The Election’s & Boundaries Commission (EBC) Case was a challenge by a civil society organization to the appointments made to the constitutionally-mandated EBC. The challenge was unsuccessful at both the High (HERE) and the Supreme Courts. But the issue was not decided on the merits. Instead, the Supreme Court ruled that the CSO (a trust) did not have locus standi (standing) to bring the case.
This decision clarifies (or restates) the rather restrictive standing a person has in constitutional cases in Swaziland.
The situation is this:
(a) For a case alleging a violation of a provision of the ‘Human Rights & Fundamental Freedoms’, a person must have a 'sufficient' interest. Standing in Bill of Rights cases so far seems fairly liberal. The standing section (downloadable HERE) in the Bill of Rights allows cases to be brought for violations in the past, the present or the future (if, rights are ‘likely’ to be violated – yet to be tested). A person may also take a case on behalf of a group. Still, standing cannot be secured on behalf of someone else. And since a person is under an obligation to apply to the High Court, which is only in the capital, Mbabane, the section compares rather unfavourably to standing in South African courts (s 38, HERE).
(b) For a case involving detention, standing requirements are more relaxed – a person can act on behalf of another in alleging that the other person’s right to liberty has been infringed;
(c) For a case involving any other section of the Constitution, a person must demonstrate either:
(i) that the person is the King or a citizen of Swaziland. This latter section is based on s 2(2) of the Constitution – ‘the King and the citizen shall have the right and the duty to uphold and defend this Constitution.’ It was upon this basis that the trust had launched its case to overturn the appointments to the EBC. Both courts ruled that the trust was not a ‘citizen’ for the purposes of the Constitution, notwithstanding that all the trustees were citizens.
(ii) a ‘direct and substantial interest’ in the alleged contravention of the Constitution. This was the test outlined by the (then) Court of Appeal in the Lawyers for Human Rights Swaziland v the King case and reaffirmed in the Jan Sithole case (HERE), both of which related to facts and law prior to the 2005 Constitution.
The ruling regarding the ‘citizen’ question is perhaps not altogether surprising. What is more disappointing is the Supreme Court’s pusillanimous support for the ‘direct and substantial interest’ test. This test has been jettisoned in South Africa, as well as numerous other developing country jurisdictions. These countries have followed the Court of Appeal in the United Kingdom, which ruled in 1982 that where a question involved the public interest, a litigant had only to prove a ‘sufficient’ interest. It is to the Court’s eternal discredit that they chose not to follow this test. In addition, it was somewhat unthinking – the court acted as if the dispensation pre-2005 was exactly the same as the post-constitutional one (the Jan Sithole case was dealing with laws and the Constitution prior to the 2005 Constitution).
In the result, standing for constitutional cases not involving the Bill of Rights has been very significantly curtailed. In such cases, unless a person can prove a direct and substantial interest (nearly impossible in things such as appointments to Commissions) it is now up to citizens or the King to stand up and defend the 2005 Constitution. Since the King makes the appointments, let’s call that the citizen.
