Like other citizens, lawyers are entitled to enjoyment of their rights to freedom of expression, belief, association and assembly. These fundamental freedoms acquire specific importance in the case of persons involved in the administration of justice.
Furthermore, as set out above in Section 3, lawyers are entitled to form and join self-governing professional associations that represent their interests, promote their continuing education and protect their professional integrity.
a) Freedom of association
The Constitution guarantees the freedom of association,[2] and several voluntary associations of lawyers with a specific focus are active in the country, such as Lawyers for Human Rights of Swaziland (who advocate for rule of law and human rights, and among other things have litigated against the government at the African Commission level, see above) or the Christian Lawyers Association (who are a member of Advocates International, a global body of law practitioners with Christian values). While these groups generally operate without government restrictions, officials are rarely responsive to their views.
Membership of the Law Society of Swaziland is mandatory for everyone admitted as an advocate or attorney.
b) Freedom of expression
The Constitution guarantees freedom of expression. However, the provision contains a vaguely worded limitations clause that could lead to it being used to impose extensive restrictions that are broader than those allowed under international law, which requires that any restrictions be prescribed by law, serve a legitimate aim and are necessary in a democratic society.[3]
A number of other laws threaten freedom of expression,[4] notably the Suppression of Terrorism Act 2008, which introduced a vague definition of “terrorist act”,[5] so broad that virtually any act can be prosecuted; severe penalties;[6] and wide discretion for the government to declare an organization to be a terrorist group.[7] The courts’ role in reviewing such decisions is limited.[8] These provisions were used to charge human rights lawyer Thulani Maseko in 2009 (cf. supra).
- 1. UN Basic Principles on the Role of Lawyers, ”PrincipleDraft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), ”PrincipleLawyers shall enjoy freedom of belief, expression, association and assembly; and in particular they shall have the right to:
(a) Take part in public discussion of matters concerning the law and the administration of justice;
(b) Join or form freely local, national and international organizations;
(c) Propose and recommend well considered law reforms in the public interest and inform the public about such matters;
(d) Take full and active part in the political, social and cultural life of their country.
International Bar Association (IBA) Standards for the Independence of the Legal Profession, ”StandardIn times of crisis the stability and continuity of the judiciary is essential. Judges should not be subject to arbitrary removal, individually or collectively, by the executive, legislative or judicial branches. Judges may only be removed, by means of fair and transparent proceedings, for serious misconduct incompatible with judicial office, criminal offence or incapacity that renders them unable to discharge their functions. The right of judges and lawyers to freedom of association, including the right to establish and join professional associations, must at all times be respected.
↵Lawyers shall not by reason of exercising their profession be denied freedom of belief, expression, association and assembly; and in particular they shall have the right to: a) take part in public discussion of matters concerning the law and the administration of justice; b) join or form freely local, national and international organisations; c) propose and recommend well considered law reforms in the public interest and inform the public about such matters.
- 2. Constitution, S. 25.↵
(1) A person has the right to freedom of peaceful assembly and association.
(2) A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
(c) that imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.
(4) Without prejudice to the generality of subsection (2), nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
(a) for the registration of trade unions, employers organisations, companies, partnerships or co-operative societies and other associations including provision relating to the procedure for registration, prescribing qualifications for registration and authorising refusal of registration on the grounds that the prescribed qualifications are not fulfilled; or
(b) for prohibiting or restricting the performance of any function or the carrying on of any business by any such association as is mentioned in paragraph (a) which is not registered.
(5) A person shall not be compelled to join or belong to an association.
- 3. Constitution, S. 24.↵
(1) A person has a right of freedom of expression and opinion.
(2) A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say –
(a) freedom to hold opinions without interference;
(b) freedom to receive ideas and information without interference;
(c) freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and
(d) freedom from interference with the correspondence of that person.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of –
(i) protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;
(ii) preventing the disclosure of information received in confidence;
(iii) maintaining the authority and independence of the courts; or
(iv) regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication; or
(c) that imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.
- 4. See Article 19, Statement: Swaziland: Counter-Terrorism Not a Pretext for Repression (24 November 2008).↵
- 5. Suppression of Terrorism Act, S. 2.↵
- 6. Suppression of Terrorism Act, Part III.↵
- 7. Suppression of Terrorism Act, S. 28.↵
- 8. Suppression of Terrorism Act, S. 28(5)-(7). Also see Amnesty International, An atmosphere of intimidation: Counter-terrorism legislation used to silence dissent in Swaziland (May 2009).↵
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