common approach to the administration of justice as we adjust to the new and ever changing environment. For this to happen we more than ever need to work in the spirit of unity and collegiality.”

Vidya Gappy

Encadre

Statistics

Court performance is measured by considering two aspects. The first is the overall case disposal, and the second is the percentage that older cases (backlog) form part of the total cases. The goal is to reach a plateau where the backlog is a nominal percentage of the total cases, and the number of completed cases is largely on par with the number of cases filed.

The 2020-21 statistics show that the Courts made progress in reducing some of the backlog. At the same time Covid-19 affected the disposal of cases where the courts had to shut down following public health measures. Similarly, cases filed decreased in 2021 in comparison to previous years.

In 2020, 3403 cases were filed and 3478 completed with a clearance rate of 102%. In 2021, 2768 cases were filed and 2176 cases were completed with a clearance rate of 78.6%.