MBABANE – Chief Justice Bheki Maphalala says the prime minister and other politicians must stay away from the Anti-Corruption Commission (ACC).
During a press conference held yesterday, Maphalala rejected claims attributed to Prime Minister Russell Dlamini that the Judiciary was responsible for the continued prevalence of corruption because the courts refused to issue warrants of arrest in corruption cases. He said such claims were untrue and instead argued that political interference in the work of the ACC was undermining the country’s fight against corruption.
Maphalala said he had convened the press conference in his capacity as chief justice to respond to issues that had been raised by the prime minister in Parliament. He said failing to address those remarks would mislead both the country and the international community.
According to Maphalala, the prime minister had been asked by Members of Parliament why corruption continued despite the existence of institutions established to combat it. He said the prime minister responded by suggesting that the chief justice and the courts were unwilling to issue warrants of arrest.
Maphalala said the allegation was false. He stressed that corruption remained a serious issue in Eswatini and reminded the public that His Majesty King Mswati III had repeatedly spoken about the need to combat corruption during the official opening of Parliament. He also referred to concerns raised by members of the public during Sibaya, where corruption was identified as an issue that continued to affect the country.
He said, given those concerns, the Judiciary could not treat corruption lightly.
Maphalala explained that the courts were established by the Constitution, which clearly defines how they should function. He said judges perform their duties in accordance with the Constitution and the law, rather than according to political expectations.
Instead of blaming the courts, Maphalala said the real obstacle to fighting corruption was political interference in the operations of the ACC.
He referred to legislation enacted by Parliament and assented to by the King in 2006 establishing the ACC as the lawful institution responsible for dealing with corruption matters.
According to Maphalala, the law provides that the commissioners are appointed by the King on the advice of the Judicial Service Commission (JSC).
He said this meant the ACC was an institution under the authority of the King rather than government.
He added that the commission reports to the King and not to Cabinet.
Maphalala further stated that the law expressly requires the ACC to carry out its functions independently and without being subject to the direction or control of any person.
He said politicians should, therefore, not interfere with the commission’s work or attempt to direct its activities.
According to Maphalala, the ACC does not require political support in order to perform its statutory functions because the law guarantees its independence.
He said alleged interference by the prime minister in directing or controlling the commission would be unlawful because it would undermine that independence.
Maphalala also referred to reports that the prime minister had established a task team to work with him in support of the ACC.
He said the law did not provide for such an arrangement and nowhere authorised the prime minister to control the commission.
He maintained that one of the reasons corruption continues is because the ACC is not operating independently due to excessive political interference.
Maphalala said the requirement for the commission to function independently exists to prevent it from being used for political purposes.
He warned that if politicians controlled the ACC, they could direct it to investigate or arrest political opponents while protecting others.
For that reason, he said the law deliberately excluded politicians from the operational functions of the commission to preserve its independence.
Maphalala outlined the legal process followed in corruption investigations.
He explained that where the ACC suspects corruption, it must conduct its own investigations. If evidence is found, the matter is referred to the director of public prosecutions (DPP), who prepares the necessary application for presentation before the court. That application asks the court to issue a warrant of arrest.
He said the court’s responsibility is to examine whether sufficient evidence exists to justify issuing the warrant.
Maphalala emphasised that courts are not ‘rubber stamps’ that automatically approve every application placed before them.
He said a warrant of arrest can only be issued once the court is satisfied that evidence exists linking the person or entity concerned to the alleged offence.
According to Maphalala, the suggestion that courts should automatically issue warrants whenever an application is filed would undermine the judicial process.
He questioned how many people could be arrested without evidence if courts simply approved every application brought before them.
He reiterated that evidence of an offence was an essential legal requirement before a warrant could be issued.
Maphalala said judges understand their constitutional responsibilities and determine every case by assessing whether the available evidence supports the allegations before the court.
If no evidence exists, he said, the case cannot succeed.
He disclosed that the courts had previously received corruption-related matters from the ACC.
After considering those cases, he said the courts found that the evidence presented was insufficient and dismissed them on that basis.
Maphalala said those decisions were later followed by allegations that warrants had been refused because the courts were corrupt.
He said the Judiciary was surprised by those accusations, maintaining that judges simply apply the law and cannot act outside the constitutional framework governing their work.
“According to what the prime minister says, he means the courts are not doing their job. Courts are established by the Constitution, which points out how courts function. Let me point out that what exacerbates corruption in the country is political interference in duties of the Anti-Corruption Commission (ACC),” said Maphalala.
Maphalala noted that the Constitution, in whose drafting he said he had participated, protects fundamental rights and human rights.
He said those constitutional protections prevent people from being imprisoned without evidence showing they committed the offences of which they are suspected.
He maintained that respecting those rights was part of the Judiciary’s constitutional obligation.
Maphalala said, as chief justice, he would fail in his responsibilities if he did not publicly state that politicians should not involve themselves in the work of the ACC.
He said the law does not assign politicians any operational role within the commission and that it should be allowed to perform its mandate without interference.
According to Maphalala, the ACC would only succeed if it operated independently as required by law.
He also said the prime minister should ensure that any actions taken regarding the commission were authorised by legislation. Maphalala stated that neither the prime minister nor the minister for Justice and Constitutional Affairs formed part of the ACC’s operational structure.
He explained that the justice minister’s responsibility was limited to ensuring the commission received the budget necessary to carry out its work.
Operational decisions, investigations and other functions of the commission, he said, should remain free from political involvement.
Maphalala concluded by repeating that claims suggesting the courts were responsible for corruption because they failed to issue warrants were incorrect.
He maintained that political interference in the ACC’s work was the real challenge and called for the commission to be allowed to investigate matters independently before presenting evidence to the courts. He said he considered it his duty to make those remarks in defence of the Judiciary.
