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International Bar Association

Swaziland

Law, Custom and Politics: Constitutional Crisis and the Breakdown in the Rule of Law


March 2003

Contact: phillip.tahmindjis@int-bar.org

An International Bar Association Human Rights Institute Report

Supported by the Foundation Open Society Institute and Open Society Initiative for Southern Africa

Posted with permission of the International Bar Association (IBA) www.ibanet.org
© International Bar Association
[Complete version - 241Kb ~ 1 min (62 pages)]     [ Share with a friend  ]


Executive Summary

The International Bar Association (IBA) has for some time been increasingly concerned with the deterioration of the rule of law in Swaziland, which has culminated in the resignation of all the judges of the Swaziland Court of Appeal, the resignation of the Director of Public Prosecutions, the High Court of Swaziland declaring that it is no longer prepared to hear applications brought by the Government, charges of contempt of court being brought against the Attorney-General, the Swaziland police refusing to implement court orders, and the Government declaring that it would not abide by court decisions with which it did not agree. A series of national strikes has ensued.

The IBA sent a mission to Swaziland in January 2003, the terms of reference of which were:
  • To ascertain the legal status of the judiciary in Swaziland and its ability to perform its duties impartially and without interference;
  • To identify the domestic, regional and international legal guarantees for the effective functioning of the justice system in Swaziland;
  • To determine whether these guarantees were being respected in practice and the remedies that might be available if the guarantees were not being respected;
  • To make recommendations.
The members of the delegation were led by Dr Phillip Tahmindjis, IBA Programme Lawyer, and consisted of: Professor Shadrack Gutto, Professor of Law at the University of Witwatersrand, South Africa (who also acted as Rapporteur); Ms Raychelle Omamo, President of the Law Society of Kenya; Ms Yaa Yeboah, barrister, United Kingdom; and Mr Neal Gilmore, IBA Legal Specialist in Swaziland. The delegation met all major stakeholders, including: the Prime Minister; the Deputy Prime Minister; the Attorney-General; the Director of Public Prosecutions; justices of the Court of Appeal, High Court and Industrial Court; members of the magistracy; members of Parliament; members of the Law Society of Swaziland; academics and students at the Law School of the University of Swaziland; and members of civil society including trade union representatives, human rights activists, journalists and women’s rights activists.

The mission found that there was a clear lack of separation of powers and respect for the judiciary by the Executive. In particular, the Prime Minister and the Attorney-General routinely interfere with judicial processes and brazenly refuse to enforce court decisions. They have also harassed the Director of Public Prosecutions (DPP) when he has attempted to take action to curb contempt of court. This has led to the resignation of the DPP and of all the judges of the Court of Appeal and a refusal by the High Court to conduct proceedings in civil cases brought by the Government. As a result, there is a serious denial of justice beyond the level of the magistracy. It is imperative that the stalemate between the judiciary and the Executive be resolved as soon as possible.

Some of the cases that have been politicised by the Executive have involved: the abduction of a minor as a bride of the King by the King’s messengers; the illegal eviction of a chief and his peoples from their traditional areas; the draconian law on non-bailable offences; cases dealing with the legality of strike action; and a case involving the age of retirement for judges. In all these cases, the Executive has taken the position that the courts have demonstrated an appetite for undermining ‘Swazi law and customs’. On closer scrutiny, the mission found no merit in such accusations.

The lack of legal clarity about the extent and status of the saved provisions of the 1968 Constitution and the plethora of decrees issued by the King or in the King’s name have created a fertile ground for abuse of constitutional institutions and processes. A prime example is the existence of a shadowy committee officially known as the Special Committee on Justice but popularly called the ‘Thursday Committee’. To some degree, the Chief Justice has been too closely involved with the Thursday Committee. The Committee has usurped the powers and role of the Judicial Service Commission which is supposed to oversee such matters as the appointment and terms and conditions of judges. The Judicial Service Commission itself is moribund and has insufficiently clear legal powers and mandate, as expected under recognised international legal and standards.

Another complicating factor is the lack of clarity in the interaction in the Swazi legal system between customary law, the common law and human rights norms. The mission found the alleged disparity between Swazi customary law and other recognised legal norms often to be more apparent than real and that it is used as a convenient excuse to ignore court decisions.

While Swaziland is not a party to many international human rights treaties, it is a party to the African Charter on Human and Peoples’ Rights, as well as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child. These, together with other international instruments, provide sufficient legal basis for establishing that Swaziland is in breach of recognised international standards of human rights and the rule of law.

There are also systemic issues which should be addressed. These include, in addition to those already mentioned, the funding of the courts, the funding of the Law School, the content and quality of police training, and the criteria upon which people are selected to hold high office in the Government and the civil service, with the resulting question of the fitness for such office of the people so selected.

There is a small presence of international institutions and foreign diplomatic missions in Swaziland. The United Nations agencies are mainly involved in institutional, constitutional and law reforms, children’s rights issues and the combat of the rampant spread of HIV/AIDS. Countries or regional bodies with some political and economic influence in Swaziland include the European Union, South Africa, the United Kingdom and the United States. Most are concerned about the deteriorating relations between the Executive and the judiciary, the absence of pluralism in the political order and the lack of effective management of the economy and the scourge of HIV.

Overall, in Swaziland civil society is not very strong (although there are very active elements in urban areas which are becoming more vocal on constitutional issues). This is partly because of the repressive laws and actions that militate against the freedoms of association and expression. The Law Society is small. Although active at present, it has in the past not played a visible role in defending the independence of the judiciary. The legislature is rather moribund, as free political association is outlawed and approximately one half of the members of Parliament are appointed rather than elected.

It is imperative that a thorough constitutional and legal vision be put in place in Swaziland as soon as possible. The Constitutional Drafting Committee has completed its work and most Swazis are looking forward to the King’s presentation and publication of the draft constitution. Whatever constitution is promulgated, it must clearly provide for the separation of powers, the independence of the judiciary, and an independent Judicial Service Commission with powers to participate in all judicial appointments and the determination of the terms and conditions of service of all judicial officers, including the process of their removal. The new constitution must also address the status of the legislature, judicial review of administrative and legislative action, and the expansion of freedom of association in the civic and political areas. The monarchy could be entrenched but with clear constitutional regulation of its powers and role, in particular with respect to the influence of unelected and unofficial persons and bodies on the decision-making process.

Recommendations

These recommendations are designed to strengthen the rule of law in Swaziland through the effective recognition of the independence of the judiciary, reliance on agreed constitutional processes, a true respect for the balance between custom and common law, and adherence to domestic and international legal obligations.
  1. Adoption of a clear timetable for publication and proper public dialogue on the draft Constitution in the form in which it was presented to the King by the Constitutional Drafting Committee. This should be followed by timely adoption and promulgation of the new Constitution.
  2. There should be a clear constitutional or statutory provision acknowledging and clarifying the relationship between, and the status of, Roman-Dutch common law and customary law in Swaziland. This should be done with an understanding that both sources of law are dynamic and evolving. Ideally, neither ought to be superior to the other.
  3. While the Constitution may secure the position of the monarchy, as it is likely to do, the powers of the King should be clarified in it, with appropriate indication of the role of the High Court in the review of all legislative and administrative actions.
  4. As the absence of clear constitutional guarantees on basic human rights and duties is a major contributory factor to the general curtailment of freedom of association and peaceful assembly in Swaziland, this should be addressed in the new Constitution. In particular, the fundamental rights and freedoms ought to take into account all aspects of economic, social, cultural, civil and political rights, freedoms and duties contained in African regional and international human rights instruments. The rights of women should also be addressed and protected. The Constitution could specifically incorporate the African Charter on Human and Peoples’ Rights, which is already a legal obligation for Swaziland.
  5. Legislation governing the appointment, tenure, conditions of service and removal of judges and magistrates should be revised and consolidated, and the new Constitution must incorporate clear protective guarantees in this regard. In particular, the legislation establishing the Judicial Service Commission must be revised and provide for the independence of the body in matters pertaining to recommendations to the King on judicial appointments, conditions of service for judges and magistrates, and their removal from office.
  6. The separation of executive and judicial authority of the State and Government must be prioritised. This should, amongst other things, include disbanding the Thursday Committee, the independence of the offices of the Attorney-General and the Director of Public Prosecutions being guaranteed, and rescinding the pre-eminence of the Prime Minister’s position in matters relating to the appointment or dismissal of judges and magistrates. The function of the Office of the Attorney-General as principal legal adviser to the State and Government must be separated from its role as principal litigating counsel.
  7. The independence of Parliament and parliamentarians from the hegemony of the Executive should be enhanced along the lines recommended in the Commonwealth’s Latimer House Guidelines.1
  8. A review should be undertaken to determine the criteria upon which suitable people may be considered for official positions in Government and the civil service, so that the King may be properly and consistently advised. Scrutiny of the suitability of all incumbents in such positions should be undertaken.
  9. To encourage a more proactive approach to parliamentary scrutiny of the rule of law, there should be created within Parliament a standing committee on justice to whom the judiciary and the Judicial Service Commission may relate matters affecting the judiciary and the administration of justice, for information and attention.
  10. The courts should be given independent and adequate budgets and the current case backlog should be addressed as a matter of urgency.
  11. There should be an immediate negotiated resolution to the current impasse between the judges of the Court of Appeal and the Executive, facilitated by experienced and respected intermediaries. (The IBA, through its Human Rights Institute and its Judges’ Forum, could assist with this). The Government must, in this process, consider at least the making of: an unreserved apology to the former judges of the Court of Appeal for the Prime Minister’s statement of 28 November, 2002; an unequivocal withdrawal of the contention that it has the option of ignoring court decisions as it chooses; and an undertaking to diligently implement court decisions in the future.
  12. Judges should be (re)appointed to the Court of Appeal immediately. Those judges who resigned should be invited to resume their appointments.
  13. A strategy for effecting greater representation of Swazis at all levels of judiciary should be developed and implemented gradually.
  14. Judgments of the higher courts should be reported expeditiously and regularly as a matter of urgency. Funds should be earmarked for this purpose and appropriately qualified personnel engaged.
  15. To strengthen independent and constructively critical voices in defence of the rule of law and judicial independence, the University of Swaziland Law School should be strengthened and properly funded, particularly with a well-resourced library and information technology facilities. Links between the Law School and the legal profession must be strengthened and there should be a representative of the judiciary on the University of Swaziland Senate.
  16. Members of the Law Society of Swaziland should continue to play, and enhance, their role as protectors of the independence of the legal profession and promote the independence and integrity of the judiciary. Amongst other things, the representatives of the Society in the Judicial Service Commission should reject co-option on illegitimate bodies such as the Thursday Committee. The watchdog responsibility and role of the Society should be enhanced. The capacity-building work that the IBA is currently doing with the Law Society should be made known to all members of the profession, to maximise its effectiveness.
  17. Swaziland should meet its reporting and other obligations under the international and African regional human rights instruments to which it is a party, and, as a UN member, adhere to the principles of United Nations instruments such as the Basic Principles on the Independence of the Judiciary and the Code of Conduct for Law Enforcement Officials. All relevant officials should be educated in these obligations. Swaziland should seriously consider ratification of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Discrimination Against Women.
  18. The international community has a responsibility of solidarity to help Swaziland extricate itself from its present crisis. The UNDP, UNICEF and WHO are already making positive contributions in their respective areas of competence, especially in capacity building and institutional support. In this regard, the UN agencies in Swaziland should be strengthened. Countries with presence in, or influence with, Swaziland such as South Africa, Britain, and the United States should continue to provide assistance and support to the people of Swaziland. Above all, the neighbouring countries of South Africa and Mozambique must assume a robust role in mediating the current stalemate between the Executive and the judiciary.
  19. Civic education programmes should be established in schools and also made available for all Swazis.
  20. A national action plan to develop and implement strategies to achieve these recommendations should be devised. This could include revitalising the Law Reform Commission, establishing the Office of the Ombudsman, and instigating Codes of Proper Conduct for politicians and civil servants.

Footnote:
  1. In J Hatchard and P Slinn (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing Ltd, 1999), Chapter 2.


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