The Chief Justice of Swaziland / eSwatini Bheki
Maphalala said the Judicial Service Commission (JSC) was under siege from a
political elite that he called ‘treasonous’.
He said it was so powerful it had taken the
constitutional powers of key institutions of state.
It was undermining and interfering with the constitutional
mandate of the JSC, he said. The judges of the superior courts (Supreme and
High Courts) and the specialist tribunals are
appointed by the King on the advice of the JSC
and magistrates are appointed by the JSC.
Swaziland is not a democracy and is ruled by King
Mswati III as an absolute monarch. The King appoints the Chief Justice and all
members of the JSC. The Chief Justice also chairs the JSC. The Swazi
Constitution of 2005 confirms the King’s position as absolute
monarch.
Maphalala made his statement at the High Court on
Monday (12 August 2019) during the swearing in of new members of the JSC.
The Swazi
Observer, a newspaper in effect owned by the King,
reported Maphalala said, ‘The Judicial Service Commission is under siege from a
strong powerful and dangerous political elite which is currently occupying our
political space.’
The
newspaper reported, ‘Maphalala said the existence of the
political elite constitutes a serious threat to the political and economic
stability of this country together with its international relations and
peaceful coexistence.
‘“The Constitution is the supreme law of this land and
the Nation has the right and duty to uphold and defend this Constitution,” the
Chief Justice said.
‘He warned that any person who suspends, overthrows,
abrogates or attempts to do so is guilty of the offence of treason.’
The Observer reported, ‘Maphalala reminded the
JSC members that their responsibility is to serve the King and the nation with
honesty, dignity and integrity.’
International observers have in the past said that the
JSC cannot be regarded as independent. The International Commission of Jurists
(ICJ) in
a 2018 report on human rights violations in Swaziland
stated, ‘ Although the financial and administrative independence of the
judiciary is guaranteed by section 142 of the Constitution, it is notable that
the King appoints all members of the JSC. There is thus a perception that the
composition of the JSC strongly favours Royalty, compromising its independence
and, by logical extension, compromising the independence of the judiciary.’
The ICJ noted, ‘The rule of law is weak in Swaziland,
and the country has a long history of disregard for the independence of the
Judiciary, and violations of human rights, including the right to a fair
trial.’
The ICJ recommended as a first step the Constitution
be reviewed to guarantee the independence of the JSC by allowing for an open,
transparent and accountable appointment process under section 173(4) of the
Constitution. The Constitution should be amended so that the members of the JSC
cover a wide spectrum of Swazi society, not only royal appointees, it stated.
See also
Renewed
criticism that rule of law in Swaziland is ignored as new judges appointed
https://swazimedia.blogspot.com/2019/01/renewed-criticism-that-rule-of-law-in.html
Jurists: deep flaws in legal system
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
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