Barnabas Sibusiso Dlamini can't be running a democracy if no challenge to the monarchy or state is possible, writes Musa Ndlangamandla.
Behind the systematic undermining of the rule of law and judicial independence in Swaziland lies King Mswati III's deliberate flouting of a constitutional mandate to indigenise the judiciary.
The sorry state of the country's legal system was highlighted recently by the heavy jail sentence imposed on Nation editor Bheki Makhubu for criticising the judiciary, and by the Swaziland Law Society's complaint to the African Commission on Human and Peoples' Rights about how the king undermines the judiciary.
Section 157 of the Swazi Constitution stipulates that a non-Swazi may not be appointed a judge of the Supreme Court seven years after the date of promulgation on July 26 2005. This clause reflected the desire of ordinary Swazis that the courts be Swazi-run.
In 2009 the king appointed a controversial judge from Lesotho, Michael Ramodibedi, as chief justice. Two weeks ago, the government told him to resign for allegedly contributing to this judicial mess. In 2011 he circulated a practice order banning all courts from entertaining legal claims against the king and his office, justifying this with reference to section 11 of the Constitution, which puts the king above the law. Swazi lawyers note the problem of the king's immunity versus the fact that his businesses reach legally binding commercial agreements.
On April 19, his birthday, Mswati signalled his gratitude to the chief justice by conferring the Order of King Mswati (second class) on him. Ramodibedi serves at the king's pleasure, continuing in his post despite the fact that his contract expired more than a year ago. This is seen as an obvious threat to the country's judicial independence.
Thulani Maseko of Lawyers for Human Rights Swaziland told the Mail & Guardian: "It is a trite and fundamental requirement of the rule of law that judges must enjoy security of tenure if they are to execute their function independently, and without fear or favour. A judge on contract, which has usually been the case with many of the non-Swazi judges, is likely to be at the behest of the appointing authority. He or she may not make decisions against his employer, lest he [be] offended."
After the promulgation of the 2005 Constitution, and prodded by the Commonwealth, the Swazi government seemed keen to "indigenise" the judiciary, and a timetable and procedure based on seniority were set for compliance. Prince David Dlamini, the former justice minister and chairperson of the Constitution-drafting committee, said that in 2008 the then chief justice, Malawian judge Martin Banda, was told to start preparing Swazi nationals for "the surrendering of the judiciary to local hands". But that process stalled when Banda (husband of Malawian president Joyce Banda) had a stroke.
Towards the end of the seven-year transition period mandated by the Constitution, there was a suspicious flurry of appointments of foreign nationals to the judiciary, including Ramodibedi. This was widely seen as a move to circumvent section 157.
Further cementing royal control, a slew of appointments Mswati made to the Judicial Service Commission (JSC), including three lawyers linked to the royal family. (The Constitution restricts the number of lawyers on the JSC to two.)
When one of Swaziland's few independent judges, Thomas Masuku, was fired in 2011, one of the members of the JSC rejoiced publicly, saying Masuku had got what was coming to him. This was followed by the appointment of sweetheart judges.
Questionable judgments suggesting predetermined outcomes soon began emerging, among them the conviction of Amos Mbedzi, a South African citizen and former Umkhonto weSizwe cadre, for the bombing of a bridge near a royal palace. On appeal, Mbedzi's lawyers complained that the rule of common purpose had been wrongly applied in imposing an 85-year jail term. In another matter, a judge ignored claims that suspects had been tortured, despite the fact they appeared before him with visible injuries.
Over the past three years no court challenge to the government has been successful. Swazi Prime Minister Barnabas Sibusiso Dlamini was so grateful for this that he publicly proposed a thanksgiving party for Cabinet ministers and judges. But, celebration or not, he can't be running a democracy if no challenge to the monarchy or state is possible.
Musa Ndlangamandla is former chief editor of the Swazi Observer and adviser to, and speechwriter for, Mswati. He is currently an intern with amaBhungane, the M&G Centre for Investigative Journalism