SACKING A PM FOR INCOMPETENCE

A journalist has said that a unionist said that a traditional ruler said that the King said that he could not sack the Prime Minister for ‘incompetence’ (2005 Constitution, s 68(1)(a)) until the Prime Minister had ‘done something unconstitutional’ (HERE). ‘Incompetence’ in this instance is to be distinguished from ‘infirmity of body or mind’ (s 68(1)(f)). The meaning to be taken from the article is (I think) that the PM has to have materially breached the 2005 Constitution. If this is His Majesty’s view, it is a noteworthy interpretation of a section which reads as follows:

“68(1) The office of the Prime Minister shall become vacant where –

(a) The King revokes the appointment for incompetence”

Interpreting this to mean that the PM has to have materially breached the Constitution is a very restrictive interpretation of the section. Of course, His Majesty’s view may be entirely different from what was quoted by someone quoting someone who was in turn quoting someone else. Even if they were direct quotes.

Time for the Nuclear Option?

There has been a scandal involving a piece of land with a market value of about E5 million being sold for a whopping E31 million. Corruption in land deals is nothing to this part of the world, but parliament actually did something about it this time, which is a fairly irregular phenomenon. A parliamentary inquiry found all sorts of improper conduct and during public hearings about the matter, the Minister of Housing explosively implicated the Ministry of Foreign Affairs in the whole deal (HERE). With at least four ministries involved, the expectation has been high that something would be done. It seems now that with so much heat on them, three Ministers have secured a settlement of the issue with the businessman who sold the land, who doesn’t want to see his other business interests adversely affected (HERE).

But beside this political settlement, what can be done in such a situation in Swaziland?

There are three broad avenues of action: (1) criminal; (2) executive; or (3) parliamentary. Let us explore each in turn.

(1) Criminal

It is not clear why this matter has not been turned over to the police or more relevantly, the new Anti-corruption Commission. There seems to be enough evidence of wrongdoing to justify a “suspected offence” under the Prevention of Corruption Act (s 10(1)(c)). The Anti-corruption Commission has broad investigative powers, with the ability to issue subpoenas (s 11(1)(b)) and have access to documents and bank accounts (s 12). Further, it can even act on its own initiative (s 10). Its lack of action in this matter makes some MPs calls for its abolition sound more sensible (HERE).

(2) Executive

In a sign that some are clearly nervous about the whole matter, Cabinet held a 20-hour meeting (HERE). But it is unclear what Cabinet could do in this situation, anyway. The power of sacking or reshuffling the Ministers involved rests with His Majesty (2005 Constitution, s 67). As does the power over senior civil servants (s 76). So ministers are not really head of their ministries in that they do not have the power of appointments over any part of them.

(3) Parliamentary

In stating its recommendations regarding the principal secretaries involved in the mess, parliament attempted to divorce the ‘principal secretary’ (head of department) function from the ‘controlling officer’ (power to sign off on public funds) function. The recommendations from parliament concentrated on the ‘controlling officer’ powers of the principal secretaries, recommending that these powers be removed from the relevant principal secretaries. This is because the ability to appoint ‘controlling officers’ at least arguably lies with the Minister of Finance. This says a lot about modern Swazi constitutionalism, at least as far as the colonial institutions (parliament, courts etc) are concerned. Parliament stayed clear of making recommendations about the head of department because as stated that would require making recommendations to His Majesty King Mswati III. At least in the view of the parliamentary finance committee, this is outside the power of parliament (HERE). That is not a position that in my view is supported either politically (making a recommendation to the King would hardly damage the monarchy, or at least hardly any more than the fact that these people were appointed by him and have not been removed by him) or constitutionally (the 2005 Constitution clearly does constrain the King, albeit rather less than might be considered ‘normal’, and also it seems without curtailing his power to rule by decree in terms of the 1973 Decree).

Parliament certainly flexed its muscles throughout this affair. It is still some way from exercising its power to pass a vote of no confidence in a Minister (authorised by s 68(4)(e)), again probably because this would be directly recommending His Majesty to take action – the Ministerial vote of confidence simply authorizes the King to remove a Minister at his discretion. But there seems to be another land deal controversy in the offing (HERE). And further, the Executive seems altogether content with the actions taken so far in this affair. If parliament were to become a serious player on the Swazi political scene, this raises the prospect of parliament passing a resolution of no confidence in Cabinet. Section 68(5) of the 2005 Constitution actually does enable parliament to have control over Cabinet, it reads as follows:

“Where a resolution of no confidence is passed on the Cabinet by a three-fifths majority of all members of the House the King shall dissolve the Cabinet.”

If parliament was serious about wresting control of the Cabinet into its own hands (or at least being able to have a say over its constitution), s 68(5) is ready and waiting at any time. It requires only a 3/5ths majority vote, unlike the Ministerial vote of no confidence which requires a 2/3 vote. This means that it would need the support of 39 MPs (there are 55 members in the lower house, and 10 members appointed by the King: s 95). Crucially, and again differently from the Ministerial vote of no confidence, a resolution of no confidence in Cabinet actually requires that His Majesty take action, in this case disbanding Cabinet. For this reason, it is unlikely to be used. A parliament that is too timid to actually make recommendations to His Majesty is hardly likely to actually tell him what to do.

Nevertheless, s 68(5) sits there like a shining red button on the control board of Swazi constitutionalism. It would take 39 MPs to press the button. These MPs would need to be prepared to resign if Cabinet was not disbanded following the resolution (again, highly unlikely). But it would mean that parliament had finally landed on the Swazi political scene. Parliament would no longer play its (highly useful) role of providing information about government, and would actually be involved in crucial decisions in constituting government. For this reason, s 68(5) should be known as the Nuclear Option in the 2005 Constitution. If invoked, it would dramatically herald a new age in Swazi constitutionalism.

Farewell Mabel, and ‘Allo ‘Allo ‘Allo

There is simply no denying the personal nature of the courts and the way personality plays itself out in law and judgments.  And Swaziland has just lost one of the strongest characters on its judiciary:  Ms Mabel Agyemang (HERE).  Agyemang J ruled against the government in the Free Education Case (HERE) and had the reasoning of her judgment quite rudely overturned by Maphalala J in a later hearing of a different question in the same case.  (Maphalala J should not have overturned her reasoning, as Swazi courts are supposed to recognize precedent, and he was a fellow High Court member, not a judge superior to Agyemang J.)  Whether it was this slight that has her packing her bags, or whether there is some other reason she is going, I have no idea.  I do know she left by giving the Swazi government a solid kick in the pants:  awarding E470,000 (about US$70,000) to a civil servant for a wrongful arrest.

In her place, the King has appointed one acting justice and two judges:

(1)    Justice Phillip Levinsohn – Deputy Judge President of the High Court of Kwa-Zulu Natal.  A senior judge with extensive corruption experience, including on the corruption investigation of (now President) Jacob Zuma (see the end of a newspaper article, HERE).  Levinsohn has apparently been brought in specifically to oversee some of the corruption cases, including against Mr Qhawe Mamba, a cousin to the King.  He has been brought in on an acting basis, until 11 January 2011 (!), so he better get cracking if he wants to achieve anything.

(2)    Justice Esther Ota – Nigerian-born Sey has cut her teeth in The Gambia, rising up from a Magistrate to be a justice of the Appeals Court (download what could be an autobiographical (!) PDF, HERE).  She is one of the Commonwealth judges, that group who work on a circuit, funded by the Commonwealth to get rid of the backlog in needy countries. 

(3)    Justice Mary Sey – hailing from Sierra Leone, Sey has made a name for herself as a fearless fighter of corruption (see some google results HERE).  She is also here for two years with the Commonwealth, scheduled to finish her term (with Ota) in two years which, in Swaziland, is relatively secure tenure (HERE).

It will be interesting to see whether they follow Agyemang’s fearless path, or adopt the stance of the Supreme Court and ensure they are kept on by government on a pay that is simply unjustifiable. 

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.