CONSTITUTIONALITY OF DPP IN PM’S TASK TEAM QUESTIONED

MBABANE – Prime Minister (PM) Russell Mmiso Dlamini might have rightfully appointed a task team to assist in the fight against corruption, but its composition has come into question.

This time around, the question relates to the inclusion of the acting Director of Public Prosecutions (DPP), Lomvula Hlophe. While the team was appointed in February last year, there has been an ongoing debate about whether her inclusion in the team does not breach the provisions of the Constitution of 2005, which details how her office is supposed to conduct its operations.

The tripartite committee, known as the Anti-corruption Task Team was appointed by the PM in February last year to enhance the fight against corruption. Besides the acting DPP, it comprises the national commissioner (NATCOM) of police and the acting commissioner of the Anti-Corruption Commission (ACC). Some of those who are questioning Hlophe’s inclusion are of the view that by virtue of having been appointed by the PM, it now means that she reports to him, which raises the question of the constitutional mandate of her office being independence.

The Constitution, in Section 62, stipulates that there shall be a DPP, whose office shall be a public office.
It is stated that such an individual shall be appointed by the King on the advice of the Judicial Service Commission (JSC). It further states a person shall not qualify to be appointed director unless that person qualifies for appointment as a judge of the superior courts.

Power

Such an individual, according to the Constitution, shall have power in any case in which the director considers it proper to do so, to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person against the laws of the Kingdom of Eswatini.

The individual is also expected to take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority. Also, such an individual has the power to discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the director or any other person or authority and perform such other functions as may be prescribed.

The Constitution makes it clear that in the exercise of his or her power, the DPP shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process. It also makes it clear that the DPP shall be independent and not be subject to the direction or control of any other person or authority.

The critics have argued that with the DPP involved in the task team that reports directly to the PM, there is a danger that the whole exercise could turn out to be influenced, leading to lack of transparency in terms of arrests and prosecutions.

According to the critics, the task team could end up being similar to that which was appointed by late former Prime Minister Barnabas way back in 2010. An opinion was sought from Human Rights Lawyer Sipho Gumede on the issue and he stated that while it was a good decision by the PM to set up the task team, including the acting DPP was not.

Wrong

“It is wrong for her to be in the team, because her office is the one that makes the decision whether a person has to be persecuted or not. Removing her will ensure that there is transparency as provided for in the Constitution. Right now chances are high that her transparency can be compromised,” said Gumedze. The task team formed by the former PM was criticised by many, who argued that it was being used to target his enemies, rather than rooting out corruption.

Also, there was an argument that the task team did not produce any tangible results. Meanwhile, the establishment of the current team follows His Majesty King Mswati III’s directive on tackling corruption in the country, saying those found responsible for any corrupt practices should be held accountable. His Majesty said corruption stood in the way of progress in the nation’s plans, programmes and projects for development.

He was speaking during the official opening of the 12th Parliament in February last year. The King said emaSwati made their voices heard during Sibaya (People’s Parliament) expressing frustration with the lack of tangible progress in addressing this issue. He went on to encourage government to prioritise taking action on this matter, saying it was high time, they witnessed judgments passed on individuals involved in corruption, holding them accountable for their actions.

When the team was launched a few days later, Attorney General (AG), Sifiso Khumalo said it was nothing new, as a similar body was once established during the term of the late Barnabas. Khumalo said even at that time, the team directly reported to the PM. It was announced that the team will report to the PM and will work with the Minister for Justice and Constitutional Affairs, Prince Simelane.

During the Sibaya, there were a number of submissions from emaSwati, who voiced their frustrations on people getting away with corrupt acts. They suggested that those found responsible for any corrupt practices should be held accountable. Speaking at the same launch, the PM said the launch of the task team was a positive step towards promoting transparency, accountability and good governance in line with the policy direction that was so clearly articulated by His Majesty during the official opening of Parliament.

Corruption

In the same vein, the PM said government had committed itself to having zero tolerance for corruption in all sectors of society. He said the team reflected on government’s commitment to combating corruption and ensuring the efficient use of public resources for the betterment of society.

“The task team will be responsible for investigating corruption allegations, prosecuting cases, implementing preventive measures and strengthening legal frameworks to address corruption effectively. The team will immediately deal with corruption cases that have been reported and ensure that the offenders are brought to book with immediate effect just as it was commanded by the King in his address to Parliament. Cases must be dealt with to finality and not be dropped mid-process,” he said.

Adding, the PM highlighted that corruption was caused by greed for money, poverty, lack of values and ethics, high level of bureaucracy and inefficient administrative structures, which must also be dealt with concurrently. 
He stated that the DPP was expected to prioritise corruption cases henceforth.

In terms of background, Hlophe was appointed as the acting DPP in October 2022 by His Majesty King Mswati III.
Before that, she was a Principal Crown Counsel in the Office of the DPP before being elevated to the position of under secretary in the Ministry of Natural Resources.

As Crown Counsel, Lomvula was the head of the Sexual Offences and Domestic Violence Unit. She was also responsible for cases which touched on human trafficking and people’s smuggling. She is the daughter of King Sobhuza II’s daughter, Princess Dutoit. This means she is a niece to King Mswati III. Her father is the late former Statesman, Abednego Kuseni Hlophe, popularly known as AK.

Lomvula is known for her no-nonsense approach when it comes to issues of gender-based violence and children. When the Sexual Offences and Domestic Violence (SODV) Act 15/2018 was being piloted, she was the one sensitising the public and legislators about it.

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