At the recent 'First Biennial Conference on the Curriculum' held by the National Curriculum Council, I gave a paper on the Free Education Case (HERE). The case, and the challenge of government in the formal (colonial) courts, has made Swazis uncomfortable.
So I asked the participants, about 100 Swazis from different walks of life, why they didn't like taking questions of law or policy to court. (Swazis tend not to mind taking contract/commercial disputes to the courts, but are more than reticent about social/policy questions.) The answers were illustrative.
There were four main reasons, being:
1) Cost of attorneys
2) Poor judgments / bad rulings - many of the decisions of the courts in Swaziland have been conservative or questionable.
3) Government ignores the rulings - this has happened earlier this decade, as well as in the Free Education Case itself.
4) Illegitimacy - the courts are colonial institutions and not to use the traditional dispute resolution mechanisms is to "betray the system" (in their words).
These reasons flow into each other in confusing ways. For example, the illegitimacy issue adds to the cost, as attorneys have to clamber over each other for the fewer cases that come to the formal system (lawyers are strictly banned from the traditional courts). Likewise, there is no doubt that some of the poor judgments have arisen directly because of the fear that government would ignore the ruling and further undermine the rule of law.
So what is to be done?
I'm not sure. I think it would be really helpful if the attorneys were all less greedy here, but some are on the breadline, so how can you say that?
I think also that the dualist system has to be abolished. But how do you do that in this day and age? What would the international community say if tomorrow it was announced that the Magistrate, High and Supreme Courts were all abolished?
It wouldn't be pretty but it might be for the best.
