The Chief Justice of Swaziland / eSwatini Bheki Maphalala said the Judicial Service Commission (JSC) was under siege from a political elite that he called ‘treasonous’.
He said it was so powerful it had taken the constitutional powers of key institutions of state.
It was undermining and interfering with the constitutional mandate of the JSC, he said. The judges of the superior courts (Supreme and High Courts) and the specialist tribunals are appointed by the King on the advice of the JSC and magistrates are appointed by the JSC.
Swaziland is not a democracy and is ruled by King Mswati III as an absolute monarch. The King appoints the Chief Justice and all members of the JSC. The Chief Justice also chairs the JSC. The Swazi Constitution of 2005 confirms the King’s position as absolute monarch.
Maphalala made his statement at the High Court on Monday (12 August 2019) during the swearing in of new members of the JSC.
The Swazi Observer, a newspaper in effect owned by the King, reported Maphalala said, ‘The Judicial Service Commission is under siege from a strong powerful and dangerous political elite which is currently occupying our political space.’
The newspaper reported, ‘Maphalala said the existence of the political elite constitutes a serious threat to the political and economic stability of this country together with its international relations and peaceful coexistence.
‘”The Constitution is the supreme law of this land and the Nation has the right and duty to uphold and defend this Constitution,” the Chief Justice said.
‘He warned that any person who suspends, overthrows, abrogates or attempts to do so is guilty of the offence of treason.’
The Observer reported, ‘Maphalala reminded the JSC members that their responsibility is to serve the King and the nation with honesty, dignity and integrity.’
International observers have in the past said that the JSC cannot be regarded as independent. The International Commission of Jurists (ICJ) in a 2018 report on human rights violations in Swaziland stated, ‘ Although the financial and administrative independence of the judiciary is guaranteed by section 142 of the Constitution, it is notable that the King appoints all members of the JSC. There is thus a perception that the composition of the JSC strongly favours Royalty, compromising its independence and, by logical extension, compromising the independence of the judiciary.’
The ICJ noted, ‘The rule of law is weak in Swaziland, and the country has a long history of disregard for the independence of the Judiciary, and violations of human rights, including the right to a fair trial.’
The ICJ recommended as a first step the Constitution be reviewed to guarantee the independence of the JSC by allowing for an open, transparent and accountable appointment process under section 173(4) of the Constitution. The Constitution should be amended so that the members of the JSC cover a wide spectrum of Swazi society, not only royal appointees, it stated.
