Wednesday, January 30, 2019

Renewed criticism that rule of law in Swaziland is ignored as new judges appointed

The Law Society of Swaziland Secretary Thulani Maseko has criticised recent appointments of judges in the kingdom saying there was no transparency in the choices and the Swazi Constitution was ignored.

This was not the first time Swaziland / eSwatini which is ruled by absolute monarch King Mswati III has been criticised for ignoring the rule of law.

Maseko said five recent appointments to the kingdom’s High Court and Industrial Court ‘undermined the integrity, independence and accountability of the judiciary’. He said the appointing process had to be fair, transparent and competitive in line with Section 173 (4) of the constitution which also states appointments should be made on the basis of suitable qualifications, competence and relevant experience.

He said, ‘If these appointments were done in an open, transparent and competitive way, it would be clear that some of the appointees would not [have] passed the standard of integrity required of the judicial office.’

He added the appointments put the judiciary and the entire justice system into disrepute and undermined the rule of law. 

The rule of law is a principle in governance which means that all people – including those in authority – are subject to the law. Under this principle the law is supreme, setting out acceptable limits for behaviour and safeguarding against abuse of power.

The independence of judges in Swaziland has been questioned for many years. In 2015, the International Commission of Jurists (ICJ) in a submission to a United Nations panel that was reviewing human rights in Swaziland called for an overhaul of laws and regulations in the kingdom to take power away from the King.

The ICJ which is composed of 60 eminent judges and lawyers from all regions of the world said,The judges’ appointment process continues to pose a threat to judicial independence and impartiality. The Constitution of Swaziland provides that the judges are appointed by the King after consultation with the Judicial Service Commission (JSC). 

‘The King has the ultimate and final say in respect of the appointments to the bench. 

‘Moreover, the composition of the JSC and the appointment of its members undermine confidence in the independent discharge of its mandate, including the consultative role in the appointment of judges. The JSC is chaired by the Chief Justice, and in addition comprises two legal practitioners, the Chairman of the Civil Service Commission and two other persons. All of these individuals are appointed by the King.’

The ICJ added, ‘In addition, some recent judicial appointments have given rise to concern about the lack of qualification of those appointed. Certain appointments have been publicly questioned by Swaziland’s legal practitioners and by the Law Society.’

The ICJ called for an overhaul of the legal system in Swaziland. ‘The authorities of Swaziland must immediately review the laws and regulations pertaining to the JSC with a view to bringing them in line with regional and international law and standards, including by removing the Crown’s [the King’s] control over the JSC’s composition,’ it said.

In a separate report in 2016 the ICJ said the kingdom’s constitution needed to be changed to bring it in line ‘with regional and universal international law and standards, in particular on the separation of powers and respect for judicial independence’.

It added, ‘Swaziland’s constitution, while providing for judicial independence in principle, does not contain the necessary safeguards to guarantee it. Overall, the legislative and regulatory framework falls short of international law and standards, including African regional standards.’

In 2014 Caroline James of the Southern Africa Litigation Centre (SALC) wrote the judiciary under the then Chief Justice MichaelRamodibedi had ‘become a puppet of King Mswati III, and the courts, which are supposed to hold the other branches of government to account, instead further his interests and protect his actions.

‘In 2011 the Chief Justice issued an official practice directive that no courts could entertain any legal suits filed against the King and his office. This directive shields the King from constitutional challenges brought against him as head of government, as well as actions brought against him in his personal capacity. This allows him to act with impunity, and completely removed any mechanism for accountability.

‘Later that year, one of the few independent thinking judges on the High Court bench, Judge Thomas Masuku, was impeached and removed from his position. Without Masuku the number of judges willing to apply the law impartially has been reduced, and as the Chief Justice himself allocates all cases before the High Court, he is able to ensure that any politically sensitive matters are given to judges he knows will rule in the government’s favour.’

She said the judiciary was being used to punish those who dared to speak out.

‘The offence of contempt of court exists to protect the integrity of the judiciary and prevent interference with justice, and not to prevent legitimate criticism of judges and their conduct. However, the range of conduct covered by the offence appears to have been widened, and is being used in Swaziland to shield judges from criticism. This broad interpretation has removed any certainty individuals may have over what they may or may not say about the judiciary.’

See also

Jurists: deep flaws in legal system

Swazi judicial crisis: King’s word is law

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