INDIRECT CLAIMS AGAINST HIS MAJESTY

A good article in the Times of Swaziland today outlines one reason the legal profession is so irate with the Chief Justice (HERE).  A lot of the anger stems from a directive that bans "indirectly" naming His Majesty as a respondent in any legal claim. But how is the Registrar of the Court (the person responsible for accepting and filing legal claims) to know when such a claim begins to tread on the cloth of the King and iNgwenyama?  One can hardly turn over a stone in Swaziland without finding some remnant of the Royal family there.  And even before this, how could a lawyer make this determination?  The case that started this whole mess only involved members of the police and the King's Office (HERE).  If members of the King's Office are granted the legal immunity of the King (s 11) and iNgwenyama (s 228), does this extend to Ministers of the Crown?  Chiefs? 

Bear in mind that probably half the legal profession nurture the vague hope of being some sort of senior government official or minister somewhere along the line.  From that point of view, the job of being a lawyer under such conditions becomes impossible.

Written law only works to the extent that words are attached to some meaning, and there is a clear path to amend the meaning or discuss the words.  Sections 11 and 228 relating to the legal immunity of the King and iNgwenyama should be given shape the same way as any law is given shape, through court cases.  The Chief Justice's directive circumvents this by using a 'procedural power' (regulating the administrative functioning of the courts) to make 'substantive law' (about the scope of the immunity of the King and iNgwenyama).  This would seem to be 'ultra vires' (beyond the power) of the Chief Justice's authority.

More obviously, for anyone with a claim that is prevented by this directive, it violates s 21 the right to a fair hearing, which states that "[i]n the determination of civil rights...a person shall be given a fair and speedy public hearing."  It is unclear whether s 35 (standing) would allow any lawyer or person to challenge the directive on this ground. 

A Remote Control Chief

One outcome of having a Chief Justice running events from outside the country is that disputes between judges, which might have taken place quietly within the corridors of power, have to be reduced to fax or email. This makes a fascinating spectacle. For example, look at this letter from the Acting Chief Justice to a former Acting Chief Justice regarding a high-profile murder trial (HERE). It is yet more evidence that the current divisions within the courts are having both real and perceived effects on the administration of justice. Surely, if Simelane is convicted, the fact that the Chief Justice involved himself personally in the case, and especially pressured the trial judge to terminate the services of the pro deo counsel (free, court-appointed lawyer), there would be serious grounds for appeal? Lucky Howe, the pro deo counsel, will be arguing so.

ADDENDUM: Lucky Howe has since tendered his resignation as attorney for the accused (HERE).

Congratulations AG! And...(Acting) CJ...Sort Of...

As of 1 August 2010, the Attorney-General of Swaziland will be appointed for another 5 years.  Although only an ex officio member of Cabinet, the AG is in my estimation the most powerful man in parliament.  How?  He controls the legislative process.  The AGs office is responsible for preparing bills.  As there are no political parties allowed in the Swazi parliament, he is the sole source of legislation.  Nor does Cabinet exercise control:  if there is legislation he doesn’t like, the AG will make sure it is buried in the morass of draft bills and policies floating around the office.  Legislation he agrees with will receive favourable treatment.  That the AG is the most powerful man in parliament under the 2005 Constitution is no accident – he drafted it.  So, congratulations.  By the time he finishes his term in 2015, the current AG will have been in office for a decade.

The Acting Chief Justice was not so fortunate.  He has had his probationary term extended for a little over 4 months (7 October 2009 – 25 February 2010).  You see when the AG was drafting the sections on the judiciary, he forgot to include security of tenure for the senior judges.  Big problem.