April 4, 2003

Report: No law in Swaziland

The draconian powers of the Swaziland monarchy have virtually destroyed the judicial system, according to the International Bar Association (IBA) in a groundbreaking report. The IBA revealed the breach between the rule of law in Swaziland and the monarchy.

The resignation of the director of public prosecutions and all the judges of the Swaziland Court of Appeal, the high court refusal to hear applications brought by the government, the refusal by the Swaziland police to implement court orders and the government decision not to abide by court decisions with which it does not agree are just some of the problems racking the country. "The basic situation in Swaziland is that the legal system is slowly grinding to a halt. The government is not coming to the court with clean hands," said IBA programme lawyer, Dr Phillip Tahmindjis.

The crux of the problems in Swaziland is a lack of clarity about the interaction of the Swaziland legal system, customary law, common law and human rights norms. "The mission found that there is a complete lack of separation of powers and respect for the judiciary by the executive. There seem to be no clear boundaries between the Roman Dutch Common Law and the customary law in Swaziland," said Raychelle Omamo, former president of Kenya's law society. According to the report, the stalemate stems from the adoption of a Westminster-type constitution in 1968 that, "provided all aspects of government, civil liberties and the role of traditional institutions."

In 1973 King Sobhuza II concluded that the Constitution failed to provide the machinery for good governance after an opposition party won 20% of the vote in the 1972 elections. What Sobhuza meant was that dissenting views would not be tolerated. He assumed all legislative, executive and judicial powers and decreed the 1968 Constitution be repealed. In effect there had been a royal coup. Although the 1968 Constitution was repealed by the proclamation, some provisions remained in force with subsequent decrees that either amended or purported to amend the 1973 proclamation. These now constitute the supreme law of Swaziland.

"The [current] problem with the Swaziland constitutional order is that there is an unacceptable uncertainty created by the nature and extent of the saved provisions of the 1968 Constitution, together with the numerous subsequent decrees ... This has contributed to the confusion about the separation of powers," said the report. Probably the most notorious example of the plethora of decrees issued by Mswati under the Constitution is the existence of a shadowy committee called the Special Committee on Justice, but popularly known as the Thursday committee. The committee is made up of people such as the attorney general, the commissioner of police and the prime minister.

Traditionally, Mswati is the head of the state and the government and exercises legislative and judicial powers through Swazi law and custom. He is aided by a group of advisers. However, the division between Swazi law and custom and common law is often difficult to draw because of "the politicisation of the difference between those who claim to speak in the interest of Swazi law and culture and those who speak on behalf of their own interests", said secretary general of the Swaziland Solidarity Network, Bongani Masuku. According to the report, "Their interference with the judiciary is to the extent that they advise some judges on how to decide certain cases of political importance."

The inability of the government to come to grips with these issues is illustrated by the process of the constitutional review, which Mswati commissioned in 1996. He set a delivery date for two years later. However, the process is into its seventh year. The IBA report makes some precise recommendations to rectify the impasse. These include the adoption of a clear timetable for the publication of the draft Constitution that provides for a legitimate relationship between Roman Dutch and common law, the securing of the position of the monarch, with an appropriate indication of the role of the high court, a separation of the executive and judicial arms of the state and government and an opportunity for the retired appeal court judges and the Director of Public Prosecution, Lincoln N'gama, to resume their positions.

Meanwhile, SAPA reported, Chief Justice Stanley Sapire resigned on Thursday, April 3, following what he described as the ongoing defiance of court orders by government officials and after he was informed last week by Mswati that he would be demoted. (Mail & Guardian, Johannesburg)


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