OSISA ON SWAZI JUDICIAL CRISIS

Open Society Initiative for Southern Africa (Johannesburg)

Statement

27 October 2011

SOURCE

The following is an extract from the OSISA statement to the 50th Session of the African Commission on Human and Peoples' Rights, October 2011, Banjul, The Gambia

Swaziland

Swaziland is a country with an absolute Monarchy presiding over a regime that has mismanaged state resources and rendered the nation virtually bankrupt and insolvent.

The plight of the citizens of Swaziland was brought to the attention of the Commission during its 49th session. Our statement focused on lack access to justice, erosion of the respect rule of law, abuse of human rights, rampant and endemic corrupt, assault on freedom of press, association, and speech amongst other abuses that are an affront to the African Charter on Human and Peoples' Rights.

As you may be aware, since 1 August 2011, members of the Law Society of Swaziland have been boycotting all the courts in Swaziland. The boycott of the courts seeks to highlight the subversion of the principle of judicial independence and rule of law in the country. The genesis of the boycott lies in a number of actions by the Government, the Judicial Service Commission and the Chief Justice of Swaziland the effect of which is the denial of citizens' constitutional right to approach the courts, and the introduction of institutional bias in the allocation and determination of matters before the Courts.

For instance, Practice Direction 4 of 2011, the country's Chief Justice banned all summons/applications citing the name of the King or the Office of the King, directly or indirectly rendering the Monarch above the law. The Law Society is also aggrieved with the decision of the Judicial Service Commission - of which the Chief Justice is the chairperson - to refuse to accept a petition drawn by the Law Society against the Chief Justice.

As a consequence of the non-functioning of the courts, citizens of Swaziland have been deprived of their constitutional right to judicial redress. Criminal prosecutions which are at the instance of the State have continued albeit accused persons are being denied their constitutional right to legal representation as a consequence of the absence of defence lawyers.

This has given rise to the conviction and imprisonment of unrepresented accused persons, itself a fundamental violation of their human rights. The Government has increased its suppression of citizens' rights, on the strength that people cannot obtain any judicial redress or injunctions against the state for any violations.

Given that an independent and functioning judiciary is essential to the functioning of any State, we consider the absence of a proper functioning judiciary system as a gross violation of the rights of the citizens of Swaziland.

Together with the Law Society of Swaziland, which has lodged a formal complaint to the African Commission on Human and Peoples' Rights against the Kingdom of Swaziland in terms of Article 55 of the African Charter, we request the Commission to urgently undertake a promotional mission to Swaziland, to investigate the factors and issues giving rise to the prevailing judicial crisis.