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

https://swazimedia.blogspot.com/2019/01/renewed-criticism-that-rule-of-law-in.html 

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’

https://swazimedia.blogspot.com/2016/02/no-rule-of-law-with-absolute-king.html

‘King blocks judges’ independence’

https://swazimedia.blogspot.com/2015/09/king-blocks-judges-independence.html

NO RULE OF LAW IN SWAZILAND

The European Union Ambassador to Swaziland Nicola Bellomo has severely criticised the legal system in the kingdom ruled by autocratic monarch King Mswati III. He said even a child could be made a judge.

Bellomo who is soon to leave Swaziland told the Nation Magazine the rule of law did not prevail in Swaziland.

The Nation, an independent magazine of comment in a kingdom where censorship and self-censorship is rife, reported (August 2017), ‘The judiciary in this country has yet to find its footing and earn the respect it once had. It is a mess, right now. But, at least, there’s an acknowledgement that there is still a lot of work to do to get the country's judicial system on the right track. A country that has the kind of judicial system we have, where even a child can become a judge, cannot attract investment.’

The Nation called Bellomo’s comments ‘a scathing attack at the judiciary’.

The magazine reported Bellomo saying, ‘On the rule of law, there are structural problems beyond the political issues. If you have courts with ten judges who can hardly meet the expectations of the country, then you have structural issues. 

‘Then of course you have issues with the judges, like the one who was allowed to sit on the bench and yet did not qualify. That is something shocking for a rule of law country.’

Bellomo is not the first to draw attention to Swaziland’s broken legal system. In February 2016, the International Commission of Jurists (ICJ) reported King Mswati III’s absolute monarchy in Swaziland ‘ultimately is incompatible with a society based on the rule of law’

The report, Justice Locked Out: Swaziland’s Rule of Law Crisis, called on Swaziland’s Constitution to be amended 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.’

An international mission investigated Swaziland following the attempted arrest and the impeachment of former Chief Justice Michael Ramodibedi and the arrest of the Minister of Justice Sibusiso Shongwe, two High Court judges Mpendulo Simelane and Jacobus Annandale and High Court Registrar Fikile Nhlabatsi in April 2015. 

The report stated the judicial crisis was ‘part of a worrying trend of repeated interference by the Executive and of the Judiciary’s inability to defend its independence, exacerbated by apparent strife within the ruling authorities of Swaziland.  

‘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.’

It added, ‘The mission found that some members of the Judiciary have exercised their mandate with a lack of integrity and professionalism. In particular, former Chief Justice Ramodibedi failed to protect and defend the institutional independence of the Judiciary, and played a reprehensible role in undermining both the institutional independence of the Judiciary and that of individual judges in Swaziland. 

‘He also presided over, or was involved in the case allocation of, legal proceedings in which he had a personal interest or in which he acted at the apparent behest of members of the Executive, further undermining the independence and impartiality of the Judiciary.  

‘Based upon its independent research, including its consultations with various stakeholders, the fact-finding mission determined that this latest crisis has served to expose already existing divisions within and between the Judiciary and the Executive.  The consequence has been an abuse of the justice system to settle political scores, further damaging the independence of the Judiciary in the process.  

‘Overall, the events that triggered the international fact-finding mission are both a reflection of a systemic crisis and potentially a contributing factor to its deepening further. In light of its findings, this report includes the fact-finding mission’s recommendations for reform to the Crown, Executive and Legislature, the Judiciary, the legal profession, the international community and civil society, which it considers will strengthen the rule of law, respect for human rights and access to justice and effective remedies in the Kingdom of Swaziland.’

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: FULL CHARGES

http://swazimedia.blogspot.com/2015/04/swazi-judicial-crisis-full-charges.html

‘NO RULE OF LAW WITH ABSOLUTE KING’

King Mswati III’s absolute monarchy in Swaziland ‘ultimately is incompatible with a society based on the rule of law’, a report into the kingdom’s judicial crisis has concluded.

Swaziland’s Constitution must be amended 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,’ the report called Justice Locked Out: Swaziland’s Rule of Law Crisis said.

It was published by the International Commission of Jurists on 18 February 2016.

An international mission investigated Swaziland following the attempted arrest and the impeachment of former Chief Justice Michael Ramodibedi and the arrest of the Minister of Justice Sibusiso Shongwe, two High Court judges Mpendulo Simelane and Jacobus Annandale and High Court Registrar Fikile Nhlabatsi in April 2015. 

The report stated the judicial crisis was ‘part of a worrying trend of repeated interference by the Executive and of the Judiciary’s inability to defend its independence, exacerbated by apparent strife within the ruling authorities of Swaziland.  

‘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.’

It added, ‘The mission found that some members of the Judiciary have exercised their mandate with a lack of integrity and professionalism. In particular, former Chief Justice Ramodibedi failed to protect and defend the institutional independence of the Judiciary, and played a reprehensible role in undermining both the institutional independence of the Judiciary and that of individual judges in Swaziland. 

‘He also presided over, or was involved in the case allocation of, legal proceedings in which he had a personal interest or in which he acted at the apparent behest of members of the Executive, further undermining the independence and impartiality of the Judiciary.  

‘Based upon its independent research, including its consultations with various stakeholders, the fact-finding mission determined that this latest crisis has served to expose already existing divisions within and between the Judiciary and the Executive.  The consequence has been an abuse of the justice system to settle political scores, further damaging the independence of the Judiciary in the process.  

‘Overall, the events that triggered the international fact-finding mission are both a reflection of a systemic crisis and potentially a contributing factor to its deepening further. In light of its findings, this report includes the fact-finding mission’s recommendations for reform to the Crown, Executive and Legislature, the Judiciary, the legal profession, the international community and civil society, which it considers will strengthen the rule of law, respect for human rights and access to justice and effective remedies in the Kingdom of Swaziland.’

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: FULL CHARGES

http://swazimedia.blogspot.com/2015/04/swazi-judicial-crisis-full-charges.html

WHAT CONVICTED JOURNALISTS WROTE

A magazine editor and human rights lawyer in Swaziland face up to ten years in jail after being convicted of contempt of court for criticizing the judiciary and the kingdom’s Chief Justice in articles published in the Nation, a tiny-circulation monthly news magazine.

The conviction of Bheki Makhubu and Thulani Maseko has sparked outrage around the world. In his judgment, High Court Judge Mpendulo Simelane said, ‘the Constitution does not grant an absolute right of freedom of expression’.

Media are heavily censored in Swaziland where King Mswati III rules as sub-Saharan Africa’s last absolute monarch.

The court judgment delivered on Thursday (17 July 2014) contained the specific words in the articles complained of.

These are the words as published that could land two men in jail for ten years.

‘The Accused persons, [Makhubu, Maseko and Independent Publishers, the publisher of the Nation] are charged as follows:-

                      “COUNT ONE

Accused 1, 2 and 3 are guilty of the crime of CONTEMPT OF COURT

In that upon or about the month of February 2014 and at or near Mbabane area in the Hhohho Region, the said accused each or all of them acting jointly in furtherance of a common purpose, did write and publish an article entitled “Speaking my mind” about the case which was first dealt with before the Chief Justice His Lordship Justice Ramodibedi of THE KING VERSUS BHANTSHANA VINCENT GWEBU HIGH COURT CASE NO. 25/2014, a criminal matter currently pending before the High Court of Swaziland and therefore sub judice, which article’s passages are quoted:-

(a)        ‘Like Caiaphus, Ntate Justice Ramodibedi seems to have chosen to use his higher station in life to bully those in a weaker position as a means to consolidate his power.  Like Caiaphus, Ntate Justice Ramodibedi seems to be in a path to create his legacy by pushing the small man so that he can sleep easy at night well knowing that he has sent a message to all who dare cross him that they will be put in their right place.  Let us not forget that Caiaphus was not only the high priest of Judea.  He was the chief justice of all Jewish law and had only the immense power to pass judgment on anyone among his people who transgressed the law.  Ditto Ntate Justice Ramodibedi in Swaziland.’

(b)       ‘When this lowly public servant from Bulunga appeared before him on Monday after a warrant for his arrest had been issued, Gwebu was denied the right to legal representation because, Ntate Justice Ramodibedi is reported to have said, the lawyer was not there when the car was impounded at the weekend.’

(c)        ‘Like Caiaphus, our Chief Justice “massaged” the law to suit his own agenda.’

(d)       ‘What is incredible about the similarities between Caiaphus and Ntate Justice Ramodibedi is that both men had willing servants to help them break the law.’

and did thereby unlawfully and intentionally violate the dignity, repute or authority of the said Court before which the matter is pending, and thereby commit the crime of CONTEMPT OF COURT.

COUNT TWO

 Accused 1, 2, 3 and 4 are guilty of the crime of CONTEMPT OF COURT.

In that upon or about the month of March 2014 and at or near Mbabane area in the Hhohho Region, the said accused each or all of them acting jointly and in furtherance of a common purpose, did write and publish an article entitled “Where the law has no place” about the case which was first dealt with before the Chief Justice His Lordship Justice Ramodibedi of THE KING VERSUS BHANTSHANA VINCENT GWEBU HIGH COURT CASE NO. 25/2014,  a criminal matter currently pending before the High Court of Swaziland and therefore sub judice, which article’s passages are quoted:-

(a)         ‘The arrest of Bhantshana Gwebu early in the year is a demonstration of how corrupt the power system has become in this country.’

(b)         ‘We should be deeply concerned about such conduct displayed by the head of the judiciary in the country.  Such conduct deprives the court of its moral authority; it is a demonstration of moral bankruptcy.  A judiciary that is morally bankrupt cannot dispense justice without fear or favour as the oath of the office dictates.’

(c)         ‘Many will say that what we saw is nothing but a travesty of justice in its highest form.’

(d)         ‘In more ways than one, this was a repeat of the Justice Thomas Masuku kangaroo process where the Chief Justice was prosecutor, witness and judge in his own cause.’

(e)         ‘It would appear as some suggest, that Gwebu had to be “dealt with” for sins he committed in the past, confiscating cars belonging to the powerful, including the Chief Justice himself.  It is such perceptions that make people lose faith in institutions of power, when it appears that such institutions are used to settle personal scores at the expense of justice and fairness.’

and did thereby unlawfully and intentionally violate the dignity, repute or authority of the said Court before which the matter is pending, and thereby commit the crime of CONTEMPT OF COURT.”

In his judgment, Judge Simelane said by writing and publishing the words, ‘The Accused persons scandalized, insulted and brought to disrepute the dignity and authority of the Chief Justice.’

See also

COURT CONVICTS EDITOR AND WRITER

http://swazimedia.blogspot.com/2014/07/court-convicts-editor-and-writer.html

EDITOR AND LAWYER ‘FACE 10 YEARS JAIL’

http://swazimedia.blogspot.com/2014/07/editor-and-lawyer-face-10-years-jail.html

COURT CONVICTS EDITOR AND WRITER

Bheki Makhubu, the editor of the Nation magazine in Swaziland, and writer and human rights lawyer Thulani Maseko were convicted of contempt of court by the kingdom’s High Court on Thursday (17 July 2014).

This followed the writing and publication of articles critical of the Swaziland judiciary and in particular of the Swazi Chief Justice Michael Ramodibedi.

In delivering his verdict, Judge Mpendulo Simelane rejected evidence given during the trial by Thulani Maseko, saying it was irrelevant and a political gimmick. Maseko had delivered a statement in open court in which he criticised King Mswati and outlined ways in which Swaziland could not be considered a democracy. The judge said the statement amounted to a call for regime change in the kingdom.

Judge Simelane also said that constitutionally there was no absolute right to freedom of expression in Swaziland. He said that both accused men incited the public against the courts.

The Nation is a monthly magazine which only prints 3,000 copies a month that circulate in Swaziland, where King Mswati III rules as sub-Saharan Africa’s last absolute monarch.

The judgment was reported live across a number of social media platforms, something unprecedented in Swaziland where mainstream media are heavily censored. Nearly all broadcasting is state controlled and one of only two daily newspaper groups in the kingdom is in effect owned by King Mswati.

Sentence will be imposed after statements of mitigation from Makhubu and Maseko have been heard.

MEDIA IGNORE ATTACK ON SWAZI KING

Media in Swaziland have once again misrepresented events in order to deflect criticism of King Mswati III.

The latest in a long line of cases happened at the Swazi High Court in the case of Thulani Maseko, the human rights lawyer who, along with Bheki Makhubu, the editor of the Nation magazine, are on trial for contempt of court, following the publication of articles critical of the judiciary in Swaziland.

Maseko made a submission in court in which he contended he was innocent of the charges. This was reported in the Swazi Observer and the Times of Swaziland, the only significant newspapers in Swaziland.

But both newspapers, and the broadcast media which with two exceptions are all state controlled, refused to report the main thrust of Maseko’s speech which was a criticism of the political system in Swaziland and King Mswati’s role.

Maseko said that in August 2012 the King convened what is known as ‘Sibaya’. The Swazi Constitution states, ‘The people through Sibaya constitute the highest policy and advisory council (Libandla) of the nation.’  The King is the Chairman of the meeting.

Maseko said the King was ‘at the centre of it all’. He added, ‘This means that he

bears the ultimate responsibility to ensure that the people’s resolutions are executed and implemented.’

However, Maseko said, the ‘overwhelming majority of those who spoke’ at Sibaya called for multi-party democracy in Swaziland. At present King Mswati rules Swaziland as sub-Saharan Africa’s last absolute monarch.

He added, ‘The question that arises is whether this recommendation / resolution were implemented, or even worse, whether there are any plans to implement same? The answer, as far as we are concerned, is in the negative. It is our respectful submission that the failure or refusal to give effect and meaning to the people’s resolution and aspirations to move towards a People’s Democracy, as opposed to the much talked about vague Monarchial Democracy, is contemptuous to the people of this land.’

In 2013, King Mswati claimed to have had a vision in which he was told the right form of government in his kingdom was ‘Monarchial Democracy’, but when he was asked to explain what it was, he said it was the same as the present ‘tinkhundla’ system.

Maseko also criticised King Mswati as being ‘above the law’. He said ‘Pronouncements by the King become Swazi Law when they are made known to the nation, especially at Esibayeni or Royal Cattle Byre. The King is referred to as umlomo longacali manga (“the mouth that never lies”). That is before any pronouncement or/proclamation, the King will have consulted and will have been advised.

‘We respectfully submit that such an arrangement is inconsistent with constitutionalism and the Rule of Law which embody democratic governance. For the King is not subject to judicial review, making him above the law.’

He added, ‘Rule of Law means that it is the law which ultimately rules, not a monarch, not a president or prime minister, clearly not a dictator, not even a benevolent dictator. Under the Rule of Law no one is above or beyond the law. The law is the ruler.’

He added. ‘In so far as the people have called for a democratic process of forming a government under the Rule of Law, they have been treated contemptuously. We surely need leaders who better understand the Rule of Law.

Maseko also criticised King Mswati for appointing Barnabas Dlamini Prime Minister. He said Sibaya had asked ‘King Mswati III and the leadership of this country to give them their right to elect a Prime Minister’.

King Mswati appoints the prime Minister and Government; none are elected by the people.

He added, ‘Is it not contemptuous that while the people called for the removal from office of the Right Honourable Dr. Sibusiso B. Dlamini in the last term, he was instead, re-appointed without their consent?’

He added, ‘I respectfully argue that the failure and refusal by the highest authority of this land [King Mwsati] to remove the Prime Minister and instead, re-appointing him is highly contemptuous of the people’s will and aspirations.’

In Swaziland the monarch only appoints a man from the Dlamini family, which includes the Royal Family, to the position of Prime Minister.

Maseko said, ‘In any case, what is the criteria or basis for appointing a Prime Minister? Is it not Royal Dlaminism supremacy and superiority? We contend that this is the kind of evil domination of a people by another, which moved and inspired men of conscience and goodwill, to rise up and challenge such immoral social orders. Tinkhundla [the present system of government in Swaziland] is our Swaziland version of South Africa’s grand Apartheid and racial segregation and discrimination in the United States. It must be dismantled, it is inhumane.’

Maseko also said that at the Sibaya meeting people asked for ‘Circular No.1 of 2010’to be abandoned. This policy document allowed for substantial payments to government ministers, members of parliament an d civil servants when parliament was dissolved in 2013.

He said, ‘We listened and heard, speaker after speaker, condemn and attack this document as illegitimate in the face of massive poverty and unemployment.

‘The natives of this land saw this, not as intended to eradicate and alleviate poverty, but meant to secure the comfort of self-serving politicians while we the poor, suffer terrible poverty and unemployment.

‘What level of contempt of the masses of the people can we speak of? I insist that I am not guilty, but the leadership of Swaziland, jointly, collectively and severally should be in the dock for contempt of the people.

He said is Sibaya was considered to be the kingdom’s ‘annual general meeting’ then ‘failure to execute and implement such decisions and resolutions invite and warrant a vote of no confidence on the leadership. More than just a vote of no confidence, the non-implementation and intransigent refusal to give effect to the People’s resolution in the light of section 232 [of the Swaziland Constitution] amounts to the suspension and or abrogation of the section.

‘Consequently this is an act of treason.’