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Showing posts with label judicial. Show all posts
Showing posts with label judicial. Show all posts

Wednesday, 14 August 2019

Spotlight on absence of rule of law in Swaziland

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
‘King blocks judges’ independence’

Tuesday, 13 August 2019

Swaziland Chief Justice says kingdom under siege by ‘treasonous’ political elites

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
http://swazimedia.blogspot.com/2015/05/judicial-crisis-kings-word-is-law.html