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Composed of 60 eminent judges and lawyers from all regions of the world, the International
Commission of Jurists promotes and protects human rights through the Rule of Law, by using its
unique legal expertise to develop and strengthen national and international justice systems.
Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive
development and effective implementation of international human rights and international
humanitarian law; secure the realization of civil, cultural, economic, political and social rights;
safeguard the separation of powers; and guarantee the independence of the judiciary and legal
profession.
EXECUTIVE SUMMARY
1.1
1.2
1.3
2
2.1
INTRODUCTION
Timeline of key events
Fact-finding Mission
Main findings and report structure
INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY
Regional and universal international law and standards
7
8
8
10
11
2.2
2.3
2.4
3
3.1
12
13
16
18
18
Appointment
Security of tenure
Disciplinary proceedings
Criminal proceedings
3.2
3.3
Judicial appointments
Security of tenure and disciplinary and/or criminal proceedings against
judicial officers
22
23
CASE ALLOCATION
28
30
5.1
5.2
5.3
6
6.1
6.2
30
32
33
34
Conclusions
Recommendations
34
34
37
39
42
EXECUTIVE SUMMARY
This report reflects the outcome of an international fact-finding mission to
Swaziland convened by the International Commission of Jurists (ICJ), in
collaboration with the Africa Judges and Jurists Forum (AJJF), Judges for Judges
Netherlands (J4J) and the Commonwealth Magistrates and Judges Association
(CMJA). The mission was undertaken following the attempted arrest and the
impeachment of former Chief Justice Ramodibedi and the arrest of the Minister of
Justice, two High Court judges and a High Court Registrar. The mission considers
that this latest crisis is part of a worrying trend of repeated interference by the
Executive and of the Judiciarys inability to defend its independence, exacerbated
by apparent strife within the ruling authorities of Swaziland.
Swazilands 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. The findings set out in this report demonstrate how
the de facto lack of independence of the Judiciarys governing bodies and a deficit
of safeguards in the impeachment procedure have contributed to the latest
judicial crisis.
Moreover, 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 missions
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.
INTRODUCTION
Since 1973, when Sobhuza II, the previous King of Swaziland, proclaimed to be
the supreme power in the Kingdom of Swaziland and to hold all legislative,
executive and judicial power, Swaziland has become Africas last remaining
absolute monarchy, and one of the vanishingly few existing globally. King
Sobhuza II proceeded to repeal the 1968 Constitution that had provided for a
constitutional monarchy and a clear separation of powers. Although a new
Constitution containing a bill of rights was adopted in 2005 as supreme law,
constitutional rights have not made effective through necessary implementing
legislation and are often not respected in practice, or are not interpreted and
implemented consistently with regional and international human rights law and
standards.
Under the 2005 Constitution, the King remains the hereditary Head of State.1
Executive authority vests in the King, which he may exercise directly or through
the Cabinet or a Minister.2 Supreme legislative authority3 vests in the King-inParliament, i.e. the King acting with the advice and consent of the Senate and the
House of Assembly.4 While sections 138 and 141 of the Constitution proclaim the
independence of the Judiciary, the constitutional and legislative framework does
not respect the separation of powers nor does it provide the necessary
safeguards for the independence of the Judiciary. In practice, judicial
independence is not respected, as set out below in this report.
Swaziland is governed under a dual legal system, comprising both a RomanDutch based common law system applied in common law or civil courts and a
traditional Swazi law and custom based system applied in Swazi National Courts.5
The superior courts6 consist of the Supreme Court (which is the apex court7 and
is composed of the Chief Justice and no less than four Justices)8 and the High
Court (which is composed of the Chief Justice ex officio and no less than four
Judges). 9 Below the superior courts, there are three levels of Magistrates
Courts,10 and Swaziland also has specialty courts, created by statute and with
limited jurisdiction. 11 The Judiciary in Swaziland comprises 12 judges of the
superior courts and several magistrates in the lower courts.
Recent events in the Kingdom of Swaziland involved the arrest of two judges of
the High Court, a Registrar of the High Court and the Minister of Justice, and an
attempt to arrest the then Chief Justice Michael Ramodibedi on various charges
1
Constitution, S. 4(1).
Constitution, S. 64(1) and (3).
3
Constitution, S. 106(a).
4
These bodies are partially elected and partially appointed by the King, see Constitution, S.9395.
5
Constitution, S. 252.
6
Constitution, S. 139(1)(a).
7
Constitution, S. 146(1).
8
Constitution, S. 145(1).
9
Constitution, S. 150.
10
Magistrates Court Act (amended 2011), S. 16. The jurisdiction of each of these courts is
limited by the amount of the claim. Appeal lies with the High Court, see Part VIII Magistrates
Court Act for civil matters and S. 85-86 for criminal matters, as well as S. 92 regarding the
prerogatives of the Director of Public Prosecution.
11
The Industrial Court has broad jurisdiction over matters touching upon industrial relations and
the employer-employee relationship. Decisions may be appealed to the Industrial Court of
Appeals and the High Court reviews decisions of the Industrial Courts, which are appealable in
that respect to the Supreme Court. See Industrial Relations Act 2000. Furthermore, the 2011
Small Claims Court Act authorizes the Minister of Justice to establish a Small Claims Court with
limited jurisdiction and the 2012 Children Protection and Welfare Act provides for the creation of
a Childrens Court; no such courts are operational at the date of publication of this report.
2
March 2015
17 April 2015
18 April 2015
20 April 2015
12 May 2015
18 May 2015
As at Dec. 2015 The criminal charges against Judge Simelane, the former Chief
Justice and the Minister of Justice have not been disposed of and
there is no official indication of whether the charges will be
pursued. The former Chief Justice has meanwhile left Swaziland.
1.2
Fact-finding Mission
Overall, it is the assessment of the FFM-SZ that the recent events are but the
latest symptoms of a systemic rule of law crisis characterized by a lack of respect
for judicial independence and violations of human rights. The following were
identified as key contributing factors towards this:
a. The Kingdom of Swaziland has a constitutional and legislative framework
that does not respect the separation of powers or provide the necessary
legal and institutional framework and safeguards to ensure the
independence of the Judiciary;
b. The former Chief Justice Ramodibedi failed to protect and defend the
institutional independence of the Judiciary;
c. The Executive has failed to respect the independence of the Judiciary;
and,
10
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.12 The FFM-SZs assessment is that the above
highlighted recent events are but a culmination of a systemic crisis.
Some key, recent highlights serve to illustrate the endemic nature of the crisis. In
July 2014, human rights lawyer Thulani Maseko and journalist Bheki Makhubu
were convicted of contempt of court and given prolonged prison sentences. The
conviction followed a clearly unfair trial, and their subsequent imprisonment
constituted arbitrary detention, as they resulted from the defendants having
exercised their rights to freedom of opinion and expression in an article13 critical
of the Judiciary for lack of independence and impartiality.14 The men have since
been released following a Supreme Court ruling from 30 June 2015 that upheld
their appeal.15 Previously in 2011, the Judicial Service Commission (JSC) removed
former High Court Judge Thomas Masuku from office for allegedly criticizing the
King. The proceedings leading to Judge Thomas Masukus dismissal from the
bench were not transparent, impartial or fair, and due process safeguards were
not respected.16 Again in 2011, there was a four-month long boycott of the courts
by the Law Society of Swaziland, to protest the lack of judicial independence. The
Law Society also filed a complaint with the African Commission accusing former
Chief Justice, Michael Ramodibedi, of systematically undermining judicial
independence.17 The Law Societys complaint remains pending before the African
Commission. Also in 2011, the former Chief Justice issued a Practice Directive
ordering the non-registration of lawsuits that challenge the King directly or
indirectly, effectively removing access to justice in any case against corporations
in which the King owns shares or has an interest. The former Chief Justice is
reported to have also issued another Practice Directive, which abrogated the fair
process in the allocation of cases and allowed the Chief Justice to intervene in the
allocation of sensitive and political cases.
After a brief overview of the main international, including African, law and
standards applicable, this section of the report analyses the constitutional
framework pertaining to the independence and impartiality of the Judiciary in
Swaziland. Considering the Missions finding that a major threat to the
independence of the Judiciary appears to emanate from the Executive and the
former Chief Justice, this part of the report also considers the relationship
between the Executive and the Judiciary, as well as among the judges
themselves.
12
See International Commission of Jurists, Report of the Centre for the Independence of Judges
and Lawyers: Fact- finding Mission to the Kingdom of Swaziland (June 2003); International Bar
Association Human Rights Institute (IBAHRI), Swaziland Law, Custom and Politics:
Constitutional Crisis and the Breakdown in the Rule of Law (2003).
13
This article was reproduced in the Swaziland High Court judgement in which Thulani Maseko
and Bheki Makhubu were convicted. See http://www.swazilii.org/sz/judgment/highcourt/2014/102 (last accessed 9 December 2015).
14
See International Commission of Jurists, The Failure of Justice: Unfair Trial, Arbitrary
Detention and Judicial Impropriety in Swaziland ICJ Trial Observation Report 2015 (July
2015); UN Working Group on Arbitrary Detention, Opinion No. 6/2015 concerning Thulani Rudolf
Maseko, UN Doc. A/HRC/WGAD/2015 (6 May 2015).
15
International Commission of Jurists, Swaziland: release of human rights defenders Thulani
Maseko and Bheki Makhubu a victory for the rule of law (30 June 2015). Available at
http://www.icj.org/32354/ (last accessed 9 December 2015).
16
See International Commission of Jurists, Oral Intervention on the Adoption of the Outcome
Document of the Universal Periodic Review of Swaziland (15 March 2012). Available at
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/06/Swaziland-adoption-UPRadvocacy-2012.pdf (last accessed 9 December 2015).
17
Communication 406/2011, Law Society of Swaziland vs The Kingdom of Swaziland.
2.1
11
18
Basic Principles on the Independence of the Judiciary, Adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26
August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29
November 1985 and 40/146 of 13 December 1985.
19
Among others, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa, Adopted by the African Commission on Human and Peoples Rights, Article A.1;
International Covenant on Civil and Political Rights (ICCPR), Article 14(1); Universal Declaration
of Human Rights, Article 10; Basic Principles on the Independence of the Judiciary, Principle 1
and 2; Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,
Article A.4(a); Universal Strengthening Judicial Integrity, as revised at the Round Table Meeting
of Chief Justices held Charter of the Judge, Approved by the International Association of Judges
on 17 November 1999, Article 1; Bangalore Principles of Judicial Conduct, Adopted by the
Judicial Group on at the Peace Palace, The Hague, 25-26 November 2002, Value 1 and 2.
20
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.5(a); UN Basic Principles on the Independence of the Judiciary, Principle 2. See also UN Basic
Principles on the Independence of the Judiciary, Principles 1-7; Draft Universal Declaration on
the Independence of Justice (also known as the Singhvi Declaration), Articles 2-8; Bangalore
Principles of Judicial Conduct, Value 1; Universal Charter of the Judge, Articles 1-4.
21
See Human Rights Committee, General Comment No. 32, Article 14: Right to equality before
courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.
12
Ibid.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(f), which provides in part nor shall decisions by judicial bodies be subject to revision
except through judicial review, or the mitigation or commutation of sentences by competent
authorities, in accordance with the law; Universal Charter of the Judge, Article 4; Article A.5(e)
states that A judicial officer may not consult a higher judicial authority before rendering a
decision in order to ensure that his or her decision will be upheld.
24
The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.5(d) presents four concrete situations in which the impartiality of a judicial body would be
undermined. Further also: Human Rights Committee, General Comment No. 32, Article 14:
Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007),
para. 21; UN Basic Principles on the Independence of the Judiciary, Principle 2; Draft Universal
Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 25;
Bangalore Principles of Judicial Conduct, Value 2 and 4; Universal Charter of the Judge, Article
5.
25
Bangalore Principles of Judicial Conduct, Value 3 and 4; Universal Charter of the Judge, Article
5-7.
23
13
2.3
The FFM-SZ observes that for the better part of his tenure as Chief Justice, Mr.
Ramodibedis close relations with the Executive led him to head the Judiciary with
a view to defending Executive interests, at the expense of administering
independent and impartial justice for the Kingdoms inhabitants. Various persons
with whom the FFM-SZ spoke concurred that the Crown, Executive and Chief
Justice, enjoyed a warm relationship. During that period, 29 the former Chief
Justice is alleged by many members of civil society and the legal profession to
have colluded with members of the Executive to obtain favourable court
judgements against human rights defenders critical of Swazilands monarchical
rule and its governance and policies. He also stands accused of seeking to oust
independent judges.
Various stakeholders reported to the FFM-SZ, and both the Prime Minister and the
former Chief Justice confirmed, that during the first year of Judge Michael
Ramodibedis tenure as the Chief Justice, the Government won all cases in which
it was being sued, after which it hosted the judges at a function to celebrate.
The FFM-SZ considers this form of celebration to be inappropriate and
unacceptable, as it undermines judicial independence. Moreover, as set out below
26
14
in Part 4 of this report, the Chief Justices improper control over case allocation
appeared, in the FFM-SZs opinion, to have contributed to this outcome.
The FFM-SZ further concluded that the close relationship of the former Chief
Justice with the Executive inevitably entailed his involvement in the factional
politics of the Kingdom, leading to the most recent judicial crisis. Several
stakeholders consulted by the FFM-SZ in this regard suggested that the former
Chief Justice became too close to then Minister of Justice, Sibusiso Shongwe, and
subsequently became involved in a political tussle between the latter and the
Prime Minister.
15
33
Chief Justice Ramodibedi v. the Chairman of the Judicial Service Commission & the Attorney
General (810/2015), Founding affidavit of Michael M. Ramodibedi (2 June 2015), para. 6 among
others.
34
See Attorney General v Titselo Dzadze Ndzimandze (Nee Hlophe) & 27 Others (55/2014)
[2014] SZSC 78 (3 December 2014), Opinion Twum J.A., para. 6.
35
Attorney General v Titselo Dzadze Ndzimandze (Nee Hlophe) & 27 Others (55/2014) [2014]
SZSC 78 (3 December 2014).
16
In view of the above, the FFM-SZ observes that Executive officials have violated
the Constitution and undermined the independence of the Judiciary. However, the
FFM-SZ equally considers that former Chief Justice Ramodibedi bears
responsibility for undermining the independence and the impartiality of the
Judiciary. For instance, the then Chief Justice Ramodibedi himself initiated the
contempt of court charges against journalist Bheki Makhubu and lawyer Thulani
Maseko and he presided over a Judiciary that failed to respect the twos right to
fair trial despite an international and domestic outcry against the manner in which
the two were tried and convicted. His participation in what appears to be power
struggles within the Executive and the Monarchy eventually also gave rise to the
latest judicial crisis.
2.4
From its consultations with various stakeholders, it appears to the FFM-SZ that
there is continuing factionalism, involving members of the Judiciary and the other
branches of power, which has been exposed by the latest crisis.
It is important that each individual judge is able to act independently, constrained
only by considerations of professional responsibility. When a judges conduct and
decisions are based on the perceived dictates of alliance with a particular power
faction, his or her independence and impartiality is necessarily compromised.
This situation of a factionalized Executive and Judiciary culminated most recently
in the abuse of the justice system to settle political scores. Various interviewees
relayed to the FFM-SZ that those aligned or sympathetic to the former Minister of
Justice on various occasions attempted to obtain a warrant of arrest against the
Prime Minister. It was also reported to the FFM-SZ that the arrest warrants in
April 2015 were issued as a consequence of the Prime Minister teaming up with
judges perceived to be aligned to him or opposed to former Chief Justice
Ramodibedi.
17
The FFM-SZ observes that factional divisions within the Judiciary have bred an
atmosphere of mistrust, suspicion and fear amongst individual judges. This
situation is not conducive to the judges proper discharge of their mandate and
makes the Judiciary susceptible to interference with its independence by the
Executive and private forces wielding influence. It also affects the confidence of
the public in the Judiciary and the administration of justice.
36
See Anti-Corruption Act 2006, S. 33: Offences in respect of corrupt activities relating to
judicial officers.
18
37
Human Rights Committee, General Comment No. 32, Article 14: Right to equality before
courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.
38
Principle 10 of the UN Basic Principles on the Independence of the Judiciary provides in part:
In the selection of judges, there shall be no discrimination against a person on the grounds of
race, colour, sex, religion, political or other opinion, national or social origin, property, birth or
status, except that a requirement, that a candidate for judicial office must be a national of the
country concerned, shall not be considered discriminatory. Also, Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on
Human and Peoples Rights, Article A.4(h)-(j); Human Rights Committee, General Comment No.
32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc.
CCPR/C/GC/32 (2007), para. 19.
39
Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report to the
General Assembly, UN Doc. A/HRC/66/289 (2011), para. 22-33, 92; Human Rights Committee,
Concluding Observations on the United Kingdom, UN Doc. CCPR/CO/73/UK (2001), para. 15;
Human Rights Committee, Concluding Observations on France, UN Doc. CCPR/C/FRA/CO/4
(2008), para. 26; Human Rights Committee, Concluding Observations on Sudan, UN Doc.
CCPR/C/79/Add.85 (1997), para. 21; Committee Against Torture, Conclusions and
recommendations on Bahrain, UN Doc. CAT/C/CR/34/BHR (2005), para. 7(h); Committee on the
Elimination of Racial Discrimination, General Recommendation XXXI on the prevention of racial
discrimination in the administration and functioning of the criminal justice system, UN Doc.
A/60/18 (pp. 98-108) (2005), para. 5(d); Committee on the Elimination of Racial
Discrimination, Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (210),
para. 8; Committee on the Elimination of Racial Discrimination, Concluding Observations on
Colombia, UN Doc. CERD/C/304/Add.76 (1999), para. 13.
40
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(i) and (k). UN Basic Principles on the Independence of the Judiciary, Principle 10.
19
41
Human Rights Committee, General Comment No. 32, Article 14: Right to equality before
courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.
42
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(h). UN Basic Principles on the Independence of the Judiciary, Principle 10.
43
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(h) encourages the establishment of an independent body. Also e.g., Concluding
Observations on the Congo, CCPR/C/79/Add.118, para. 14; Concluding Observations on
Liechtenstein, CCPR/CO/81/LIE, para. 12; Concluding Observations on Tajikistan,
CCPR/CO/84/TJK, para. 17; Concluding Observations on Honduras, CCPR/C/HND/CO/1, para.
16; Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), para. 12;
Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc.
CCPR/C/UNK/CO/1 (2006), para. 20; Draft Universal Declaration on the Independence of Justice
(also known as the Singhvi Declaration), Article 11; Universal Charter of the Judge, Article 9.
44
Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to
the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 28-29. See International
Commission of Jurists, International principles on the independence and accountability of
judges, lawyers and prosecutors Practitioners guide, no. 1 (2007), pp. 45-48.
45
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(h); Leandro Despouy, Special Rapporteur on the independence of judges and lawyers,
Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 32; Leandro Despouy,
Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the
Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005),
para. 5(d).
46
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(o); UN Basic Principles on the Independence of the Judiciary, Principle 13; Draft Universal
Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 14.
47
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(l); UN Basic Principles on the Independence of the Judiciary, Principle 12; Draft Universal
Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article
16(b) and 18(c); Universal Charter of the Judge, Article 8.
48
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(r); UN Basic Principles on the Independence of the Judiciary, Principle 17; Draft Universal
Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 28.
20
adequate time and facilities to prepare and present a defence including through
counsel,49 to challenge the evidence against him or her and present witnesses.
Decisions must be based on established standards of judicial conduct, and
sanctions must be proportionate.50 A judicial code of conduct, drafted primarily by
judges and members of the legal profession and consistent with international
standards,51 can help to safeguard judicial integrity and protect against conflicts
of interest.52 Such a code, which should be enshrined in the law, should serve as
the basis for the determination of cases of alleged judicial misconduct within a
fair disciplinary system.53
Decisions to suspend or remove a judge must be limited to cases in which the
incapacity or behaviour of a judge renders the individual unfit to discharge his or
her judicial duties. Decisions and sanctions in disciplinary proceedings should be
subject to independent judicial review (although this may not apply to decisions
of the highest court or the Legislature in impeachment proceedings).54
The body responsible for the discipline of judges should be independent of the
Executive,55 plural and composed mainly (if not solely) of judges and members of
the legal profession.56
Criminal proceedings
Judges, like any other individuals, must remain criminally liable for any offences
they commit. Responsibility of judicial officers for criminal conduct is especially
important where such conduct undermines the credibility and integrity of the
individual as an officer of the court, and/or undermines the reputation of the
Judiciary as a whole and the confidence of the public in the proper administration
of justice by the Judiciary.
In order to safeguard the independence of the Judiciary, however, it is a general
rule reflected in the Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa that judicial officers shall not be liable in civil or
criminal proceedings for improper acts or omissions in the exercise of their
49
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(q).
50
UN Basic Principles on the Independence of the Judiciary, Principle 19; Draft Universal
Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 27.
51
Bangalore Principles of Judicial Conduct; International Bar Association Minimum Standards of
Judicial Independence, para. 35-42.
52
Bangalore Principles of Judicial Conduct, Preamble and Implementation.
53
UN Basic Principles on the Independence of the Judiciary, Principle 19.
54
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(p)-(q); UN Basic Principles on the Independence of the Judiciary, Principle 17-20; Draft
Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration),
Article 26-31; Universal Charter of the Judge, Articles 8 and 11.
55
Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc.
CCPR/C/AZE/CO/3 (2009), para. 12; Human Rights Committee, Concluding Observations on
Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), para. 16; Human Rights Committee, Concluding
Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), para. 20.
56
Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to
the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 28-29.
21
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article
A.4(n)(i). The UN Basic Principles on the Independence of the judiciary provide: Without
prejudice to any disciplinary procedure or to any right of appeal or to compensation from the
State, in accordance with national law, judges should enjoy personal immunity from civil suits
for monetary damages for improper acts or omissions in the exercise of their judicial functions.
(Principle 16).
58
Nremberg Military Tribunal III, United States v. Josef Altstoetter et al., Judgment of 3 and 4
December 1947, Council Law No. 10, 1946-1949, vol. III (1951).
59
African Union Convention on the Prevention and Combating of Corruption, entered into force
on 5 August 2006. Swaziland signed the Convention on 7 December 2004, but has not ratified.
60
Southern African Development Community Protocol against Corruption, adopted on 14 August
2001, entered into force 6 August 2005.
61
Ibid., Article 7(2).
22
Judicial appointments
62
23
The Constitution of Swaziland provides for a process through which judges of the
superior courts can be removed from office for serious misbehaviour or inability
to perform the functions of office arising from infirmity of body or mind.69 It sets
out the procedure that must be followed, pursuant to which an ad hoc committee
composed of the Minister responsible for Justice, the Chairman of the Civil
Service Commission and the President of the Law Society (in the case of the Chief
Justice) or the Chief Justice (in the case of the other Justices) advises the King on
referral of the matter to the JSC for investigation.70 The JSC then shall enquire
into the matter and recommend to the King whether the Chief Justice or the
Justice ought to be removed from office.
67
In 2013, the High Court was seized with an application seeking to set aside a Supreme Court
judgment on the basis that Justice Ebrahim sat in the panel despite having attained the
mandatory age of retirement (Bhokile Shiba v. Mr Justice Ebrahim and others). According to one
interviewee who spoke with the FFM-SZ, the case was frustrated until the applicants ran out of
steam.
68
See the judgement of Judge Simelane in this case, in which the Respondents unsuccessfully
sought to challenge the assignment of the case to Judge Simelane. Available at:
http://www.swazilii.org/files/Judgment%20Michael%20Ramodibedi%20v%20Commissioner%20
General%20SRA.pdf (last accessed 9 December 2015).
69
Constitution, S. 158(2),
70
Constitution, S. 158(3) and (10).
24
As set out above, the independence of the JSC is compromised by the Crowns
control over the appointment of its members. In actual practice, the Commission
has not performed its disciplinary functions impartially and has collaborated in
abusive proceedings, for instance to arbitrarily dismiss a judge deemed too
independent.
See Annex to a letter to the Secretary of the Judicial Service Commission dated 25 July 2011
setting out Justice Masukus grounds of defence.
72
See, among others, International Commission of Jurists, Southern African Development
Community Lawyers Association & Southern African Litigation Centre, Joint Statement:
Swaziland: Failure to expeditiously resolve Judge Masuku matter (22 August 2011), available at
http://www.southernafricalitigationcentre.org/2011/08/22/salc-joint-statement-swazilandfailure-to-expeditiously-resolve-judge-masuku-matter/ (last accessed 9 December 2015); and
Joint Statement: Swaziland shows contempt for rule of law as minister of justice and judge are
dismissed
(30
September
2011),
available
at
http://www.southernafricalitigationcentre.org/2011/09/30/salc-joint-statement-swazilandshows-contempt-for-rule-of-law-as-minister-of-justice-and-judge-are-dismissed/ (last accessed
9 December 2015); International Commission of Jurists, Oral intervention on the adoption of the
outcome document of the Universal Periodic Review of Swaziland (15 March 2012), available at
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/06/Swaziland-adoption-UPRadvocacy-2012.pdf (last accessed 9 December 2015).
25
73
These are the members of the ad hoc committee that advises the King on referral of the
matter to the JSC, which is made up of the Minister responsible for Justice, the Chairman of the
Civil Service Commission and the President of the Law Society (Constitution, S. 158 (10)); and
the members of the JSC, with the Chief Justice being replaced by the most senior Justice of the
Supreme Court (Constitution, S. 158(7)).
74
Re: Minister responsible for Justice, see Constitution S. 67(2)-(3): (2) The King shall appoint
Ministers from both chambers of Parliament upon the recommendation of the Prime Minister. (3)
At least half of the number of Ministers shall be appointed from among the elected members of
the House.; others noted above, para. 2.2 of this report.
75
See Chief Justice Ramodibedi v. the Chairman of the Judicial Service Commission & the
Attorney General (810/2015), Answering affidavit Lloraine Hlophe, para. 26 and 28 and Annex B
containing a copy of the legal notice dated 5 May 2015.
76
Chief Justice Ramodibedi v. the Chairman of the Judicial Service Commission & the Attorney
General (810/2015), Founding affidavit Michael Ramodibedi, para. 14.
77
Michael Ramodibedi v Commissioner General, Swaziland Revenue Authority and Another
(785/13).
26
Available at http://www.swazilii.org/search/node/impunzi.
Wezzy Ndzimandze and 16 others vs Titselo Dzadze Ndzimandze and 13 others (981/2014)
[2014] SZHC234 (23rd September 2014).
80
Letter dated 20 May 2015 from Chief Justice Ramodibedi to Secretary of the JSC and verbal
submissions at JSC hearing on 25 May 2015, as also reflected in the Decision by the JSC, para.
1-2.
79
27
The FFM-SZ further found that on certain occasions81 arrest warrants have been
served against serving members of the Judiciary. Judge Thomas Masuku, Judge
Jacobus Annandale, Judge Mpendulo Simelane and former Chief Justice Michael
Ramodibedi, whose cases are described above, exemplify this practice.
Stakeholders who met with the FFM-SZ also reported that there had been
attempts to obtain warrant of arrests against other judges who are currently
serving in the Swaziland Judiciary. These warrants have been issued
notwithstanding section 141(4) of the Constitution of Swaziland which provides
that a judge of a superior court or any person exercising judicial power, is not
liable to any action or suit for any act or omission by that judge or person in the
exercise of the judicial power.
A distinction should be clear between conduct that: (1) is purely in the exercise of
a judicial power by the judge; and (2) involves civil or criminal liability with
respect to conduct that does not involve the legitimate exercise of a judicial
power. In respect of the first type of conduct, and as set out in the section on
regional and universal international standards including the African Principles and
Guidelines, there is a presumption against civil and criminal liability. There is
nothing, however, to prevent the establishment of liability in the case of other
wrongdoing, particularly where there is serious criminal misconduct and
especially if this undermines the officers integrity or public confidence in the
administration of justice. If a judge is arrested with respect to conduct that has
not been carried out in the exercise of judicial power and function, justice must
be administered with a view to ensuring accountability while respecting judicial
independence.
Section 141(4) of the Constitution appears to be aimed at ensuring that serving
judges enjoy the independence and personal security that they need in exercising
their judicial authority. In its consultations with judges and other stakeholders,
the FFM-SZ determined that the use of arrest warrants against serving judges
had caused significant damage upon the independence, impartiality and personal
security of serving judges, especially in a context where there is undue
interference in judicial functions by the Executive. The perception that these
warrants are used merely as a measure of harassment is buttressed by the fact
that most are eventually withdrawn and do not lead to a criminal trial.
81
Also see AmaBhungane Reporters, Judges arrests on hold as Swazi furore continues (22
May 2014). Available at: http://amabhungane.co.za/article/2014-05-22-judges-arrests-on-holdas-swazi-furore-continues (last accessed 8 December 2015).
28
CASE ALLOCATION
Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to
the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 46.
83
UN Basic Principles on the Independence of the Judiciary, Principle 14.
84
Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct, S.
3.2.
85
Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to
the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 47.
29
judges and the Chief Justices personal involvement in case allocation, this has
served to weaken the Judiciarys independence. The Chief Justices actions, which
clearly contravene standards and best practices designed to protect the principle
of impartiality, have grave implication for the enjoyment of the right to a fair trial
of persons who come before the Swazi Judiciary.
30
5.1
While the Law Society of Swaziland86 still enjoys cordial and professional relations
with certain individual judges, it appears to the FFM-SZ that, overall, the
relationship between the Judiciary and the Law Society of Swaziland is tense and
frosty.
The Law Society accuses the former Chief Justice and the JSC of failing to address
their key concerns, which include the failure by the JSC to consult the Law
Society in the appointment of judges and acting judges and the failure by the JSC
to investigate and deal with reported cases of intimidation of lawyers by certain
judges, including the Chief Justice. Furthermore, members of the Law Society
reported to the FFM-SZ that judges have on occasion advised parties to
proceedings that they would not get a judgement in their favour due to their
representation by lawyers who are viewed as agents of regime change. This
alleged conduct is in direct contravention of the Constitution, in particular section
21(1), as well as regional and international law and standards, 87 which gives
individuals the right to a fair hearing and the right to be represented by a legal
practitioner of their choice. It also undermines the rights of lawyers to freedom
of expression, guaranteed under international law.88
31
32
On the other hand, former Chief Justice Michael Ramodibedi accused the Law
Society of carrying out a local and international campaign against him right
from the time he was appointed as Chief Justice. He expressed the view that the
Law Society of Swaziland had not been objective in its criticism of the Judiciary.
It should be recalled that UN Basic Principles on the Role of Layers requires
governments to ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or improper
interference and (c) shall not suffer, or be threatened with, prosecution or
administrative, economic or other sanctions for any action taken in accordance
with recognized professional duties, standards and ethics.92 In addition, Lawyers
are entitled to freedom of expression, belief, association and assembly. In
particular, they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and
protection of human rights and to join or form local, national or international
organizations and attend their meetings, without suffering professional
restrictions by reason of their lawful action or their membership in a lawful
organization.93
5.2
A further source of contention arose over the issue of Practice Directive number 4
of 2011, which not only led effectively to restrictions on the exercise of the legal
profession, but on the general capacity of people in Swaziland to access justice.
90
UN Working Group on Arbitrary Detention, Opinion No. 6/2015 concerning Thulani Rudolf
Maseko, UN Doc. A/HRC/WGAD/2015 (6 May 2015), para. 26-30.
91
Ibid., para. 31-35.
92
UN Basic Principles on the Role of Lawyers, Principle 16.
93
Ibid., Principle 23.
33
On 16 June 2011, the former Chief Justice issued the directive in his capacity as
the Head of the Judiciary, preventing all Swazi courts from receiving or
entertaining any case that challenges the King directly or indirectly. It aimed at
giving effect to Section 11 of the Constitution of the Kingdom of Swaziland, which
grants his Majesty the King or Ingwenyama (which in the local vernacular
language means Lion) immunity from judicial process. The consequence was
effectively to place the Executive above the law.
This situation led to a judicial crisis during which the Law Society took the
unprecedented move to collectively boycott the courts for over four months and
called for the removal of the former Chief Justice in an official complaint launched
against him with the Judicial Service Commission. No action was undertaken by
the JSC, resulting in the Law Society of Swaziland filing a Communication
406/2011 against Swaziland with the African Commission on Human and Peoples
Rights.
In Communication 406/201194 the Law Society of Swaziland alleges that Practice
Directive 4/2011:
Amounts to an ouster of the courts jurisdiction in all cases involving the
King, his office or his interests;
Removes effective protection of the law in Swaziland where the cause of
action involves the King, his interests or his office being a statutory body;
Violates a wide range of rights, specifically the right to access to justice
and effective remedies inherent in all human rights enjoyed by Swazi
citizens;
Violates the independence and impartiality of the Judiciary;
Violates the principle of equality before the law; and,
Places the Chief Justice in this unusual position of being at the forefront of
the ouster of the jurisdiction of the courts and an assault on judicial
independence.
The case remains pending at the time of publication of this report.
The FFM-SZ considers that these unwarranted interferences brought to bear on
the legal profession have compromised the right to a fair trial and access to
justice. Under these circumstances, lawyers cannot independently perform their
functions, both in court and outside thereof.
5.3
Throughout its consultations, the FFM-SZ found that there is very little public
confidence in the Judiciary. It was also not clear whether or to what extent most
members of the general population considered the Judiciary an accessible and
effective means of delivering justice. Among the FFM-SZs interlocutors, it
appears that the Judiciary is widely viewed as being primarily a tool to protect the
interests of the Crown and (certain members of) the Executive. The Judiciary is
generally considered to be unable to enforce the Constitution and the law,
especially in cases where Executive action is put into question.
The FFM-SZs interlocutors professed a variety of reasons for their lack of
confidence in the Judiciary, analysed also in this report. Main drivers appear to be
the association of the former Chief Justice with (members of) the Executive, the
failure by the JSC to address concerns raised by civil society, the opaque nature
of judicial appointments and perceived corruption of some judges.
94
African Commission on Human and Peoples Rights, Communication 406/11, The Law Society
of Swaziland v. Kingdom of Swaziland.
34
6.1
Conclusions
As an outcome of its first Universal Periodic Review before the United Nations, the
Kingdom of Swaziland pledged to the international community to Take concrete
and immediate measures to guarantee the independence and the impartiality of
the Judiciary.95 This promise remains unfulfilled. On the contrary, as the mission
noted, there have been a number of retrograde developments that require urgent
attention.
The state of the independence of the Judiciary in Swaziland has evolved unevenly
over the years, with recent noticeable and worrying trends and instances of
repeated interference from the Executive as well as the Judiciarys inability to
defend its independence, professionalism and integrity. The framework for the
appointment and disciplining of judges as currently provided in the Constitution
appears inadequate for purposes of instilling confidence in the population that
deserving and or qualified individuals are being appointed. The heavy
involvement of the Crown in the appointment of judges is not consistent with
international law and standards that safeguard the independence of the Judiciary.
There is urgent need for the review of the Judicial Services Act and reform of the
Judicial Services Commission to bring them into line with international, including
regional, law and standards and best practice. A judicial code of conduct, while in
existence, appears to be out-dated and inconsistent with international standards
and principles. A code of conduct that is enforced by an independent and
impartial Judicial Services Commission will bring confidence into the conducting of
disciplinary proceedings against judges as there appear to be several
shortcomings in the current framework, as evidenced in the cases against Judge
Thomas Masuku and former Chief Justice Ramodibedi.
6.2
Recommendations
In light of its findings, and with a view to strengthening the rule of law, respect
for and protection of human rights and access to justice and effective remedies in
the Kingdom of Swaziland, and bearing in mind that an absolute monarchy
ultimately is incompatible with a society based on the rule of law, the FFM-SZ
makes the following recommendations:
To the Crown, the Executive and the Legislature
1.
2.
Ratify or accede to, and implement into national law, regional and
international human rights treaties to which Swaziland is not a party.96
95
Human Rights Council, Report of the Working Group on the Universal Period Review:
Swaziland, Addendum: Views on conclusions and/or recommendations, voluntary commitments
and replies presented by the State under review, UN Doc. A/HRC/19/6/Add.1 (6 March 2012).
96
Swaziland has signed, but not yet ratified, the International Covenant for the Protection of all
Persons from Enforced Disappearances. Swaziland has neither signed nor ratified or acceded to
the following key international treaties: the Optional Protocol to the International Covenant on
Civil and Political Rights (ICCPR); the Second Optional Protocol to the ICCPR, aiming at the
35
3.
4.
To the Judiciary
5.
Repeal any Practice Directives that impede access to justice and/or the fair
administration of justice, in particular Practice Directive 4/2011.
6.
Develop and publish a code of conduct for judges, in line with regional and
universal international standards, including the Bangalore Principles on
Judicial Conduct, with a view to strengthening the integrity of the Judiciary
and improving the accountability of judges.
abolition of the death penalty; the Optional Protocol to the Convention against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment; the Optional Protocol to
the Convention on the Elimination of All Forms of Discrimination against Women; Optional
Protocol III to the Convention on the Rights of the Child; the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families; and the Rome
Statute of the International Criminal Court.
36
7.
8.
9.
Hold regular consultations between the Bench and the Law Society and all
sectors of the Bar strictly on administrative matters of mutual concern,
with a view to ensuring a fairer and more effective administration of
justice and ensuring an appropriate professional relationship between the
Judiciary and the legal profession.
12.
To civil society
13.
37
38
that tried and convicted former president of Liberia Charles Taylor. He was
honoured as an Extraordinary Law Lecturer at the University of Pretoria while
serving as judge of the High Court in recognition of his academic record. He has
in the past been a visiting lecturer at the University of Pretoria and International
Development Institute of Labour Law in Rome. He has written several books and
articles in revered law journals. Judge Dingake is a worldwide winner of Justice
Gender Award granted to him in 2013 and speaker of choice in international
forums on diverse issues related to human rights more particularly on Labour,
HIV and the Law and gender justice
Otto Saki Senior Legal Adviser, ICJ Africa Programme (Rapporteur)
Otto holds a bachelor of laws and masters of law from University of Zimbabwe
and Columbia Law School respectively focusing on human rights, media,
transitional justice and enforcement of international law. Otto has worked in
various capacities in Zimbabwe as a programmes coordinator/deputy director for
the premium human rights organisations, Zimbabwe Lawyers for Human Rights
from 2003 until 2009, before joining USAID Zimbabwe as a senior advisor/
deputy office director for the democracy, rights and governance office from 2009
to 2013. Before joining ICJ in 2015, Otto was the chief of party of the USAID
Rights and Rule of Law Programme in Uganda which partnered with the Judiciary,
civil society and media practitioners on continuous professional development,
human rights reporting and advocacy.
Laurens Hueting Legal Adviser, ICJ Legal & Policy Office (Rapporteur)
Laurens studied law (Bachelor in Law and LLM), with a focus on EU external
relations and human rights, and history (BA and MA), specializing in modern
history, at Maastricht University (the Netherlands), Universiteit Gent (Belgium)
and the Humboldt-Universitt zu Berlin (Germany). Before joining ICJ staff in July
2012, Laurens worked as a legal intern for the ICJ and as an intern in the
European Parliaments Human Rights Unit in Brussels. Within the ICJ's Legal &
Policy Office, Laurens works for the Centre for the Independence of Judges and
Lawyers, and the Sexual Orientation and Gender Identity Programme.
Justice Mavedzenge, Legal Consultant and PhD Candidate University of
Cape Town (Rapporteur)
Justice Mavedzenge is a lawyer and a constitutional law scholar who has
previously collaborated with the ICJ to publish a textbook on Economic, Social
and Cultural rights under the new Constitution of Zimbabwe. He also collaborated
with the ICJ to develop a Practitioners' Guide on the Enforcement of ESC rights in
Zimbabwe. Currently, Justice Mavedzenge is studying towards a PhD in
Constitutional and human rights law at the University of Cape Town. Previously
he has worked as a Senior Program Officer responsible for the implementation of
the Freedom House's Rule of Law project in Southern Africa. He also worked as a
Program Officer at Pact Zimbabwe, where he was responsible for the
implementation of a civil society and human rights strengthening program in
Zimbabwe.
This report was reviewed by Ian Seiderman, ICJ Legal and Policy Director; Arnold
Tsunga, ICJ Africa Programme Director; and Alex Conte, Senior Legal Adviser, ICJ
Legal & Policy Office.
39
Retired Judge Moses Chinhengo (Retired High Court Judge Botswana and
Zimbabwe; ICJ-Commissioner; Interim Chair AJJF and member and Head
of the IFFM-SZ) of Ruwa, Harare, Zimbabwe
40
In July 2014, lawyer Thulani Maseko and journalist Bheki Makhubu were
convicted and given prolonged prison sentences following an unfair trial, for
having exercised their rights to freedom of opinion and expression in an article
critical of the Judiciary. They remain in arbitrary detention today.
In 2011, the Judicial Service Commission removed High Court Judge Thomas
Masuku, one of the countrys few independent judges, from office for allegedly
criticizing the King, following proceedings that were not transparent, impartial or
fair, and in which due process safeguards were not respected. Domestic and
international observers were not allowed to observe the proceedings.
Further in 2011, a four-month boycott of the courts by the Law Society of
Swaziland to protest the lack of judicial independence seriously hampered the
delivery of justice. The Law Society also filed a complaint with the African
Commission accusing Chief Justice Ramodibedi of systematically undermining
judicial independence, subsequent to the Chief Justices dismissal of complaints
by the Law Society against himself. The matter remains pending.
Also in 2011, the Chief Justice ordered a Practice Directive ordering the nonregistration of lawsuits that challenge the King directly or indirectly, effectively
removing access to justice in any cases against corporations in which the King
owns shares or has an interest. A further Practice Directive has abrogated the fair
process in the allocation of cases and allows the Chief Justice to intervene in the
attribution of sensitive and political cases.
For a more general briefing on the country profile of Swaziland, please visit
http://www.icj.org/cijlcountryprofiles/swaziland/.
The terms of reference for the IFFM-SZ shall be as follows:
1. General Timeframe
These are the terms of reference for the IFFM-SZ of the ICJ and collaborating
partners AJJF, J4J, and the CMJA to be carried out in Swaziland commencing on
11 May 2015 and ending 15 May 2015.
2. Activities to be undertaken under these terms of reference
The Fact-Finding Mission will complete the following activities:
41
The Mission will consult as widely as possible with members of the Judiciary and
the legal profession, governmental authorities, civil society and other key
stakeholders.
3. Outputs
The ICJ will produce a report of the IFFM-SZ containing:
The report will be prepared by the IFFM-SZ, in consultation with and subject to
legal and policy review by the ICJ secretariat.
4. Expected Results
The Mission and its report aim to contribute to:
42
Commission Members
November 2015 (for an updated list, please visit www.icj.org/commission)
President:
Prof. Sir Nigel Rodley, United Kingdom
Vice-Presidents:
Prof. Robert Goldman, United States
Justice Michle Rivet, Canada
Executive Committee:
Prof. Carlos Ayala, Venezuela
Justice Azhar Cachalia, South Africa
Prof. Jenny E. Goldschmidt, Netherlands
Ms Imrana Jalal, Fiji
Ms Hina Jilani, Pakistan
Justice Radmila Dicic, Serbia
Other Commission Members:
Professor Kyong-Wahn Ahn, Republic of Korea
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