The current turmoil in Swaziland is a result of blurred lines between the powers of the executive, the judiciary and legislature, making it unclear who exactly was making the decisions.
These were the findings of Dr Phillip Tahmindjis who presented the International Bar Association’s report on justice in the country.
There was a confusing situation where King Mswati III, the legislature, the executive and a shadowy body called the Thursday Committee were all making decisions, he said.
”King Mswati III is an absolute monarch but he needs to take advice and it’s unclear who he should take advice from. Then there’s the Thursday Committee who are also making many decisions.”
The Thursday Committee is chaired by Prime Minister Sibusiso Dlamini. Other politicians and the Queen Mother are members.
”This is an unregulated body that interferes… it even decides which judges are appointed,” said Professor Shadrack Gutto, Professor of Law at Wits. This body should be disbanded, he said.
The justice system in the tiny country was thrown into disarray late last year when its attorney-general threatened to fire three high court judges if they refused to drop an abduction case involving a teenage bride for the king.
Six South African judges working in Swaziland resigned their posts in November after Swaziland’s prime minister questioned their authority in a judgment in a case involving the king’s brother.
The High Court declared that it would not hear applications brought by the government. The police have refused to implement court orders, and government declared that it would not abide by court decisions with which it did not agree.
Raychelle Omamo, President of the Law Society of Kenya, said during discussions with Prime Minister Sibusiso Dlamini it appeared that the government believed this crisis was created by others.
”His attitude was one of indignation. There was a feeling that he saw the judiciary as a threat to the King and the traditional way of life. There is a feeling that the crisis was created by other people,” Omamo said.
The country’s problem’s are further complicated because it has a dual system of customary law and Roman-Dutch common law,” said Tahmindjis.
Tahmindjis held up Nelson Mandela as a leader that Swaziland could take lessons from. ”Mandela is a traditionalist but when he came to power he managed to marry democratic law and customary law. There is no reason why these two systems cannot co-exist.”
In its report the IBA stressed that Swaziland’s new constitution must include guarantees on basic human rights for all, clarity on the legal powers of the King, the High Court, and the relationship between the common law and customary law.
The judiciary crisis had delayed the completion the country’s new constitution.
The report also recommended that legislation governing the appointment, tenure, conditions of service and removal of judges and magistrates be revised and consolidated.
The legislation establishing the Judicial Service Commission must provide for the independence of the body in matters pertaining to recommendations to the King on judicial appointments, conditions of service for judges and magistrate’s, and their removal from office.
The report also suggested that all judges who resigned in protest be invited to resume their duties. – Sapa