It is fundamental to the rule of law, to the right to a fair trial, the right to liberty and security of person, and to the right to effective remedy for violations of human rights, that individual judges and the judiciary as a whole must be independent and impartial.[1] The requirement that courts and other tribunals be effective, independent and impartial “is an absolute right that is not subject to any exception.” [2]
For the judiciary as an institution, the requirement of independence refers in particular to: the procedure and qualifications for the appointment of judges; guarantees relating to security of tenure until a mandatory age of retirement or expiry of term of office; the conditions governing promotion, transfer, suspension and cessation of their functions; and the degree to which the executive and legislative branches of power do or do not in practice interfere with judges and judicial decision-making.[3]
In contrast to the 1973 Decree, which vested all judicial as well as executive and legislative powers in the King, the 2005 Constitution vests all judicial power in the judiciary.[4]
While the Constitution enshrines the guarantee of the independence of the judiciary (both in the exercise of judicial and administrative functions)[5], the executive has not respected the principle in practice.
In late 2002, a judicial crisis occurred when the government refused to honour two court orders and the Prime Minister sharply and publicly criticized the Court of Appeal.[6] In response, all members of the Court of Appeal resigned, and several High Court judges refused to accept pleadings filed by the government. The government attempted to resolve the crisis through a mix of threats and bribes.[7] The crisis only abated in 2004, when a newly appointed Prime minister apologized for the statement of his predecessor and promised to abide by future court rulings.[8]
Attacks on the independence of the judiciary have continued, leading to another crisis in 2011. The Chief Justice issued a directive ordering the non-registration of all lawsuits that challenge the King “directly or indirectly”.[9] This directive served to effectively bar the filing of any lawsuits against corporations in which the King owns shares or has interests. In addition, the King, on the advice of the Judicial Service Commission, removed Justice Thomas Masuku from the bench for, among other things, allegedly criticizing the him (see below). The Law Society of Swaziland launched a boycott of the courts to protest the lack of judicial independence.[10] This boycott lasted four months and seriously hampered the delivery of justice in the country.
In 2011, a complaint was filed with the African Commission by the Law Society, accusing Chief Justice Ramodibedi of systematically undermining the independence of the judiciary related among other things to the Chief Justice’s dismissal of complaints by the Law Society against himself. The government has yet to file in the matter, which remains pending before the Commission.
In 2005, the African Commission on Human and People’s Rights, in relation to the law prior to the entry into force of the Constitution, had taken the view that vesting judicial power in the King, ousting the jurisdiction of the courts on certain matters and allowing the Head of State to dismiss judges was in violation of the right to fair trial and the obligation to respect the independence of the courts in the African Charter.[11] The Commission recommended among other things bringing the law in conformity with the provisions of the Charter. In 2012, the Commission expressed alarm at the failure of Swaziland to implement its 2005 decision.[12]
Further, the Chief Justice has issued a practice directive entitling him, together with the Registrar, to allocate cases in the High Court. This directive has abrogated the fair processes hitherto followed in allocation of cases and allows the Chief Justice to allocate sensitive and political cases to some judges and not others. There is concern that politically sensitive cases and cases in which the government is a litigant are assigned only to specific judges within the High Court. Such a practice is not only inconsistent with the independence and impartiality of the court and is likely to erode public confidence in the rule of law.[13]
- 1. Among others, International Covenant on Civil and Political Rights (ICCPR), Article 14(1);Universal Declaration of Human Rights, Article 10;
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
Basic Principles on the Independence of the Judiciary, Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 (hereinafter: ‘UN Basic Principles on the Independence of the Judiciary’), Principle 1 and 2;Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, Article 1;1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, Value 1Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them. The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.
and Value 2.Independence.
Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
Generally, see also International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007).↵Impartiality.
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
- 2. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.↵
The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
- 3. See Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19;UN Basic Principles on the Independence of the Judiciary.↵
The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
- 4. Constitution, S. 140(1).↵
(1) The judicial power of Swaziland vests in the Judiciary. Accordingly, an organ or agency of the Crown shall not have or be conferred with final judicial power.
- 5. Constitution, S. 141.↵
(1) In the 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.
(2) Neither the Crown nor Parliament nor any person acting under the authority of the Crown or Parliament nor any person whatsoever shall interfere with Judges or judicial officers, or other persons exercising judicial power, in the exercise of their judicial functions.
(3) All organs or agencies of the Crown shall give to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts under this Constitution.
(4) A judge of a superior court or any person exercising judicial power, is not liable to any action or suit for any act or omission by that judge or person in the exercise of the judicial power.
(5) The administrative expenses of the Judiciary, including all salaries, allowances, gratuities and pensions payable to, or in respect of persons serving in the Judiciary, shall be charged on the Consolidated Fund.
(6) The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Judge of a superior court or any judicial officer or other person exercising judicial power, shall not be varied to the disadvantage of that Judge or judicial officer or other person.
(7) The Judiciary shall keep its own finances and administer its own affairs, and may deal directly with the Ministry responsible for finance or any other person in relation to its finances or affairs.
- 6. The two cases were Minister of Home Affairs et al. v. Fakudze et al., and Gwebu and Bhembe v. Rex.↵
- 7. High Court Justice Thomas Masuku was demoted from the High Court to the Industrial Court. The High Court found his demotion illegal.↵
- 8. International Commission of Jurists, Attacks on Justice: Swaziland (2005).↵
- 9. Practice Directive No.4/2011.↵
- 10. International Commission of Jurists and SADC Lawyers Association, General Briefing on Judge Thomas Masuku’s case (8 July 2011).↵
- 11. African Commission on Human and People’s Rights, Lawyers for Human Rights v. Swaziland, Comm. No. 251/2002 (2005), para. 54, 58.↵
- 12. African Commission on Human and People’s Rights, 216: Resolution on the Human Rights Situation in the Kingdom of Swaziland (2 May 2012).↵
- 13. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 96.↵
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