THE MESS IN THE JUDICIARY

As Minister of Housing and Urban Development, Prince Simelane attracted a lot of criticism when he urged the country’s security forces to `fight fire with fire.’

This was in May 2021, at the height of protests that began after the death of Thabani Nkomonye, who died in a car accident while allegedly being pursued by traffic police officers. Protesters initially demanded justice for Thabani, saying the deaths of citizens at the hands of the police were becoming a common occurrence and should stop. Later, this evolved into marches to the various Tinkhundla centres by emaSwati who delivered petitions to their Members of Parliament (MPs).

These protests eventually led to the deadly unrest that saw the deaths of dozens of civilians, including minors, and some security officers. In his statement, Prince Simelane had used the siSwati idiom, “Umlilo ucishwa ngalomunye umlilo” (to stop a fire, you have to light another one).This statement was largely perceived as inflammatory and encouraging violence instead of being conciliatory.After the 2023 national elections, the prince was appointed Minister of Justice and Constitutional Affairs. This time around, he seems to have veiled himself in a different cloak. He has practically stated that he does not want trouble.

Prince Simelane said this a week ago, while responding to a `question for oral answer’ posed by Mbabane East MP Welcome Dlamini.The MP had asked the minister if he had been able to communicate with, or write to Chief Justice (CJ) Bheki Maphalala to seek guidance and clarity on some of the concerns raised, not only by MPs but also the Law Society of Eswatini, in so far as proper functioning of the Judiciary is concerned.In his response, the minister drew the attention of the House of Assembly to Section 141 of the National Constitution.

Subsection 141 (1) reads: “In exercise of the judicial power of Swaziland, the Judiciary, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to this Constitution, and shall not be subject to the control or direction of any person or authority.”Prince Simelane said the MP was asking him to do something he had no jurisdiction over.He also reminded MPs about a public statement issued by the Judiciary some time back, reminding him not to overstep his boundaries. The minister is correct.

He has embarked on a path that will see the principle of the separation of powers being respected. This principle requires that legislative, executive and judicial functions of government be separate and independent of each other.According to www.britannica.com, this prevents arbitrary decisions and allows each arm of government to veto acts of another arm, to prevent any one branch from having too much power. How can we forget that in the past, interference in matters of the Judiciary had become a norm in Eswatini, a situation that embarrassed the country internationally and led to a breakdown in the rule of law?

The tenure of the late Barnabas Sibusiso Dlamini was marred by various such incidents, not least of which was his defiance, as Prime Minister, of two judgements of the then Court of Appeal. This was on November 28, 2002 when the former PM said his government would not recognise the two judgements, one of which had impugned the denial of bail to certain suspects. The other judgement ordered the arrest of the then Commissioner of Police for contempt of court, after the police prevented people evicted from Macetjeni and KaMkhweli in October 2000 from returning to their homes.

This defiance of the judgements resulted in judges of the Court of Appeal resigning en masse. It also attracted the attention and condemnation of various international bodies, including the United Nations Human Rights Commission (UNHRC).Confusion over the separation of powers was also witnessed in 2012, when the House of Assembly passed a vote of no confidence in the Cabinet of Ministers. The Executive arm of government was once again defiant, resulting in yet another blemish to the rule of law in Eswatini. There have been other instances I cannot detail here because of space constraints.What many emaSwati would agree on is that we do not wish to return to the era of lawlessness, when court rulings did not matter and the separation of powers in the government hierarchy were rendered obsolete.It is just unfortunate that the Minister of Justice, though legally correct, has decided to wash his hands of matters of the Judiciary at a time when this arm of government is in a sordid mess.

There are challenges within the Anti-Corruption Commission (ACC), where allegations of infighting and bribery have emerged.The Commission has also not been quite impressive in investigating cases of alleged corruption and bringing culprits to book.The nation is concerned that only the small fry seem to face the consequences of their actions while the big fish are allowed to roam free and continue with their corrupt activities.Reports that information about investigations is being leaked willy-nilly are also disappointing and have the potential to derail the ACC from its mandate. 

That said, the ongoing Judicial Commission of Inquiry has also heard various allegations being made against some officers of the Master of the High Court department, which forms part of the Judiciary.One officer allegedly demanded E80 000 as a bribe from one of the beneficiaries of an estate.These are yet to be tested against other available evidence but the mere fact that serious allegations are being made is cause for grave concern.Early this year, establishment of the Judicial Commission itself was met with resistance, particularly from the Law Society of Eswatini, when it was alleged the Chief Justice did not have power, under the laws of the country, to establish a Commission of Inquiry.

The CJ had said he was empowered to do so by Section 139 (5) of the Constitution of the Kingdom of Eswatini Act, 2005.With these and other challenges engulfing the Judiciary, where do we go for the solution while adhering to the principle of the separation of powers, which the Minister of Justice is determined to respect? That is the million Emalangeni question.

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