Chief Justice Govinden cleans our constitutional judicature |13 February 2023
A cleaning up exercise of our Constitutional Judicature (Judiciary) has been long overdue as one Chief Justice after another has come and gone allowing the fungus to penetrate deep into the infrastructure of one of the most important pillars of our government and our civilisation.
Who are we to make such a statement? Well, we are Seychelles Civil Society (SCS), an independent and registered NGO, not funded by the Government or any business or any individual. We are fully aware of our fundamental human rights enshrined in our Constitution that gives us the liberty to speak our minds clearly and fearlessly and we do not have to keep looking over our shoulders to see if we are being followed. Thank goodness those days are gone!
In this article, I wish to cover two issues our members have asked me to cover and to bring to the attention of the public via our media outlets and which are also currently topics of conversations at dinner tables, at intervals between meetings and at conferences, and, indeed, on social networks.
The first issue is how do we improve the behaviour of some of our lawyers and legal practitioners? We have in Seychelles some of the best lawyers I have come across, and I have been involved in court cases in UK, US, Japan and Germany. Some of our lawyers and judges rank supreme in the world. I am talking here not only about their legally agile and copious manoeuvres in court, but also the manner in which they treat their clients. Most of our lawyers do not behave like cash registers. In fact, it is my experience that the good ones refuse to accept payment until they have delivered. But, like in any industry or organisation in the world, there are some bad apples that spread their rotting spores into the good apples and presto, the public suffers.
In the Ombudsman’s Annual Report for the year ending December 31, 2020, the incumbent Ombudsman, Nichole Tirant-Ghérardi, herself a seasoned and experienced lawyer, has highlighted a number of serious short-comings in the way some lawyers have behaved and are still behaving. These are the bad apples we are talking about. Our Ombudsman’s 2020 Report states clearly that the Supreme Court has failed to deal adequately with complaints against some attorneys.
In 2020, the Ombudsman Office recorded 15 complaints against the Judiciary, mostly linked to the conduct of lawyers and, in the same year, they received 21 complaints against the Police which included brutality, assault and violation of human rights.
The Report says the principles of transparency, accountability and fairness have not been followed in the judicial process of dealing with complaints against attorneys. It points to the Legal Practitioners (Professional Conduct) Rules 2013 passed under Section 7 of the Legal Practitioners Act (Cap 111), which spells out the conditions, duties and responsibilities of lawyers and attorneys that come with accepting a case from a client, and, once accepted, what level of service the legal practitioner is expected to deliver to and on behalf of the client.
Despite this, some of our members complain that, once they have paid their lawyers, they cannot reach their lawyer, phone calls are not returned, emails are not responded to and, all of a sudden, the lawyer is too busy to see the client. These are the bad apples we are talking about. If the cap fits wear it as the saying goes. When clients take their complaints to the Supreme Court Disciplinary Committee, they do not get a satisfactory conclusion. Furthermore, the Bar Association of Seychelles is a lawyers’ club and has some 40 active attorneys as members. But the Association is more interested in furthering the best interests of its members rather than bother with complainants, naturally.
The ombudsman is the fourth pillar of our jurisdiction since the start of the Third Republic. But for a long time the office went unnoticed and sometimes when government departments were challenged by the Ombudsman, they refused to respond and got away with it. Referring the matter to State House has not helped much since State House has not been the epitome of good governance hitherto. Orders often emanated from State House that has made the judiciary an antithesis of its own shadow.
What we need now is what CJ Govinden alluded to in his SBC TV interview on January 10, 2023 at the official re-opening ceremony of the Supreme Court. We need a Bar Council which must not be a toothless bull dog and all legal practitioners must be a member of the Bar Council. The Bar Council will have the authority to take disciplinary actions against its legal practitioner members.
The Supreme Court has recommended that the AG’s Office work on this. We, in the civil society, urge the AG’s Office to move quickly and prepare the law and structure that will set up this Bar Council as a matter of urgency. This autonomous Bar Council must be out of the politicians’ reach. Its board of directors must be made up of some of our best legal minds who have retired as well as lay people. We propose a board of five directors who will choose their chairman from one of them and rotate the chairmanship every two years. Unlike the TRNUC, this Bar Council of Seychelles (BCOS) must be adequately funded and staffed.
The BCOS must have links to the Council of Bars and Law Societies of Europe (CCBE) where 46 European Bar Councils have links with the CCBE. The CCBE is currently looking to form links with other Bar Councils from around the world because International Law is becoming an important and vital element of today’s legal environment as the world continues to shrink more and more into a global village.
The Bar Council of Seychelles (BCOS) will play a pivotal role in the defence of the rule of law, engage in the fight against bad and unethical practices and human rights abuses by some of our legal practitioners and uphold the democratic values of our small island nation of only 100,000 people.
The BCOS will also promote and defend the core values of our legal profession as a whole in which some of our best judges and lawyers give sterling service and deliver value for money in the area of jurisprudence to the citizens of Seychelles. The BCOS can act as the proof reader for our laws which are sometimes not very well written before the President assents the laws. In conjunction with the University of Seychelles, of which I am one of the Founders along with Rolph Payet, Jean Paul Adam, Martin Kennedy, Audrey Nanon and Bernard Shamlaye, it can be the focus for training our future lawyers and judges.
The second issue our members want to bring to the public’s attention is our fundamental constitutional right to Freedom of Speech and how this is all too often being violated. The one-party state mentality remains instilled in the minds of our journalists who fear to report what goes on in the courts. In fact, journalists were previously not encouraged to sit inside the courts and they waited outside to carry out their interviews. The age-old adage of “sub judice” (which means “under a judge”) has been used to stifle and prevent journalists from reporting court cases openly and frankly. This is Poppycock and Balderdash (rubbish)! A court room is public domain and the judge is in charge and if he/she wants to impose a gagging order he/she can do so on sensitive matters which he/she believes require such protection.
CJ Govinden is right in his interview to call on journalists to interview victims, dig into the judgements, and obtain views from members of civil society but, most of all, put justice first and look for outcomes that will lead to changes in the minds of not only the public but also the judicial system. We, at Seychelles Civil Society (SCS) applaud CJ Govinden for his comments because that’s the way it should be.
The fundamental rights of a Fair Trial of a citizen of Seychelles under Article 19 (7) of our Constitution is to be heard in public by an impartial and unbiased tribunal so there is nothing secretive about what goes on in our courts. Every citizen has the right to be heard in court and to defend him/herself either as a litigant in person or use the services of one or more of our diligent and caring lawyers.
We, at Seychelles Civil Society (SCS) view our Judiciary as a very important pillar of our democracy. Meanwhile, we will continue to challenge the turpitude, the corruption, the licentiousness and improbity of anyone who dares to violate the fundamental human rights bestowed upon us by our
Maker and enshrined in our Constitution, cadet quaestio.
Barry Laine FCIM, FInst SMM, MCMI, MBSCH
Seychelles Civil Society (SCS)
The Wishing Well, Anse Des Genets
Mobile: + 248 2515616