Bheki Maphalala, the Chief Justice of Swaziland / eSwatini, has accused a group he calls a ‘political elite’ of undermining the kingdom’s judges. He has not named these people but has called them traitors.
His remarks have drawn attention to the small undemocratic southern African kingdom which is ruled by King Mswati III as an absolute monarch. Political parties are banned from taking part in elections. No members of the 30-seat Senate are elected by the people and the King chooses 10 of the 69 members of the House of Assembly. The King also appoints the Chief Justice, top judges and senior civil servants.
Groups that advocate for multi-party democracy have been banned under the Suppression of Terrorism Act.
Human rights campaigners have been drawing attention to the absence of the rule of law in the kingdom for many years. Chief among these is the International Commission of Jurists (ICJ) which has published a number of reports. The ICJ is composed of 60 eminent judges and lawyers from all regions of the world.
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.
In 2015 the ICJ stated the King stood in the way of the kingdom having independent judges. In a submission to the United Nation’s Human Rights Council’s Working Group on the Universal Periodic Review of Swaziland, it called for an overhaul of laws and regulations in Swaziland to take power away from the King.
The ICJ stated, ‘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.’
The ICJ also noted that King Mswati was personally immune from the law. It stated that in 2011, ‘the then Chief Justice Ramodibedi issued a Practice Directive ordering the non-registration of lawsuits that challenge the King “directly or indirectly”, effectively barring access to justice in any case against corporations, companies, trust or any entities in which the King owns shares or has an interest.’
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 2018 the ICJ stated laws in Swaziland had been used by the State as weapons against human rights defenders. ‘There is a growing perception that the law, in particular the law of sedition, defamation, public order and anti-terrorism is systematically used to target human rights defenders (HRDs) and legitimate pro-democracy campaigners.’
It stated, ‘As far back as 1990, the Sedition and Subversive Activities Act 1938 (SSA) and the King’s 1973 Proclamation to the Nation were used against HRDs and legitimate pro-democracy campaigners. Leaders of the pro-democracy banned political opposition, the Peoples’ United Democratic Movement, were charged and tried for high treason for having convened a meeting to discuss the political problems in the country,’ it stated in a report called Achieving Justice for Gross Human Rights Violations in Swaziland - Key Challenges.
It is not only the ICJ that has raised concerns. In January 2019 Law Society of Swaziland Secretary Thulani Maseko criticised then-recent appointments of judges in the kingdom saying there was no transparency in the choices and the Swazi Constitution was ignored.
Maseko said five 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.
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