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.

OSISA ON SWAZI HUMAN RIGHTS

An extract from a statement made by OSISA – The Open Society Initiative for Southern Africa – to the Ordinary Session African Commission on Human and Peoples’ Rights at Banjul, The Gambia, April 2011.

SOURCE

April 12 is a very significant date in the political life of the people of Swaziland. It was on that date in 1973 that King Sobhuza stripped Swazis of their dignity by unilaterally abolishing the national Constitution and assuming supreme power. Even after promulgation of a new constitution in 2005, Swazis continue to live under the yoke of an absolute monarchy that has severely undermined human rights, separation of powers and the rule of law.

On 12 April 2011, trade unions and pro-democracy movements, sought to peacefully commemorate 38 years since the abrogation of the Constitution, and demand political and economic reforms. They demanded the immediate resignation of the government for corruption and poor governance, repeal of the unjust Suppression of Terrorism Act, unbanning of political parties as vehicles for political mobilisation and respect for freedoms of expression, association and assembly enshrined in the African Charter and sections 24, 25 and 26 of Swaziland’s own constitution. Not surprisingly, requests to hold peaceful protests were refused. Security forces violently suppressed protests, intimidated and arrested those who proceeded with the protests. More than 50 people including students, trade unionists, journalists and ordinary citizens were illegally detained, tortured and subjected to public beatings by security forces. This heavy-handed response to peaceful protests undermines the letter and spirit of the African Charter.

As King Mswati III and his inner circle enjoy the pomp and pageantry of the royal wedding in London, at no less than £450 per room per day - which is more than what most Swazis earn in a year - more than 80% of Swazis continue to eke out a miserable existence in conditions of extreme poverty and deprivation of basic human rights.

We urge the Commission to call upon the Government of Swaziland to: (i) unconditionally and immediately release all the protestors still under illegal custody; (ii) begin a national dialogue to address the long-standing human rights and governance deficits; (iii) stop unlawful searches, harassment and the use of force against trade union leaders and innocent and unarmed civilians by the security forces; and (iv) fulfil all its obligations under the African Charter to protect and promote the rights of its citizens.

We further request the Commission to undertake a promotional mission to Swaziland to investigate the human rights abuses and ascertain the government’s compliance with the findings and recommendations of the August 2006 promotional mission by the Commissioner responsible for the promotion of human rights in Swaziland, who is also the Special Rapporteur on Freedom of Expression in Africa.