Swaziland’s Judicial Service Commission (JSC) had no power to warn the kingdom’s media against criticising judges.
The constitutional role of the JSC is to oversee judges, not to involve itself in the conduct of the media or members of the public.
The JSC commented on the ongoing case of Bheki Makhubu, the editor of the Nation magazine and Thulani Maseko, a human rights lawyer. Both men have been in jail on remand since 17 March 2014 awaiting trial on contempt of court charges. These arise from articles they wrote in the Nation criticising the Swazi judiciary and in particular the Chief Justice Michael Ramodibedi.
The JSC in a statement to media warned organisations and members of the public that it was wrong for anyone to comment on the pending contempt of court proceedings.
It said the Swaziland Constitution did not allow for freedom of speech in such cases.
The JSC is chaired by the CJ Ramodibedi, who is the man at the centre of the criticisms published by the Nation.
The JSC has overstepped its powers by making the statement. The JSC is set up under the Swaziland Constitution, which states that its functions are to advise the King on the appointment, discipline and removal of the Director of Public Prosecutions and other public officers.
It is also required to review and make recommendations on the terms and conditions of service of Judges and persons holding the judicial offices.
The JSC also functions as a complaints bureau and receives and process recommendations and complaints concerning the judiciary.
It has other functions, including advising the government on improving the administration of justice generally and appointing people to legal positions.
Nowhere in the constitution does it say it has a role to make public statements about judicial matters.
Nobody who observes Swaziland will be surprised that the JSC has over-reached its powers. It was created by King Mswati III, who rules Swaziland as sub-Saharan Africa’s last absolute monarch. The chair of the JSC is the Chief Justice, who is appointed by the King. There are five other members of the commission: four are directly appointed by the King, and the other has to be Chairman of the Civil Service Commission, himself chosen by the King.
The judiciary in Swaziland is not independent since all judicial officers are appointed by the King and they owe their allegiance to him. Meanwhile, the Swaziland Constitution puts the King and the Queen Mother beyond the reach of the law.
As Freedom House, in an analysis of Swaziland, noted, ‘The King’s absolute authority over the judiciary renders the Swazi legal system hazardous for investors, attorneys and anyone who displeases the King.’
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