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. 

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. 

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.