Bheki Maphalala, the Chief Justice of Swaziland / eSwatini,
has
accused a group he calls a ‘political elite’ of undermining the kingdom’s
judges. He has not named these people but has called them traitors.
His remarks have drawn attention to the small undemocratic
southern African kingdom which is ruled by King Mswati III as an absolute
monarch. Political parties are banned from taking part in elections. No members
of the 30-seat Senate are elected by the people and the King chooses 10 of the 69
members of the House of Assembly. The King also appoints the Chief Justice, top
judges and senior civil servants.
Groups that advocate for
multi-party democracy have been banned under the Suppression of Terrorism Act.
Human rights campaigners have been drawing attention
to the absence of the rule of law in the kingdom for many years. Chief among
these is the International Commission of Jurists (ICJ) which has published a
number of reports. The ICJ is composed of 60
eminent judges and lawyers from all regions of the world.
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.
In 2015 the ICJ stated
the King stood in the way of the kingdom having independent judges. In a submission to the United
Nation’s Human Rights Council’s Working Group on the Universal Periodic Review of
Swaziland, it called for an overhaul of
laws and regulations in Swaziland to take power away from the King.
The ICJ stated, ‘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.’
The ICJ also noted that King
Mswati was personally immune from the law. It stated that in 2011, ‘the then
Chief Justice Ramodibedi issued a Practice Directive ordering the
non-registration of lawsuits that challenge the King “directly or indirectly”,
effectively barring access to justice in any case against corporations,
companies, trust or any entities in which the King owns shares or has an
interest.’
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 2018 the
ICJ stated laws in Swaziland had been used by the State as
weapons against human rights defenders. ‘There is a growing perception that the
law, in particular the law of sedition, defamation, public order and
anti-terrorism is systematically used to target human rights defenders (HRDs)
and legitimate pro-democracy campaigners.’
It stated, ‘As far back as 1990, the Sedition and Subversive Activities Act 1938 (SSA)
and the King’s 1973 Proclamation to the Nation were used against
HRDs and legitimate pro-democracy campaigners. Leaders of the pro-democracy
banned political opposition, the Peoples’ United Democratic Movement, were
charged and tried for high treason for having convened a meeting to discuss the
political problems in the country,’ it stated in a report called Achieving Justice for Gross Human Rights Violations in Swaziland - Key
Challenges.
It is not only the ICJ that has raised concerns. In January 2019 Law
Society of Swaziland Secretary Thulani Maseko criticised
then-recent appointments of judges in the kingdom saying there was no
transparency in the choices and the Swazi Constitution was ignored.
Maseko said five 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.
Richard Rooney
See also
Swaziland Chief Justice says kingdom under siege by
‘treasonous’ political elites
https://swazimedia.blogspot.com/2019/08/swaziland-chief-justice-says-kingdom.html
Renewed criticism that rule of law in Swaziland is ignored as new judges appointed
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
Swazi law used against human rights
Swazi law used against human rights
https://swazimedia.blogspot.com/2018/05/swazi-law-used-against-human-rights.html
‘No rule of law with absolute King’
‘No rule of law with absolute King’
‘King blocks judges’ independence’
