Friday, July 22, 2011


Southern Africa Report

21 July 2011


Swaziland: The Lawyers are Restless

King Mswati III's clumsy attempts to halt tentative moves by Swaziland's judiciary to question his constitutionally entrenched status as being above the law have backfired.

For four days from 11 July 2011 nearly 80 lawyers boycotted the country's courts over the suspension in late June of Supreme Court Judge Thomas Masuku by the Chief Justice of Swaziland Michael Ramodibedi for alleged malpractice.

Most of the charges against Masuku have yet to be made public but appear to centre on allegations that he insulted the king. Tellingly, they include an allegation that Masuku supports "regime change" in Swaziland.

The Swazi judiciary maintains a semi-independent status, but traditionally treads extremely carefully around legal questioning of royal prerogative, enshrined in the 2005 constitution, to operate above the law.

The move against Masuku follows a series of recent cases which have sought to challenge this prerogative and may mark the start of a broader reshuffle on the Swazi bench. Shortly before suspending Masuku, the chief justice directed that the High Court would refuse all summons or applications for claims against the king. The directive was sharply criticised by the Africa Programme of the International Commission of Jurists as "a fundamental attack on a citizen's right to be protected by the law and the right to be heard by an independent judiciary".

Masuku's suspension is linked to a recent judgment that, on the face of it, appeared sympathetic to Mswati. The case concerned alleged cattle rustling by police who claimed to be acting in the king's name. As part of his judgment, Masuku found it was "hard to imagine that his majesty could conceivably speak with a forked tongue" - saying one thing and ordering his officers to do another. Mswati appears to have read underlying irony in the finding.

The Chief Justice has replaced Masuku as a justice of the Supreme Court with Judge Bheki Maphalala. In March Maphalala presided over an application to challenge forced removals in Kashali, a village near Manzini. The case followed the demolition of 18 homes on orders from the king's emissary and threats to do the same to 271 others, evidently because the king wanted to use the land to garner more income for the royal household (see SAR Vol 29 No11 and SAR Vol 29 No 12).

Maphalala's ruling managed both to fault the king's emissary for destroying the homes, and to avoid making any finding on the application for compensation. Instead, he ruled that Kashali's residents should seek an audience with the king to plead their case - and donate two head of cattle for the privilege. But the bulk of Maphalala's ruling on the Kashali case was devoted to an attack on the king's estranged brother, Prince Matatazela, who presides as chief over land affairs in Kashali.

Matatazela is on Mswati III's blacklist for championing a constitutional monarchy for Swaziland.

Despite its failure, the Kashali case was seen as a landmark case in seeking to challenge the power of the king to act arbitrarily in his constitutionally enshrines trusteeship over Swaziland.

Education summit backs democracy movement:

The Swaziland Union of Students formally threw its weight behind Swaziland's pro-democracy movement at an education summit last weekend (16-17 July 2011), further broadening the base of organised opposition to King Mswati's monarchy.

The meeting, also attended by representatives of the influential Swaziland National Association of Teachers (Snat) and the Swaziland Council of Churches, called for the legalisation of political parties and an end to the Tinkhundla electoral system. The system, reintroduced by Mswati in 1989 to head off growing opposition to absolute monarchy, involves the election of 55 individuals (the king has effective veto rights over candidature) to a lower house without legislative power. The gathering said it had led to a collapse of the rule of law, plundering of state coffers and the current economic crisis.

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