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RIGHT TO LEGAL REPRESENTATION UNDER SWAZI LAW AND CUSTOM

22/06/2017 01:25:00 By Vusi Kunene

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ARTICLE 7 of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard.

This comprises…the right to defence, including the right to be defended by counsel of his choice.” It is so unfortunate that I have not seen a corresponding section in our Constitution. I am not sure whether it was omitted by mistake or by design, but the latter holds true in my opinion.

This may be one of the disadvantages of having a dual legal system because one is never certain of what will happen when he or she is to appear before some tribunals, especially the Swazi Law and Custom tribunals. The fact that the customs themselves are not the same in different parts of the country is a problem on its own. So it is not clear that if I perform a certain act which invites certain status in the northern part of the country, that status will be the same in the southern part of the country.

Let me come back to my topic and justify why I think it was by design that we do not have a similar provision in our Constitution to the Article 7 of the African Charter. If we have had a corresponding section, then the provision that there should be no legal representation of litigants in the Swazi National Courts would be held unconstitutional. Even in the chief’s courts in the different umphakatsi, people would be allowed to be represented. The representation for me would not be by a person who has studied law but it must be of a competent person.

I have to recommend our Swazi courts when it comes to legal representation. I have not heard of an instance where they had denied a person to be represented when that person desired to be represented. I also have seen our courts (i.e. Magistrates Courts and High Court) inform the people that appear before it on their right to legal representation.

I have also heard some judicial officers advising some people that the case they are facing is serious and they advise that that person try and get a legal representative. That shows that these courts are concerned with having a fair trial.

My main worry is with the chiefs courts. I have not seen any provision or practice that allows a person to be represented in these courts. Or if representation is not allowed that the person can ask that his or her case be tried in a court that allows representation. This in my opinion denies the people their right.

The chiefs courts issue judgments and rulings that affect the people’s rights and even their properties sometimes. Some people are found guilty and fined exorbitant fines sometimes. Think of a fine of 10 cattle and you will see the power those courts have. In my opinion this means the chiefs court is even superior to that of a principal magistrate court.

This I say because the maximum jurisdiction of a principal magistrate is E30 000 (Emalangeni thirty thousand) in civil cases and half of that in criminal cases. Currently a cow costs on a minimum E4 000 (Emalangeni four thousand) and 10 cows then amounts to E40 000 (Emalangeni forty thousand).

One other problem is the uncertainty on which court will try me if I have committed a certain act. If I commit a certain act in the district of Manzini, I know that the matter will be tried at the Manzini Magistrate Court or the High Court. With Swazi Law and Custom it is the victim that will decide where he or she wants to lay the charge.

He or she may decide that the charge is laid at his or her umphakatsi or it be tried at my own umphakatsi. If a third person is also involved then the more confusing it will be. Surely, this is undesirable and people should be certain on what will happen to their cases.

Now here is a person that was born in one of our country’s suburban areas grew all his or her life there and has not been to a chiefs court or umphakatsi.
This person then commits an offence. An example is that the boy who grew up in town then commits adultery with a wife who is from the rural areas and is married there. The wife’s husband then decides to take the matter to the chiefs courts as our high court has pronounced itself on such cases.

My opinion is that the man from town will lose the case even before he stands the trial. This person will not know where to even sit when he comes for the trial. He may even sit where the chief only sits because he is not aware. He will not know how to address the libandla.

My opinion is that legal representation would come in handy in such an instance. Unfortunately this person cannot claim same as we do not have such a provision in the constitution yet if we had something like Article 7 of the African Charter thing would be different.
This is very undesirable in my opinion and this calls for our leaders to address.

We may love our culture and traditions but this must be fair to all. May be it is time that a curriculum on Swazi Law and Custom is introduced in our high schools or colleges. Parliament may also look into this and promulgate a law that will ameliorate the problems brought about by this.