Like all members of the legal profession, prosecutors must carry out their roles with integrity and in accordance with the law and in a manner that is consistent with human rights and established standards of prosecutorial conduct. And like other legal professionals Prosecutors must be accountable for professional misconduct. These are imperatives for upholding the integrity of the office of the Prosecutor as well as the legal system and respect for the rule of law.

Disciplinary offences must be defined in law or lawful regulations and complaints alleging misconduct must be processed expeditiously and fairly in the context of fair procedures before an independent and impartial body. The prosecutor whose professional conduct is in question must be afforded a fair hearing and the decision must be based on established standards of professional conduct, and subject to independent review.{{1}}


Swaziland’s Constitution guarantees that the Director of Public Prosecutions can only be removed from office in cases of stated serious misbehaviour or “inability to perform the functions of office arising from infirmity of body or mind”.{{2}}

The Minister of Justice institutes proceedings,{{3}} by referring the matter for investigation to the Judicial Service Commission, which is reconstituted for the purpose as may be appropriate, subject to principles of fairness and natural justice. The Commission inquires into the matter and makes a recommendation to the King, who “shall act in each case on the recommendation of the Commission”.{{4}} The procedure does not appear to provide for an independent review of the decision of the Commission in relation to any level of judiciary.

 

[[1]]1. UN Guidelines on the Role of Prosecutors, [expand title=”Guideline 21-22;”]

21. Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors which allege that they acted in a manner clearly out of the range of professional standards shall be processed expeditiously and fairly under appropriate procedures. Prosecutors shall have the right to a fair hearing. The decision shall be subject to independent review.

22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines.

[/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 F(n)-(o);”]

(n) Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors, which allege that they acted in a manner that is inconsistent with professional standards, shall be processed expeditiously and fairly under appropriate procedures prescribed by law. Prosecutors shall have the right to a fair hearing including the right to be represented by a legal representative of their choice. The decision shall be subject to independent review.

(o) Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics.

[/expand] International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, [expand title=”Article 6(f)-(g).”]

In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled: …

(f) to expeditious and fair hearings, based on law or legal regulations, where disciplinary steps are necessitated by complaints alleging action outside the range of proper professional standards;

(g) to objective evaluation and decisions in disciplinary hearings;

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[[2]]2. Constitution, [expand title=”S. 162(8)”]

The Director shall be removed from office in the same manner and on the same grounds as a Judge of the superior courts, except that the Minister responsible for Justice shall initiate the proceedings in terms of section 158 (3).

[/expand] jo. [expand title=”S. 158(2).”]

A Justice of a superior court shall not be removed from office except for stated serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind.

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[[3]]3. Constitution, [expand title=”S. 162(8).”]

The Director shall be removed from office in the same manner and on the same grounds as a Judge of the superior courts, except that the Minister responsible for Justice shall initiate the proceedings in terms of section 158 (3).

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[[4]]4. Constitution, [expand title=”S. 158.”]

(1) A Justice of the Superior Court of Judicature may only be removed from office in accordance with the provisions of this section.

(2) A Justice of a superior court shall not be removed from office except for stated serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind.

(3) Where the King acting on the advice of an ad hoc committee in the case of the Chief Justice, and on the advice of the Chief Justice in the case of any Justice of a superior court, considers that the question of removing from office the Chief Justice or a Justice on any ground stated in sub-section (2) ought to be investigated, the King shall refer the matter to the Judicial Service Commission for investigation.

(4) The Commission shall enquire into the matter and recommend to the King whether the Chief Justice or the Justice ought to be removed from office.

(5) Notwithstanding any provision of this Constitution, the King shall in each case act on the recommendation of the Commission.

(6) Where the question of removal in terms of this section has been referred to the Commission the King may suspend from office the Chief Justice or the other Justice as the case may be for the duration of the inquiry.

(7) Subject to considerations of fairness and natural justice, the Commission shall be reconstituted for the purpose as may be appropriate, the Chief Justice being replaced by the most senior Justice of the Supreme Court, and a Justice who is a member of the Commission 21being replaced by another Justice appointed by the other members of the Commission.

(8) An inquiry in terms of this section shall not take longer than three months.

(9) The King may at any time revoke a suspension under this section.

(10) In this section “ad hoc committee” means a committee made up of the Minister responsible for Justice and Chairman of the Civil Service Commission and the President of the Law Society of Swaziland.

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