SWAZILAND@NEWSLETTER - Archive: International Commission of Jurists.
Fact-finding mission to Swaziland, 2003.

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International Commission of Jurists. Fact-finding mission to Swaziland,
2003

EXECUTIVE SUMMARY

From 12–21 January 2003, the International Commission of Jurists' Centre
for the Independence for Judges and Lawyers (ICJ/CIJL), sent a
fact-finding mission to the Kingdom of Swaziland. The purpose of the
mission was to assess various threats against judicial independence, the
rule of law and the administration of justice resulting from an Executive
decision to disregard two Appellate Court rulings, an action that directly
led to the resignation of the nation's entire Court of Appeal.

In 1973, the former Monarch of Swaziland repealed the 1968 Independence
Constitution in favour of a form of Government that eliminated political
parties, restricted trade union activities and stifled civil and political
dissent. In the absence of constitutionally entrenched protections, the
present Executive gradually eroded the rule of law, restricted press
freedoms and undertook unilateral actions detrimental to the survival of
the nation.

The legal system in Swaziland is based on a dual system of law whereby
local Swazi law and custom, as applied in National Courts, is subordinate
to Roman-Dutch law, as applied in Westminster-organised Courts.
Historically, this dual legal system performed relatively well, however,
the ICJ/CIJL delegation was provided with concrete evidence affirming that
the present rule of law crisis is rooted in a past whereby the Executive
routinely threatened judicial independence where it conflicted with
entrenched interests. Periodic attacks on judicial independence in
Swaziland have given way to Executive attitudes holding the judiciary,
rule of law and the separation of powers in virtual contempt. The most
recent example of negative State actions against judicial independence
occurred in October and November 2002. At that time, the Attorney General
threatened three High Court Justices with immediate dismissal if they did
not recuse themselves from a case that involved the abduction of a girl
that eventually became the 10th wife of His Majesty. The Director of
Public Prosecutions filed criminal charges against the Attorney General
for threatening the High Court Justices, however, the State compelled him
to withdraw the charges.

The rule of law crisis presently besetting the Kingdom of Swaziland
originated from a 28 November 2002 statement by the palace-appointed Prime
Minister wherein the nation was advised that the Government would not
recognise two Court of Appeal judgments. These judicial rulings followed
existing statutory law in concluding that:

(a) His Majesty could not override Parliament with Royal Decrees until a
new Constitution had been enacted; and (b) the Commissioner of the Royal
Swaziland Police was in contempt of Court for refusing to execute judicial
orders.
On 30 November 2002, the six Justices of Swaziland's Court of Appeal
resigned in protest over the Government's public refusal to recognise this
Court's rulings. In solidarity, trade union and civil society
organisations appealed to the Government to follow the rule of law and
engaged in strike action. The international community added its voice to
this protest by advising the Swazi Government that its actions threatened
preferential trade arrangements, the loss of which would wreak
socio-economic havoc throughout the nation. In the face of domestic and
international appeals, the Government continued its open attack on
judicial independence, the separation of powers and the rule of law.
Further tarnishing the image of the Kingdom, the Chief Justice was forced
to resign while other judicial officers were dismissed, demoted or
threatened with deportation.

The ICJ/CIJL mission delegation found that a small cadre of palace
advisers including the Prime Minister, the Attorney General and a host of
important political and judicial actors has subverted effective Government
and the rule of law in Swaziland. These palace advisers constitute His
Majesty's Special Committee on Justice, more commonly known as the
Thursday Committee, a body which has dedicated itself to the gratification
of entrenched interests at the expense of national welfare and the
survival of the Kingdom.

Possessing neither a formal nor informal or published mandate, members of
the Thursday Committee pose themselves as the guardians of justice and
operate with unlimited jurisdiction over all matters of national
importance. Silencing dissent, the Thursday Committee is the root cause of
the open assault against judicial independence and the rule of law in
Swaziland.

Despite the fact that the Swazi Government has not yet unequivocally
retracted its 28 November 2002 statement, the ICJ/CIJL is satisfied that
His Majesty King Mswati III released a draft constitution on 31 May 2003
after a drafting process that took approximately seven years. However,
there can be no meaningful solution unless the Government fully respects
the independence of the judiciary and abides by all court rulings
including those that currently remain pending.

Pursuant to the mandate of the ICJ/CIJL mission to Swaziland, the
delegation drafted a series of recommendations designed to assist in
resolving the rule of law crisis and re-centre the Kingdom on a path
towards peace, good governance and the rule of law.

For full report see:
http://www.icj.org/news.php3?id_article=2936&lang=en

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Support the democratic movement in Swaziland. Donations can be made
through the MANDELA FUND: BG Bank, Norre Voldgade 68, 1358 Copenhagen K,
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3327000. The MANDELA FUND is a registered national collection in Denmark.
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