Wednesday, January 19, 2011

The End of the Robing Room as we know It

It truly is a sad day. The robing room as we know it, has come to an end.... well, not this blog, but the actual real robing room located at the Supreme Court of Seychelles, of which this blog derived its title from.

Lawyers would have come back from the Christmas vacations only to discover that the real robing room has been blocked off and all of the wooden lockers, wigs and gowns have been transferred into a tiny room adjacent to courtroom no. 1. In the transfer process one attorney's wig has gone missing and another one was found after a week missing in action. The real robing room is now a tiny little room that can be best described as a store room. The room is so small that only 3 lawyers can fit in it at any one time to robe up. Gone are the tables and chairs, all that is left are the lockers, a mirror and an air conditioner that appears to be on but doesn't seem to be working.

Around 15 years ago, the robing room had tables, chairs and was even properly air conditioned. It was located next to court room no. 2, with a one-way mirror, allowing those inside the room a peek at those waiting outside courtroom numbers 1 and 2. Over time the air conditioner was removed, a corridor was made to go through the real robing room which shrank the room. But it still had the tables and chairs and was a room which encouraged social interaction between the attorneys. It was a room where lawyers could obtain a second opinion on a legal conundrum or even a ruling or judgment. It was a room where State Counsel could be found giving private tuition to their witnesses (ahem!), where lawyers could sit down and explain legal processes to their clients in a more private setting. It was a room where all the new State Counsel and pupil attorneys could hang out to meet and introduce themselves to all of the other court advocates.

More and more lawyers enter the profession and yet the judiciary decides to shrink instead of enlarge the robing room. There are currently just over 40 attorneys, around 10 State Counsel and about 5 pupil attorneys. The numbers are expected to rise with about 15 Seychellois currently in the advanced stages of their legal education and about 30 currently enrolled through the University of Seychelles in their first year of the LLB programme.

The tagline to this blog will have to be changed. For historical purposes, it is reproduced below: 

"The Supreme Court of Seychelles has a room where most of the lawyers keep their wigs and gowns and where they change into them. It is also where all the latest news and gossip are shared... "

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.

Tuesday, January 11, 2011

Judge Gaswaga sworn in for a second term

Judge Duncan Gaswaga was sworn in for a second term as a Puisne Judge of the Supreme Court of Seychelles yesterday, on the 10th day of January 2011. The Nation has a front page article on the matter which you may read by clicking here.

According to news reports, Judge Gaswaga was sworn in for a second term of only 2 year duration. According to the Constitution, terms can be up to 7 years in duration, however, in practice, the Government appoints Judges on 5 year terms.

According to the news reports, the exceptional circumstances which merits Judge Gaswaga's re-appointment is that he is a "good judge" and that there is a the great number of partly heard cases before him. It goes on to state that these cases would have to be re-started if Judge Gaswaga was not re-appointed. This is a fallacy. According to section 132(3) of the Constitution, a judge may stay on as one in order to complete the cases before him. There was therefore no need to re-appoint Judge Gaswaga if that was the case. News reports also noted that Judge Gaswaga is the head of the criminal division of the Supreme Court, a division that comprises of only 1 or 2 other judges. Furthermore, apparent merit was given to the notion that he contributed greatly to the reform in the Seychelles criminal justice system. Interestingly, no mention is made of the alleged reforms that were made. In the meantime, back on planet Earth, Indian Ocean, Seychelles, it is common knowledge that the criminal justice system is in tatters.

The local courts have never ruled on the meaning of "exceptional circumstances", but if we are to take the meaning given by the press, who would have gathered the same either from the judiciary or the Constitutional Appointments Authority, then, being a "good judge" and having a case in front of you qualifies as "exceptional circumstances". What does "good judge" mean? And surely every single Supreme Court Judge has at least one partly heard case in his calendar. Therefore, every single foreign judge would qualify for re-appointment under this test of "exceptional circumstances".

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.

Friday, January 7, 2011

The Appointment and Re-Appointment of Judges of the Supreme Court

Tensions seems to be bubbling just under the surface as talk is rife that Ugandan national, Judge Duncan Gaswaga, whose 5 year term as a Supreme Court of Seychelles Judge is coming to its end, shall be re-appointed for a second term. The vast majority of lawyers in the country are against such a re-appointment, especially since there are qualified and able Seychellois more than ready to assume positions in the judiciary.

Rumours are circulating that if Judge Duncan Gaswaga were so re-appointed, then the Bar Association of Seychelles ("BAS") will challenge such a re-appointment before the Constitutional Court of Seychelles.

The law is quite clear when it comes to the appointment of Supreme Court Judges, section 126(1) of the Constitution of the Republic of Seychelles states:

"A person is qualified for appointment as a Judge if -

(a) the person has been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and

(b) in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution."

Schedule 2 of the Constitution, entitled "Principles of Interpretation", also defines the word court to mean "a court of competent jurisdiction established by or under the authority of this Constitution." Which means that in order to be a Supreme Court Judge in the first place, you must have been entitled to practice law before a Seychelles court of unlimited original jurisdiction.

5 years ago, in January 2006, when Mr Duncan Gaswaga was appointed as a Supreme Court Judge after serving as a Magistrate and then as a Senior Magistrate (for less than 7 years in total), BAS filed a petition before the Constitutional Court of Seychelles to challenge the appointment on the very simple grounds that Gaswaga did not fulfill either of the two pre-requisites set down in section 126(1) of the Constitution as set out above. BAS later withdrew the petition only because, as heard through the grapevine, it was understood that Judge Gaswaga would not seek for re-appointment and that he would not, at the very least, seek to become a Seychellois national whilst he was a Judge of the Supreme Court.

5 years on, and it appears as though that the understanding is on the verge of being broken, as the word in the dark narrow street is that Judge Gaswaga is up for re-appointment shortly. This despite the law regarding the re-appointments of non-Seychellois in the Judiciary, which states that the re-appointment of a person who is not a citizen of Seychelles can only be done in "exceptional circumstances" (section 131(4) of the Constitution). What these exceptional circumstances are, are beyond the imagination of the Robing Room. Judge Gaswaga has shown himself to be a 'hanging judge', convicting accused persons before him regardless of the evidence put before him. "Guilty until proven Innocent" may be too nice to Judge Gaswaga, the truth is more like "Guilty until your Fair(er) Hearing before the Court of Appeal". His caseload comprises substantially of criminal cases, although he is in fact a judge of the Supreme Court's "Criminal Division", why is it that all of the other Supreme Court judges, even those in the "Criminal Division" are hearing several civil cases? Seychelles' substantive civil law is based on the French Napoleonic civil code and it is not something that one who only has a common law/English law based education is likely to grasp easily. Seychelles attorneys,especially those whose formal legal education is based on the English common law undergo two years of pupillage in Seychelles to grasp not only the Seychelles' French based civil law background, but also the unique mixed law jurisdiction that is the Seychelles legal system. Even then, years of practice is also necessary for one to truly appreciate our unique legal system. Judge Gaswaga's formal education in law is based on the English common law, just like most of the Seychelles lawyers, but unlike the Seychellois lawyers, he never undertook pupillage here, and never practiced here as a lawyer. This may be a key factor why very few civil cases are before his court. And one would think that in appointing a Supreme Court Judge, the authorities should go for someone who at least has good knowledge of and practice in both criminal and civil law matters.

"Exceptional circumstances" also means circumstances extraneous to the Judge. The Constitutional Appointments Authority must look at whether there are others who may be appointed as Supreme Court Judges. And there are a handful of lawyers, with years of experience who are not only more than qualified to take up a post as a Supreme Court Judge, but who are also willing to do so. And it is common knowledge amongst the legal community that the Constitutional Appointments Authority has received applications from these willing lawyers. One then has to wonder what these "exceptional circumstances" are to re-appoint Judge Gaswaga.

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.