SWAZILAND@NEWSLETTER EXTRA
PUBLISHED BY SOUTHERN AFRICA CONTACT (DENMARK)


Letter from KISLON P. SHONGWE
SECRETARY GENERAL – PEOPLE'S UNITED DEMOCRATIC MOVEMENT (PUDEMO)
3rd February, 2006

THE EDITOR
TIMES OF SWAZILAND


WHICH RULE OF LAW?

The Prime Minister, Themba Dlamini, has, on several occasions, told all
and sundry that his government is committed to the respect for the rule of
law. It is, however, extremely difficult to ensure this in a country
whose constitution does not guarantee the necessary separation of powers
of the three arms of government; namely the Legislative, Executive and
Judiciary arms. This is made worse by the executive arm of government,
which has a history, in certain matters, of acting ultra varies the powers
of its office. Such an excess seems to be caused by the undesirable dual
system of government in the country.

In view of the above and the circumstances set out herein under, the
executive arm of his government is seen as having a resolute determination
to disrespect the rule of law, particularly where its observance would
probably operate to the interests of bomb suspects and other people as
deemed related to them. This, however, does serious harm to government’s
credibility and her foreign relationship with other countries.

In order to see, in its true and correct perspective, its relentless
disrespect for the rule of law, which is apparently occasioned by the lack
of the said separation of powers, one has to refer to, among other things,
the judgement of the Minister of Foreign Affairs and Trade which he
delivered in his capacity as such in an official engagement with members
of the Diplomatic Corp, wherein he publicly said that those envoys were
then assured of peace and security following the arrest and detention of
the ‘petrol bombers’. It is absolute, conclusive and admitting no
exception that the executive arm of his government, in this regard,
invaded and assaulted the remaining portion of the independence of the
judiciary and usurped functions appropriate to the judiciary alone in
determining the guilt or otherwise of the suspects. The government did
this while the suspects’ case was sub-judice and as such, she was in
contempt of court. Further still, her conduct in this regard is a serious
violation of even the most elementary and yet critical aspect of the rule
of law that an accused person must be accused in an open court and before
a competent, impartial and independent judicial officer and be given the
right to deny the charge and defend himself. It is further within the
sphere of the rule of law that the accused be deemed innocent until proven
guilty by such court. One wonders who is safe in a country where the
executive arm of government holds kangaroo courts, which tries suspects in
absentia and finds them guilty and notwithstanding such a malpractice,
have the audacity to tell the world that the suspect’s rights are being
recognised and respected by the government.

The fact that the imposed national constitution has stripped even the
highest court of the land of its inherent jurisdiction to hear and
determine matters of and relating to Swazi Law and Custom, which are
inclusive of the notorious evictions of people from Swazi Nation Land,
abductions in the name royalty and appointment and dismissal of chiefs is
not only a travesty of justice in that people not trained in law and
admitted to practise as legal practitioners are going to hold court and
determine such cases, but it also instils fear, intimidation and
insecurity in the mind of the nation. It is further going to militate
against direct foreign investment in the country because no reasonable
investor would stand the risk of having matters relating to his investment
determined by kangaroo courts. I say this particularly because we have
had numerous instances where labour related disputes are taken to the
faceless labadzala at Ludzidzini for determination.

At a time when the economy of the country is on a steep decline and in the
face of considerable retrenchment of workers with the resultant inability,
on their part, to provide for the support and maintenance of their
respective children, it would have been preposterous and such,
unreasonable even to suggest that it is the Swazi nation which, during the
so called constitution making process, overwhelmingly said that they
wanted such a state of affairs to be in place in the country.
Fortunately, the available evidence exonerates the nation in this regard,
because, inter alia, it conclusively establishes that this was done at the
losing stages of the constitutional making process by the so called elders
without knowledge and consent of the nation.

We are conscious of the fact that the independence of the judiciary in the
country is not guaranteed even under the present constitution and in the
premise, such utterances by the executive arm of government regarding the
‘guilt’ of the suspects are confirmatory of this. In the circumstances,
one doubts if they will have a fair trial by the court.


KISLON P. SHONGWE
SECRETARY GENERAL – PUDEMO

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