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 (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.