From All Black to All Swazi?

History was made this week apparently as the highest court in the land was for the first time constituted entirely of black Africans (HERE).  Stories like this always shock me back from my (somewhat imagined) post-racial existence - colonialism, dislocation, apartheid, everything comes washing over me in ways that are uncomfortable for a white person in this part of the world.  At the same time, I get immense reassurance from developments like this.  It's a great achievement and Swaziland should be proud.

Still, a black African court means very little when compared with an all-Swazi Supreme Court (none of the judges that sat was a Swazi).  This should signal a seismic shift in Swazi constitutionalism.  According to s 157(1) of the 2005 Constitution, it is scheduled to happen by 8 February 2013.

Standing in Swaziland’s Constitutional Court

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.  

The Government as Chelsea

The Supreme Court delivered all its verdicts for its May session on Friday (28 May 2010) and preliminary reports suggested a Chelsea-like score in favour of the government (here). This has many people scratching their heads. Bewilderment has turned to despondence for some, as the Court also handed costs orders against plaintiffs in public interest cases. "It's to ensure the government has an extra bit of firepower against these groups," said one scowling lawyer, "it means they can run to attach property at any stage." It certainly seems a bit excessive to issue costs against, for example, an association seeking to enforce their children's constitutional right to free primary education.

Before we get too bitter, though, let's wait to see the reasons. (Attempting to get the reasons was an interesting exercise - we waited in the atrium of the High Court for four hours while copies were made by the Deputy-Registrar. But then they were only given to the lawyers of each case. Karl Popper would not have approved.)

(ps, I haven't quite mastered the use of pictures etc, this photo is from top-footballer.com. I'm not just saying this because I'm a lawyer and I fear being sued, I actually genuinely care about photographers receiving their due.)

(Note: Since this blog was posted it has come to my notice that the Court did not issue a costs order in the Free Education Case, nor in Aphane judgement, although it did in the EBC case - details to come.)

In the beginning...

...was the final word, and the final word lay with the Supreme Court of Swaziland. More or less, perhaps. At least so says The Constitution of the Kingdom of Swaziland Act No 1 of 2005. It's an exciting time to be starting this blog covering the Swazi constitution as the Supreme Court has just been sitting and has promised to release a whole raft of judgments on 25 May 2010. Cases heard include appeals from the Free Education Case ("2009 - Most Talked About"), the Doo Aphane judgment ("2010 - Most Judicious") and the Elections & Boundaries Commission Case ("2009 - Most Controversial"). Please stay tuned for updates on the results and for other news and views of the 2005 Constitution.