Law enforcement agencies in Eswatini, including the Anti-Corruption Commission (ACC) and police, must be commended for their commitment to arresting and prosecuting individuals suspected of corruption.
However, a disquieting trend has surfaced, which is an inclination to conduct arrests based on what they describe as ‘prima facie’ evidence.
Based on my limited knowledge, prima facie evidence refers to evidence that is sufficient to establish a fact unless disproved, but in many cases, it falls short of the overwhelming proof required to secure a conviction in the courts. I must say that the effect of such an approach is twofold. Firstly, while the public may applaud law enforcement for being proactive, arrests that do not culminate in convictions serve little more than public spectacle. Brothers and sisters, the goal, unequivocally, must be to secure convictions. I must point out here that an arrest without subsequent conviction achieves nothing in terms of justice or deterrence.
Investigators and prosecutors in Eswatini have expressed frustration regarding being pressured to arrest suspects without adequate evidence. This is a practice which results in protracted and inconclusive court cases. In fact, there is a backlog of over 20 cases involving prominent current and former politicians that have lingered unresolved since 2009. The blame is often redirected between the ACC and the Directorate of Public Prosecutions (DPP), each citing the other’s limitations. The fundamental principle that a person is innocent until proven guilty is at the heart of any fair justice system. Arresting an individual does not equate to proving guilt. Instead, it merely initiates a process that should only proceed when there is substantial evidence to support a conviction. It is crucial for law enforcement agents to remember that every arrest without concrete supporting evidence is not only a miscarriage of justice but also a significant financial burden on government resources. Eswatini, like many nations, has witnessed an alarming number of unlawful arrests. These cases, often resulting in state liability for damages, reflect a worrying trend and have become a source of concern. The mounting legal bills that government must settle for wrongful arrests are a direct consequence of inadequate investigations and hasty decisions by law enforcers.
Arrests should only follow when there is clear evidence indicating a crime has been committed and is compelling enough to convince a judge. Using arrests to embarrass individuals constitutes a violation of their constitutional right to dignity. Law enforcement officers must uphold this principle and pursue convictions only when they are firmly supported by the facts, thus preserving justice and public funds.
Senior prosecutors, such as Israel Magagula, the Deputy DPP, have not sufficiently addressed the shortfall in winnable cases.
He made a submission during the validation meeting for the draft National Anti-Corruption Policy at SibaneSami Hotel on Wednesday. It is well-known among stakeholders that many files submitted for prosecution lack the concrete evidence requisite for conviction beyond reasonable doubt.
Cop weaponisation
A second, equally troubling observation concerns the weaponisation of law enforcement by political elites in Eswatini. Over a decade ago, it was common for certain politicians at Hospital Hill to influence authorities to target rivals or individuals with whom they had personal grievances. We were here and we witnessed all of these shady things. It is unfortunate that this politicisation of anti-corruption measures undermines credibility, breeds public cynicism and runs counter to the rule of law. When the fight against corruption is perceived as a tool for settling scores or currying favour, rather than genuine reform, its legitimacy is fatally compromised.
Secure conviction
Securing a conviction for corruption demands a rigorous, multi-stage process that extends far beyond a mere arrest.
It is inconceivable and a financial drain to the taxpayer when multi-stage processes are bypassed for a public spectacle.
An expert in the fight against corruption advised me that the following processes must be fulfilled if we are to be serious with securing convictions –
Thorough investigations - Comprehensive and impartial investigations must be conducted, gathering all relevant documentary, testimonial and forensic evidence. It is very unfortunate that the professionals in the civil service perform better than the forensics that are hired to conduct investigations in the country.
Prosecutorial review - Prosecutors must review the evidence, test its sufficiency and prepare for adversarial challenge in court.
Court proceedings - Trials adhere to strict evidentiary standards. The prosecution must prove guilt beyond reasonable doubt, a high threshold designed to ensure fairness.
Judgment and sentencing - Only when the evidence is overwhelming, credible and unambiguous will a conviction and appropriate sentencing be secured.
My personal research has shown that countries such as South Africa have wrestled with similar issues as the Special Investigating Unit and the Hawks have arrested hundreds of suspects in high-profile corruption cases, yet conviction rates remain worryingly low due to weak evidence and procedural lapses (Corruption Watch, 2022). In the Philippines, the spate of arrests following the anti-corruption drive under the Office of the Ombudsman similarly resulted in scant convictions, largely due to poorly prepared cases (Quah, 2011). When law enforcement prioritises arrests over convictions or targets individuals based on political motives, severe consequences ensue such as the following –
Legal and financial repercussions - Taxpayers are burdened with hefty settlements for lawsuits arising from unlawful arrests. In Eswatini, payouts for such cases now exceed E100 million, a figure that represents a needless drain on scarce public resources.
Public distrust - Perceptions of selective justice or incompetent investigations fuel cynicism and diminish public confidence in institutions.
Rule of law - The principle of equality before the law is subverted when investigations are not impartial or evidence-based.
Punish negligent law enforcers
In progressive jurisdictions such as the United Kingdom and Canada, law enforcement personnel who are found negligent in effecting arrests or are complicit in malicious prosecution face disciplinary action, including suspension or dismissal (Home Office, 2019; Government of Canada, 2021).
Such accountability mechanisms are largely absent in Eswatini, contributing to a culture of impunity.
Corruption still a concern
Corruption exerts a profoundly corrosive effect on society and the economy. It distorts markets, deters investment and reduces the quality and reach of public services.
I must mention that the most pronounced victims of corruption are ordinary citizens, the working poor, rural communities and marginalised groups who depend heavily on the honest and effective delivery of public goods. A concerted and principled fight against corruption yields substantial dividends, which include enhanced governance, transparency and accountability in public office, which restore trust and legitimacy. Where the rule of law prevails and corruption is contained, investors are more likely to enter markets, and equitable distribution of resources promotes social stability.
There are also benefits attached to fighting corruption, such as international reputation wherein countries perceived as less corrupt attract more development aid and foreign direct investment.
What is corruption?
Corruption, widely recognised as a pervasive malaise, undermines governance, disrupts economic development and erodes public trust. Its shadow can be discerned across societies and institutions, with varying manifestations from petty bribery to grand misappropriation of public funds. In the Kingdom of Eswatini, as in many other jurisdictions, the fight against corruption is ongoing, complex and at times, contentious. Corruption is conventionally defined as the abuse of entrusted power for private gain (Transparency International, 2023). The United Nations Convention against Corruption (UNCAC) elaborates this further, encompassing offences such as bribery, embezzlement, illicit enrichment and obstruction of justice (United Nations, 2003). While the manifestations differ, the essential element remains a betrayal of public or organisational trust for personal benefit. Corruption is not limited to the public sector but pervades all layers of society, including private companies and civil society organisations. The typologies of corruption are equally significant, I must say.
Petty corruption
Petty corruption refers to small-scale abuses, often involving lower-level officials, while grand corruption implicates high-ranking public figures, often with devastating fiscal and developmental consequences (Rose-Ackerman & Palifka, 2016). Systemic corruption, meanwhile, is woven into the very fabric of governmental operations, rendering reform far more challenging. In conclusion, I submit, as a citizen, that law enforcement agencies must prioritise thorough investigations and the collection of irrefutable evidence.
Arrests should never serve as mere public demonstrations, but they must result from meticulous enquiry aimed at securing successful prosecutions. As a result, anti-corruption initiatives must remain impartial and free from political interference. This requires robust oversight mechanisms, the establishment of independent investigative units and statutory protections for whistle-blowers and investigators. Law enforcement officers and prosecutors who execute negligent arrests or perpetrate malicious prosecutions must be held accountable. It is essential to implement clear disciplinary frameworks, as practiced in jurisdictions such as the United Kingdom and Canada. The public must be made aware that, while arrests are highly visible, convictions are the true measure of progress. Civil society should persist in monitoring, reporting and critiquing both the successes and shortcomings of the anti-corruption campaign. Periodic reviews of unresolved or delayed cases are imperative as the DPP and ACC should regularly publish updates on the status of cases, providing explanations for any delays, withdrawals or acquittals. Enhanced transparency will deter manipulation and foster public confidence. For emphasis, the campaign against corruption should never be exploited for personal advancement or used to settle vendettas. It must rise above individual ambitions, remaining firmly focused on restoring public trust and upholding justice for all.
Corruption remains a pervasive force undermining democratic ideals and economic prospects. Therefore, the challenges faced in Eswatini, ranging from arrests without subsequent convictions, political interference in investigations, to the lack of accountability for negligent law enforcement, are not unique, yet they are entirely surmountable.
I urge my fellow citizens to ensure that the fight against corruption is evidence-based, impartial and rooted in a commitment to uphold the law rather than personalise its application. Only by embracing these principles can Eswatini make meaningful progress towards eradicating corruption and establishing a just and prosperous society for all.
I thank you.
Investigators and prosecutors in Eswatini have expressed frustration regarding being pressured to arrest suspects without adequate evidence.