The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.{{1}}
As noted above, the Constitution in Swaziland expressly guarantees that, “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}} It furthermore guarantees that neither Crown nor Parliament or any person acting under their authority shall interfere with the exercise of judicial functions.{{3}} Also, all organs or agencies of the Crown are required to give the courts such assistance as they may reasonably require for protecting the independence, dignity and effectiveness of the courts.{{4}}
Regrettably, as described above and below, these Constitutional guarantees of and safeguarding judicial independence continue to be breached in practice.
[[1]]1. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 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.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(a).”]
The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities;
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[[2]]2. Constitution, [expand title=”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.
[/expand][[2]]
[[3]]3. Constitution, [expand title=”S. 141(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.
[/expand][[3]]
[[4]]4. Constitution, [expand title=”S. 141 (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.
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