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Monday, 23 April 2018

CHIEF JUSTICE UNDER FIRE FROM LAWYERS

The Law Society of Swaziland has criticised the kingdom’s Chief Justice for banning two lawyers from practising.

It says he has no legal right to do this.

The row started when CJ Bheki Maphalala banned two lawyers from appearing in courts because they had allegedly not passed on monies due to their clients. He said he could do this under sections 139 (5)| and 142 of the Constitution.

The Law Society of Swaziland disputed this and said it was the body to deal with the matter through its disciplinary tribunal.

Now, the Times of Swaziland reports that the CJ is threatening to close down 70 law firms in the kingdom where King Mswati III rules as sub-Saharan Africa’s last absolute monarch. The newspaper reported on Monday (23 April 2018) he had given firms 21 days to submit audited trust certificates that demonstrate financial worthiness. About 70 firms have failed to do this, the Times reported.

Swaziland has a long history of disputes with the Chief Justice. In February 2016, the International Commission of Jurists (ICJ) reported King Mswati III’s absolute monarchy in Swaziland ‘ultimately is incompatible with a society based on the rule of law.’

The report, Justice Locked Out: Swaziland’s Rule of Law Crisis, called on Swaziland’s Constitution to be amended 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.’

An international mission investigated Swaziland following the attempted arrest and the impeachment of former Chief Justice Michael Ramodibedi and the arrest of the Minister of Justice Sibusiso Shongwe, two High Court judges Mpendulo Simelane and Jacobus Annandale and High Court Registrar Fikile Nhlabatsi in April 2015. 

The report stated the judicial crisis was ‘part of a worrying trend of repeated interference by the Executive and of the Judiciary’s inability to defend its independence, exacerbated by apparent strife within the ruling authorities of Swaziland. 

  
‘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.’

It added, ‘The mission found that some members of the Judiciary have exercised their mandate with a lack of integrity and professionalism. In particular, former Chief Justice Ramodibedi failed to protect and defend the institutional independence of the Judiciary, and played a reprehensible role in undermining both the institutional independence of the Judiciary and that of individual judges in Swaziland. 

‘He also presided over, or was involved in the case allocation of, legal proceedings in which he had a personal interest or in which he acted at the apparent behest of members of the Executive, further undermining the independence and impartiality of the Judiciary.  

‘Based upon its independent research, including its consultations with various stakeholders, the fact-finding mission determined that this latest crisis has served to expose already existing divisions within and between the Judiciary and the Executive.  The consequence has been an abuse of the justice system to settle political scores, further damaging the independence of the Judiciary in the process.  

‘Overall, the events that triggered the international fact-finding mission are both a reflection of a systemic crisis and potentially a contributing factor to its deepening further. In light of its findings, this report includes the fact-finding mission’s recommendations for reform to the Crown, Executive and Legislature, the Judiciary, the legal profession, the international community and civil society, which it considers will strengthen the rule of law, respect for human rights and access to justice and effective remedies in the Kingdom of Swaziland.’

See also

JURISTS: DEEP FLAWS IN LEGAL SYSTEM
SWAZI JUDICIAL CRISIS: KING’S WORD IS LAW
http://swazimedia.blogspot.com/2015/05/judicial-crisis-kings-word-is-law.html

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