AG TIMOTHY ENJOYS JUDGE’S PRIVILEGES

MBABANE – In terms of removal from office, it appears the auditor general (AG) enjoys privileges of a judge of a superior court.

It is provided in the Constitution of the Kingdom of Swaziland (now Eswatini) that Section 158, which applies to judges, must be considered when handling the fate of the AG.
Section 207 establishes the Office of the Auditor General and also refers to Section 158 of the Constitution, which provides for the privileges of the chief justice (CJ) and justices of the Supreme Court, which they share with the auditor general.

The section reads: “The auditor general may only be removed from office on the same grounds and in the like manner as a judge of the superior court in terms of Section 158 subject to the substitution of the chief justice and the Judicial Service Commission with the chairman and the Civil Service Commission respectively.” Section 158 is titled “Removal of justices of superior courts.” It is a long process, which involve the King. Some emaSwati feared the job for the Auditor General, Timothy Matsebula, could be on the line after Prime Minister, Russell Mmiso Dlamini questioned the competency of his office during a breakfast meeting with editors held at Mountain View in Mbabane on June 6, 2024. Civil society felt the prime minister’s statement would scare investor and donor confidence, but Sifiso Mashamphu Khumalo, the Attorney General, advised Parliament that the prime minister was expressing his personal opinion. In fact, some analysts told this publication that the auditor general enjoys more privileges than the prime minister and Cabinet.

Dissolve

Regarding the Cabinet, the Constitution states that the King shall dissolve it (Cabinet) where three-fifths of all members of the House pass a resolution of no confidence. This is in accordance with Section 68 (5) which reads: “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.” “You can see clearly here. You do not need to go to a school of constitutional law to understand this provision, but it is a matter of understanding English. MPs can cause the dissolution of Cabinet,” the political analyst said, electing to address this issue on condition of anonymity, as he is close to certain structures within the public service.

The same thing applies to the prime minister whose removal from office can also be facilitated by Parliament. “After a resolution of no confidence in the prime minister is passed by at least two-thirds majority of all members of the House, the King removes the prime minister,” it is stated in Section 68 (1) (e). On the other hand, in the disciplinary case of the auditor general, the titles of chief justice and Judicial Service Commission (JSC) which are spelt out in Section 158 ought to be removed. They shall be substituted for “chairman and the Civil Service Commission (CSC) respectively.”

It effectively means that the CJ and JSC cannot facilitate the adjudication of the AG’s case, but those powers are vested in the chairman and CSC. It has been learnt that the section that applies to both judges and AG outlines constitutional procedures for determining their fate. In the same way CJ or JSC would do, the CSC shall enquire into the matter and recommend to the King whether the AG ought to be removed from office. His Majesty also reserves the right to suspend the auditor general in the same way he would have done to the CJ or judge of the Supreme Court.  The inquiry into the conduct of the AG shall take not more than three months.

Surcharge

The Times SUNDAY can reveal that the auditor general has powers, not just to raise audit queries but also reserves the right to ‘surcharge’ a person responsible for incurring or authorising expenditure or loss. Surcharge in the context of auditing means to charge someone an extra amount for irregularities. It is also stated that the AG shall, in the exercise of the powers of his or her office, be independent and “not be subject to the direction or control of any person or authority.” A legal source said it is unconstitutional to subject the AG to any direction or control. The source who handles civil matters at the High Court said it is also unconstitutional for any authority to dictate terms on how the AG should perform the functions of his office. Reads Section 207 (8) reads: “The auditor general shall, in the performance of the functions under this Constitution or any other law, have power to disallow any item of expenditure, which is contrary to law and to surcharge the person responsible for incurring or authorising that expenditure or loss.”

Corruption

The auditor general may assist the Commission on Human Rights and Public Administration, which also serves as the Integrity Commission, during its investigation of instances of suspected or alleged corruption. Reads Section 164 (2) (e): “The Commission may investigate any matter referred to in subsection (1) in any of the following circumstances - investigate instances of alleged or suspected corruption and the misappropriation of public moneys or property by officials and to take or recommend appropriate steps, including reports to the attorney general or the director of Public Prosecutions or the auditor general.”

AG can interrogate

The Audit Act of 2005 (Act 4 of 2005), on the other hand, can also interrogate any person. Reads Section 10 (2): “The auditor general may administer an oath or accept an affirmation from and interrogate under oath or upon affirmation any person whom he thinks fit to interrogate, in connection with the receipt, custody, payment or issue of property, money, stamps, securities, equipment, stores, trust money, trust property and other assets, to which the provision of this Act and the Constitution apply.” The provisions of the law continues in the same paragraph as follows -“and in connection with any other matter in so far as it may be necessary for the due performance and exercise of the powers and duties conferred or imposed upon the auditor general by this Act and the auditor general shall not be required to reveal the identity of the person referred to in this paragraph.”

A top Mbabane based attorney said: “His removal (referring to AG) is similar to that of removal of Supreme Court Justices, save that in his case the mandate is with the chairman of the Civil Service Commission as opposed to the JSC.” It was a challenge last night to get learned friends who can openly address the issue, and they all wanted to analyse it from an anonymity point of view. Sipho Gumedze, a Senior Human Rights and Constitutional Lawyer, said the process to remove the judges is ‘almost’ the same with that of the auditor general in far as he understood the process. He said an impeachment may sometimes be necessary in the removal of judges from office.

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