Uncertain Law and Royal Privilege | Freedom House

Uncertain Law and Royal Privilege

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Judicial dependence

Swaziland’s constitution grants the monarch immunity from law and powers to appoint and remove judges. The king’s absolute authority over the judiciary renders the Swazi legal system hazardous for investors, attorneys and anyone who displeases the king. Twice during Mswati’s reign, attorneys have boycotted the courts for lengthy periods in protest of royal interference. 

The constitution stipulates that the chief justice should be a citizen of Swaziland[1]; however the king’s appointee, Michael Ramodibedi, is a Lesotho citizen. When questioned about this conflict with constitutional law, the secretary of the Judicial Service Commission said there was no Swazi whose qualifications merited the appointment. Of course, Swazi jurists with the requisite qualifications were available, but these probably would not be as pliable as a foreigner on fixed term contract.

Ramodibedi previously was simultaneously employed as a judge in Lesotho, Botswana, the Seychelles, and Swaziland. When the Seychelles government learned of his many posts, his appointment there was revoked.[2] Then, after he had become embroiled in controversies in Lesotho and Swaziland, his appointment in Botswana was not renewed. Ramodibedi has refused a request from the Lesotho prime minister to resign, and the prime minister has called for an investigation of Ramodibedi’s conduct in office.[3]

Ramodibedi has been very serviceable to King Mswati. When the king confiscated a Swazi businessman’s hotel, the owner attempted to sue for compensation. Ramodibedi blocked the suit with an instruction to attorneys that no case against the king can be brought before any court. The Law Society called the instruction unnecessary pointing out that the constitution already granted the king immunity. Nevertheless, the point was clear. The chief justice’s loyalty lay with the king and not with the constitution or with ordinary people who might seek justice from the courts.

In 2010, Judge Thomas Masuku, an internationally respected member of the Swaziland High Court bench, found in favor of Swazi villagers who sued to retrieve cattle which police had seized and placed in the king’s herd. In his judgment, Masuku recalled that the king recently had appealed to Swazis to obey the law. He wrote ‘It would be hard to imagine that his majesty could conceivably speak with a forked tongue, saying one thing and authorizing his officers to do the opposite.’ Based on this sentence, Ramodibedi, acting as prosecutor and judge, found Masuku guilty of insulting the king,[4] who then ordered the justice minister to dismiss Masuku. When the minister hesitated, the king fired the minister and replaced him with a compliant prince who signed the dismissal notice. Needless to say, no judge who values his job would now risk a conflict with the chief justice.

In 2008 Mswati’s unilateral decision to appoint Barnabus Dlamini to the post of prime minister was also a violation of Swaziland’s constitution. Dlamini, who is known for corrupt land deals, was not qualified because he was not a member of parliament. Chapter VI, paragraph 67, (1) of the constitution states “The King shall appoint the Prime Minister from members of the House acting on a recommendation of the King’s Advisory Council.” Several Swazis with access to the palace inner circle have characterized the appointment of Dlamini as having further strengthened Mswati’s absolute hold on power.[5] Dlamini is known to readily carry out Mswati’s instructions without question.

It is widely believed in Swaziland that Prime Minister Dlamini collaborates with the king in various illicit schemes designed to increase both the king’s and the prime minister’s personal wealth. In 2012, dealings by the prime minister and the king to exclude a lower cost mobile phone service from Swaziland in favor of MTN, in which both Mswati and Dlamini are shareholders, caused a public outcry that culminated in an unprecedented vote in the lower house of parliament of no confidence in the prime minister. In terms of the constitution, the king was legally bound to remove the prime minister. However both the prime minister and the king made a show of ignoring the no confidence vote and after a 12 day stand-off, parliament meekly rescinded the vote.[6] A fuller account of the MTN saga is at Annex 5.

Given the condition of rule of law in Swaziland, it is not remarkable that Swaziland is country number 123 out of 185 on the World Bank’s ‘Ease of Doing Business’ rankings. It is telling that two constituent scores were even lower: 128 from 185 for protecting investors and 174 out of 185 for enforcing contracts.[7]

Traditional governance in disarray

At least 80 per cent of Swazi people live in the 55 tinkhundla, each consisting of between 5 and 10 chiefdoms. The approximately 350 chiefs hold hereditary office with the king having responsibility for choosing the heir who succeeds to a vacant office. In Swaziland’s polygamous traditional culture, often there are many heirs, and contests among heirs for appointment by the king have seriously disrupted many local communities.[8]

The chiefs, as local representatives of the king, exercise administrative and judicial authorities in accordance with unwritten customary law. They are charged with allocating land to families, looking after the welfare of the people in their chiefdoms and maintaining law and order. Thus the economic and social well-being of an individual family is heavily dependent on the family’s standing with the local chief. This aspect of Swazi rural life is a major factor in rural people’s subservience to chiefs, and through them, to the king. The World Bank has criticized the power of chiefs stating that the poor systems of accountability and land management are among the most critical constraints to growth and poverty reduction in rural areas.[9]

The customary legal system presided over by the traditional chiefs is empowered by the constitution to function parallel to the judiciary headed by the chief justice. However the constitution states only that “the powers and functions of the chiefs are in accordance with Swazi law and custom” and offers no clarity concerning the content of Swazi laws and customs. (Chapter XIV, paragraph 233)  This lack of clarity provides ample cover for individual chiefs to interpret laws and customs subjectively and arbitrarily.[10]

In further defining the position of the traditional chiefs within the dual legal system, the constitution states (chapter XIV, paragraph 233) that “chiefs are the footstool of iNgwenyama and iNgwenyama rules through the chiefs.” (iNgwenyama is the siSwati language equivalent of the title “king”.) Presently the footstool is wobbly and the Council of Swaziland Churches reports that nearly half of all Swazi chiefdoms are in dispute over who should be the rightful incumbents.

Denial of basic rights

In every year since 1993, Freedom House in its annual Freedom in the World report has rated Swaziland as “Not Free.”[11] In 2012, the African Commission on Human and Peoples' Rights issued a sharp criticism of Swaziland's human-rights record, calling on the Swazi government to honor its commitments under international law with regard to freedom of expression, association and assembly.

The 2012 U.S. State Department Human Rights Report for Swaziland cited a list of serious abuses perpetrated by police, soldiers and other government agents. These included killings by security forces; use of torture, beatings and excessive force on detainees; arbitrary arrests and lengthy pre-trial detention; arbitrary interference with privacy and home; restrictions on freedoms of speech and press and harassment of journalists; restrictions on freedoms of assembly, association and movement; prohibitions on political activity and harassment of political activists; harassment of labor leaders and restrictions on worker rights.[12]

The king’s increasing reliance on security forces to maintain control

King Mswati is both commander in chief of the Umbutfo Swaziland Defense Force and Swaziland’s minister of defense. Throughout 2011 and 2012, as the king was under pressure from Swazi activists to implement economic and political reforms, the army and police were employed against street demonstrations and to break up both public and private meetings. This included beating protesters and taking numerous activists into custody. One university student leader arrested at the time continues to be in detention in September 2013.

Reacting to the protests, the king substantially increased the security sector establishment and stocks of arms, munitions and equipment. African Defense Magazine reported that Swazi government spending on defense equipment in the budget year 2013 – 14 represents a more than 50 fold increase over the previous year. The figures are E 63.19 million (USD 6.8 million) for this year compared to E 1.25 million (USD 134.4 thousand) last year. The budget allocation of E 1.9 billion (USD 206.5 million) for the 3 security forces – army, police and correctional services - amounts to slightly more than 15 per cent of the total government budget of E 12.6 billion (USD 1.37 billion).[13] By comparison, the governments of Botswana and Lesotho allocated in their 2013 – 14 budgets around 9 per cent for security forces including military and police.

Swazi activists criticized the extraordinary security sector increases and said the increases are preparations for strong arm responses to public protests during the next government financial crisis. However a Swazi government spokesman said the increases are needed to fight cattle rustling on the Mozambican border, a hardly plausible excuse.

[1] The Constitution of the Kingdom of Swaziland, July 26, 2005, Chapter VIII, 157, ‘Appointment of justices of the superior courts on contract’.

[2] Freedom House interview with a judge of the Seychelles Supreme Court, 2011.

[3] Musa Ndlangamandla, ‘Out with Ramodibedi says Lesotho government’, Mail and Guardian, Johannesburg, June 20, 2013, http://mg.co.za/article2013-06-20-out-with-ramodibedi-says-lesotho-government

[4] 54   Swazi Media Commentary, ‘Judge’s Letter of Suspension in Full’, July 1, 2011, http://swazimedia.blogspot.com/2011/07/judges-letter-of suspension-in-full-html

[5] Freedom House interviews with Swazi elders, Swaziland and South Africa, March 2013.

[6] Richard Rooney, ‘Swaziland: Govt No Confidence Vote Reversed’, Gaborone, October 17, 2012, http://allafrica.com/stories/201210171090.htm/

[8] Freedom House interview with Council of Swaziland Churches, Manzini, March 13, 2013.

[9] World Bank, ‘Swaziland Overview’, http://www.worldbank.org/en/country/swaziland/overview

[10] Freedom House interviews with Swazi elders, Swaziland and South Africa, March – April 2013.

[11] Freedom House, ‘Freedom in the World 2013, Swaziland, //www.freedomhouse.org/report/freedom-world/2013/swaziland

[12] US State Department, ‘Swaziland 2012 Human Rights Report’, http://www.state.gov/documents/organization/204384.pdf

[13] Africa Defense, ‘Secret Swazi Arms Deal Causing Concern’, March 5, 2013, http://www.africa-defense.com