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Wednesday, 16 May 2012

ALL-BLACK ‘PERMANENT’ SUPREME COURT


Swazi Bill of Rights Blog

14 May 2012


AN ALL-BLACK ‘PERMANENT’ SUPREME COURT

Chief Justice Ramodibedi has noted that the "permanent" bench of the highest court in Swaziland is all-black for the first time in its history (see article HERE).  This is truly an historic moment.

In using the word "permanent", it is supposed he was comparing this bench with the "rotational" justices provided mostly by the Commonwealth who fly into the country on short contracts to deal with case backlogs. But it  happened to remind everyone that there is little security of tenure for judges in Swaziland.  "Security of tenure" is the term used to describe the protections a judge has from being fired out of political motivations.  So, for example, judges with security of tenure would be more likely to act without fear or favour in a case involving a pension fund with large landholdings and deep ties to the ruling elite.

Sections 155, 156 and 158 of the 2005 Constitution seemingly guarantee that once a judge is appointed as a "substantive" office holder, s/he will hold that position until the age of 75 years, or until s/he retires, or until s/he is removed from office for "serious misbehaviour" or "inability to perform the functions of office arising from infirmity of body or mind."  The reality is somewhat different.  As far as I can tell, all the judges of the superior courts are on fixed contracts for a specified term.  Worse, the majority are officially only "acting" judges, whose terms are for less than six months.

This is a far cry from the sort of "permanence" laid out in the 2005 Constitution.  Without security of tenure, the judiciary in Swaziland is unlikely to be as independent as it should be.

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