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The following text is a press release by Lawyers for Human Rights
(Swaziland) on the speech by the Attorney General at the yearly
opening of the High Court. His full speech was published in Swaziland
Observer in siSwati (23 January 2008) and in English (24 January
2008). The Swaziland Coalition of Concerned Civic Organisations (SCCO)
perceived a clear contradiction between the image
of the Atorney Generaldemocracy and international interpretation of democratic
constitutions. In the following, this contradiction is described in detail.

Africa Contact
Editor
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Lawyers for Human Rights response to the statement of the Attorney General.

Lawyers for Human Rights welcomes the opening of the High Court and
wishes the judges, fellow lawyers, and court officials the help og God
in performing some of the most difficult and onerous of public duties.

May he grant us all the wisdom to listen carefully, to speak
fearlessly and to deliberate wisely in accordance with justice and the
law.

We applaud the Attorney General (AG) stance on openness,transparency,
the highest of ethical standards and freedom of crruption among
lawyers and court officials. We concur with his comments about the
scourge of HIV/AIDS and the importance of acceptance of the reality of
the situation personally, professionally and as a country.

Backlogs

We note and share the concerns of the Attorney General on the backlog
of cases and the especially long time that it has taken between
hearing and the handing down of judgements in sensitive or
controversial cases. These cases are of the utmost importance to the
nation and they are the beginning of a development of a body of
constitutional and administrative law that will start to put flesh on
the already corpulent bones of our supreme law. We would encourage
the Attorney General re-establish a proper system of reporting of case
law.

Concerns

What gives us great concern is the misinterpretation and
misrepresentation of the Constitution by the Attorney General on
several matters of fundamental importance.

These are:

- The fact that in his interpretation the executive (government) is
first among equals.
- His assertion that the separation of powers can be found in the
Constitution.
- His reliance on the Latimer House Principles to back up these assertions.


The Position of the Executive in the Swazi Constitution

Section 64 (1) of the Constitution states that - The executive
authority of Swaziland vests in the King as Head of State.

In no way under Swazi law, custom, tradition or the Constitution can
the King, and therefore the Executive, be said to be "first among
equals". The King and iNgweyama has a special and revered role in
Swazi traditional law and custom to such an extent that our custom
dictates that "the King cannot tell a lie". This is not a prohibition
of royal falsehoods but a statement on how truth and reality are
recognized in Swazi Traditional Law.

The King and iNgweyama also has an elevated role under the Swazi
Constitution where under section 11 he cannot be questioned in court
and therefore his decisions cannot come under judicial scrutiny
either. Therefore it follows that our Executive is not first among
equals but first among strongly weighted unequals. - "First among
equals" is a quaint term that was coined by the British constitutional
historian and chief apologist for the aristocracy and the then status
quo - Walter Bagheot to describe his interpretation of the nature of
the British Prime Minister position in cabinet. It was no more
appropriate to 19th Century Britain than it is to 21st century
Swaziland.

Separation of Powers

The Attorney General continues by saying that the separation of powers
can be found in the constitution. We strongly contest that assertion.

Separation of powers is a philosophy of providing checks and balances
between the three branches of government: the executive (government
ministers and their departments), the legislative (parliament) and the
judiciary (judges and the courts). In theory, it distributes the
power of the state between these three branches and maintains a
healthy tension of oversight and accountability between them. In a
democracy that practices separation of powers the ultimate power rests
in the will of the people, and so parliament and the legislature
become the final arbiter of how the country is governed - not the executive.

We have already seen that in Swaziland the King has supreme executive
authority. Let us look at parliamentary authority in Swaziland today.

Section 106(a) of the Constitution says "the supreme legislative
authority of Swaziland vests in the King-in-Parliament". It goes on to
state the King can appoint nearly one fifth of the House of Assembly
and two thirds of the Senate. The majority of both houses is required
for a bill to become law. In any case, under section 134(b), the King
has the absolute authority to dissolve parliament. It is impossible
to argue that emaSwati have any real political power in this
arrangement. We know that the real power lies with the traditional
authorities and Liqoqo in advising the King.

In other countries, parliamentary elections are typically closely
fought and so often the people in the centre hold the balance of
power. This promotes a culture of problem solving, compromise and
respect for minorities. The Swazi system ensures an inbuilt majority
for those who are sympathetic to traditional causes in all but the
most extreme situations. Democracy is not reflected in the simple
rule of the majority. It is equal access to power and influence by
all. The arrangement is Swaziland is simply and clearly not democratic.

Who Judges the Judges?

Turning to the how independent our judiciary is Section 141 guarantees
the independence of the judiciary. However, the senior judges of the
country are chosen by the Judicial Services Commission. The majority
of this commission is directly appointed by the King and his advisors.
Given this fact, how independent can new judges really be?

The Attorney General admonition to existing and potential judges to
get involved in traditional ceremonies such as iNcwala shows that he
does not want independence but obeisance. This should not be a matter
of concern for the chief legal officer of government. He needs to
respect the ideal of judiciary independence. The judges of the
country have the right and the freedom to attend or not attend
without, as he so readily quotes, fear or favour.

All Angles Covered

Thus we can see that the combined position of the Monarchy and its
advisors directly controls the make up of, and has the potential to
manipulate the decisions of, all three branches of government. We
therefore must disagree in the strongest of terms with the Attorney
General that the Swazi Constitution embodies the doctrine of the
separation of powers.

Commonwealth Rules

The Attorney General is happy to quote the Commonwealth Latimer House
Principals to back up portions of his argument when saying that our
Judges should remain subservient to the Constitution. He conveniently
neglects the preceding section that states that :Parliamentary
procedures should provide adequate mechanisms to enforce the
accountability of the executive to parliament.

There is no history of regular and rigorous accountability of our
government to parliament.

The Latimer House Principles go on to envisage a system of a
multi-party democracy that is thoroughly grounded in the doctrine of
parliament, not the executive, being first amongst equals and sets out
a system of proper oversight of the executive by bodies such as an
Opposition in Parliament, Ombudsmen, Public Accounts Committees, Human
Rights Commissions, Auditors General, Anti-Corruption Commissions,
Information Commissions, Judicial Review, an independent and vibrant
media protected by law and a constructive relationship with civil
society.


We are happy that, as the chief law officer of governmet, the Attorney
General is aware of the Latimer House Principles, we will be a lot
happier when he, and his cabinet colleagues, start to live by them.

The principles are a model for good governance across the Commonwealth
and, if the Attorney General wishes to talk to us about how to work
towards their full implementation in Swaziland, our doors, and the
doors of the rest of civil society, remain open.

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