Swaziland Justice Sector and the Rule of Law
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Swaziland Justice Sector and the Rule of Law A review by AfriMAP and the Open Society Initiative for Southern Africa Maxine Langwenya March 2013 2013 Open Society Foundations This publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under a Creative Commons licence that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for non-commercial educational or public policy purposes. Photographs may not be used separately from the publication. Published by: The Open Society Initiative for Southern Africa ISBN: 978-1-920677-04-6 For further information, please contact: AfriMAP/OSISA PO Box 678 Wits, 2050 Johannesburg South Africa www.afrimap.org [email protected] www.osisa.org Design and lay-out by COMPRESS.dsl | www.compressdsl.com Contents List of tables vi List of abbreviations and acronyms vii Glossary of SiSwati terms ix Foreword x Preface xii Acknowledgements xiii Part I Swaziland: Justice Sector and the Rule of Law Discussion Paper 1 Introduction 3 1 International human rights treaties 4 2 Government respect for the law 8 3 Management of the justice sector 11 4 Independence and accountability of courts, prosecution authorities and lawyers 14 5 Crime and punishment 17 6 Access to justice 19 Conclusion and recommendations 24 Part II Swaziland: Justice Sector and the Rule of Law Main Report 27 1 Introduction 29 A. Background 30 B. The legal system in pre- and post-colonial Swaziland 31 C. Constitutional developments 34 D. The rule of law: A historical conspectus 36 E. Legal and institutional framework 38 F. Structure of the courts 50 G. The legislative process 61 H. Law reform in the justice sector 66 I. Recommendations 69 2 Management and oversight of the justice system 70 A. Introduction 70 B. The administration 71 C. The Attorney General 71 D. Commission on Human Rights and Public Administration 72 E. The Elections and Boundaries Commission 73 F. Anti-Corruption Commission 74 G. Planning and financial management 77 H. Funding of the justice sector 77 I. Auditing 78 J. The judiciary and administrative autonomy 79 K. Public information 83 L. Recommendations 83 3 Government respect for the rule of law 85 A. The rule of law as an exhortation 85 B. Mechanisms for review and accountability 86 C. Examples of government defiance of the rule of law 88 4 Independence and accountability of judges and lawyers 91 A. Introduction 91 B. The Judicial Service Commission 91 C. Judicial independence 93 D. Cases where the executive refused to respect the rule of law 99 E. Lawyers 104 F. Provision for the Directorate of Public Prosecutions 110 G. Recommendations 112 5 Criminal justice 113 A. Introduction 113 B. Power to effect arrest 113 C. Protection from crime 115 D. The community police 123 E. The law relating to bail in Swaziland 124 F. Police code of conduct 127 G. Investigation of complaints against the police 128 H. Fair trial 129 I. Right to legal representation 130 J. Victim and witness protection 134 K. Appropriate remedies and sentencing 135 L. Prisons 136 M. Rate of imprisonment 139 N. Conditions of detention 139 O. Reintegration of offenders 141 P. Recommendations 141 6 Access to justice 143 A. Introduction 143 B. The family 143 C. Chiefs’ courts 144 D. Ndabazabantu 146 E. Swazi courts 146 F. Access to courts 149 G. Right to appear and jurisdictional restrictions 150 H. Reasonable delay 152 I. Respect for court orders 152 J. Mechanisms for asserting rights outside the court system 152 K. Recommendations 153 7 Development partners 155 A. Coordination of development assistance 155 B. Donor-funded projects and human resources 156 C. Donor projects and human resources 156 D. Development assistance and promotion of, and respect for, human rights 156 E. Access to information on development assistance 156 References 157 List of tables Table 1 List of international and regional conventions acceded to and ratified by Swaziland 41 Table 2 Monies received from donors for governance issues 78 Table 3 Distribution of judges and magistrates by courts and gender 96 Table 4 Guide to legal practitioners’ fees 108 Table 5 Statistics in respect of cases reported to the police and in respect of cases disposed of by the courts 116 Table 6 Statistics in respect of crimes prioritised by the police in the period 2008 to 2010 116 Table 7 Ranks and total number of police and civilian officers within the RSP 117 Table 8 Rates of imprisonment for the 2010/2011 year 139 vi SWAZILAND: JUSTICE SECTOR AND THE RULE OF LAW List of abbreviations and acronyms ACC Anti-Corruption Commission ACHPR African Charter on Human and Peoples’ Rights AfriMAP Africa Governance Monitoring and Advocacy Project AG Attorney General AU African Union CDC Constitutional Drafting Committee CEDAW Convention on the Elimination of All Forms of Discrimination against Women CHRPA Commission on Human Rights and Public Administration CJ Chief Justice CMAC Conciliation, Mediation and Arbitration Commission CP&E Criminal Procedure and Evidence Act CRC Convention on the Rights of the Child DPP Director of Public Prosecutions EBC Elections and Boundaries Commission GDP gross domestic product HURISA Human Rights Institute of Southern Africa ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Commission of Jurists ICT information and communications technology IMF International Monetary Fund IT information technology ITUC International Trade Union Confederation JSC Judicial Service Commission MNC medium neutral citation MP Member of Parliament MVA Motor Vehicle Accident Fund NDS National Development Strategy NGO non-governmental organisation OAU Organization of African Unity OSISA Open Society Initiative for Southern Africa PEPFAR President’s Emergency Plan for Aids Relief PRSAP Poverty Reduction Strategy and Action Plan PWD Person living with a disability RSP Royal Swaziland Police SACPRO Swaziland Association for Crime Prevention and the Rehabilitation of Offenders SWAZILAND: JUSTICE SECTOR AND THE RULE OF LAW vii SACU Southern African Customs Union SADC Southern African Development Community SAFLI South African Legal Information Institute SAP Structural Adjustment Programme SFTU Swaziland Federation of Trade Unions SNAT Swaziland Association of Teachers SNUS Swaziland National Union of Students SWAGAA Swaziland Action Group against Abuse SWAYOCO Swaziland Youth Congress Swazilii Swaziland Legal Information Institute UN United Nations UNDAF United Nations Development Assistance Framework UNDP United Nations Development Programme UNICEF United Nations Children’s Fund UPR Universal Peer Review USD United States dollar WLSA Women and Law in Southern Africa viii SWAZILAND: JUSTICE SECTOR AND THE RULE OF LAW Glossary of SiSwati terms Bandlancane: Smaller council of advisers at the level of traditional local councillors. Emalobolo: Cattle (and sometimes cash) given to the bride’s family by the groom’s family on marriage. Imphangele itala imphangele: Means that children may grow up and behave like their parents. Ingwenyama: The official title of the Swazi King, meaning ‘the Lion’. iNgwenyama-ayombula ingubo eNkhosini: This means to remove from oneself the blanket that would either protect one from weather elements and thus show one’s vulnerability, as it were, to the elements. Kwembula ingubo enkhosini: To seek the King’s intervention regarding a sensitive matter/conflict/ deadline. Liqoqo: The King’s Advisory Council. Lusendvo: An inner council of the family as understood under customary law. It is composed of members of the nuclear as well as the extended family. Nawe uliphoyisa: You are also a police officer. Ndabazabantu: Literally means one who likes other peoples’ stories. This is an officer who deals with land disputes, especially disputes regarding Swazi national land, but not title-deed land. Sibaya: Is the Swazi National Council, which is made up of all adult Swazi citizens. Tinkhundla: An inkhundla (plural, tinkhundla) is an area comprising several (about four or five) chiefdoms which, at election time, serves as a constituency area for the election of a parliamentary representative. Umphakatsi: The chief’s official residence. SWAZILAND: JUSTICE SECTOR AND THE RULE OF LAW ix Foreword This report evaluates Swaziland’s compliance with continental, regional and international commitments related to justice and the rule of law. The overall objective of the report is to assess the efficacy, accountability and responsiveness of the justice sector in Swaziland and to recommend policy and legislative reforms. The report was commissioned by AfriMAP and OSISA as part of a continent-wide initiative to assess African governments’ compliance with good governance, democracy and human rights standards. African governments and leaders have made good governance and the protection of human rights a central part of Africa’s development agenda. The challenge is no longer about a lack of normative frameworks and standards, but about implementation. By publishing a report of this nature we hope to catalyse a national dialogue around the justice sector that will identify and set national priorities. Established in 2004 by the African foundations of the Open Society Foundations, AfriMAP has been monitoring the compliance of African states with the new commitments undertaken by the African Union since 2000 in the field of good governance, democracy, human rights and the rule of law. The report