APPEALS FROM THE TRADITIONAL COURTS

Human Rights Watch has released its World Report 2013.  Unfortunately, it does not cover Swaziland but it does contain some essays pertinent to Swaziland today.  The essays cover:

(1) Traditional values and human rights (click HERE);

(2) Corporations and human rights (click HERE); and

(3) The environment, health and children's rights (click HERE).

The piece on traditional values references a case in Botswana where the High Court overruled a customary law granting inheritance of the family home to the last born male heir.  The elder sisters challenged the law, which had been applied by a customary court, on the basis that it violated their constitutional right to equality before the law - and won (to read the full judgment click HERE).  To date, as far as I am aware, no one has challenged a decision of any Swazi Court at the High Court, partly I think because of the lengthy and intimidating appeals process.  According to the Swazi Courts Act 1951, civil appeals must go first to the Swazi Court of Appeal, then the Higher Swazi Court of Appeal and then to the High Court.  This is a pretty long road for a person dissatisfied with the decision of the local Swazi Court President.  But this lengthy process ignores, I think, the effect of Section 35(1) of the 2005 Constitution which states:

"Where a person alleges that any of the...provisions of this [Bill of Rights] has been, is being, or is likely to be contravened in relation to that person or a group of which that person is a member...that person (or that other person) may apply to the High Court for redress."

This should mean that a person can apply directly to the High Court from a decision of a Swazi Court contravening (as with the Botswanan case) a provision of the Bill of Rights. 

HIV-Testing for Police Recruits

There was a report in the paper where two wannabe police recruits allege that they were denied entrance to the force because they refused to take a CD4 count (a test related to HIV-AIDS) (HERE). Nominally, this test is supposed to be strictly optional. It seems that the police force has admitted that this was the reason that they were denied recruitment. This obviously throws into doubt the claim that the section is ‘optional’.

This is stunning discrimination. What legitimate public purpose is served by the police force knowing a recruit’s HIV- or CD4-status? The police PRO claims that it is necessary to assess fitness. Isn’t that what a fitness test is for?

But does this violate the constitution?

I can think of at least four sections it potentially violates: s 18 protection from degrading treatment; s 20 equality before the law (protection from discrimination); s 22 protection from arbitrary search; and s 32 rights of workers.

The problem with s 20 is that it does not specifically protect from discrimination on grounds of health status, although this does not necessarily mean that a claim could not be made under this section. The problem with s 32 is that it does not protect (potential) employees from ‘unfair treatment’ but instead requires parliament to enact laws to this effect. (Does anyone know what this type of constitutional clause is called?)

The shocking thing for me has been the lack of activity on this matter from attorneys or the Law Society. Or are they waiting around for an appearance fee from an NGO? And before you accuse me of cynicism, bear in mind that the Law Society has actively prevented the establishment of legal clinics (community law centres) in Swaziland.