The Law Society of Swaziland Secretary Thulani Maseko has criticised recent appointments
of judges in the kingdom saying there was no transparency in the choices and
the Swazi Constitution
was ignored.
This was not the first time Swaziland / eSwatini which
is ruled by absolute monarch King Mswati III has been criticised for ignoring
the rule of law.
Maseko said five recent
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.
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.
The independence of judges
in Swaziland has been questioned for many years. In 2015, the International Commission
of Jurists (ICJ) in a submission to a United
Nations panel that was reviewing human rights in Swaziland called
for an overhaul of laws and
regulations in the kingdom to take power away from the King.
The ICJ which is
composed of 60 eminent judges and lawyers from all regions of the world said,
‘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.
‘Moreover, the
composition of the JSC and the appointment of its members undermine confidence
in the independent discharge of its mandate, including the consultative role in
the appointment of judges. The JSC is chaired by the Chief Justice, and in
addition comprises two legal practitioners, the Chairman of the Civil Service
Commission and two other persons. All of these individuals are appointed by the
King.’
The ICJ added, ‘In
addition, some recent judicial appointments have given rise to concern about
the lack of qualification of those appointed. Certain appointments have been
publicly questioned by Swaziland’s legal practitioners and by the Law Society.’
The ICJ called for an
overhaul of the legal system in Swaziland. ‘The authorities of Swaziland must
immediately review the laws and regulations pertaining to the JSC with a view
to bringing them in line with regional and international law and standards,
including by removing the Crown’s [the King’s] control over the JSC’s
composition,’ it said.
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 2014 Caroline James of
the Southern Africa Litigation
Centre (SALC) wrote the judiciary under the then Chief Justice MichaelRamodibedi had ‘become a puppet of King Mswati III, and the courts, which are
supposed to hold the other branches of government to account, instead further
his interests and protect his actions.
‘In 2011 the Chief Justice
issued an official practice directive that no courts could entertain any legal
suits filed against the King and his office. This directive shields the King
from constitutional challenges brought against him as head of government, as
well as actions brought against him in his personal capacity. This allows him
to act with impunity, and completely removed any mechanism for accountability.
‘Later that year, one of
the few independent thinking judges on the High Court bench, Judge Thomas
Masuku, was impeached and removed from his position. Without Masuku the number
of judges willing to apply the law impartially has been reduced, and as the
Chief Justice himself allocates all cases before the High Court, he is able to
ensure that any politically sensitive matters are given to judges he knows will
rule in the government’s favour.’
She said the judiciary was
being used to punish those who dared to speak out.
‘The offence of contempt of
court exists to protect the integrity of the judiciary and prevent interference
with justice, and not to prevent legitimate criticism of judges and their
conduct. However, the range of conduct covered by the offence appears to have
been widened, and is being used in Swaziland to shield judges from criticism.
This broad interpretation has removed any certainty individuals may have over
what they may or may not say about the judiciary.’
See also
Jurists: deep flaws in legal system
http://swazimedia.blogspot.com/2015/05/jurists-deep-flaws-in-justice-system.html
Swazi judicial crisis: King’s word is law
http://swazimedia.blogspot.com/2015/05/judicial-crisis-kings-word-is-law.html
Swazi judicial crisis: King’s word is law
No comments:
Post a Comment