Four months on from the publication of the ICJ’s report on attacks on the legal profession, and after multiple expressions of concern relating to the state of judicial and legal independence by the UN Special Rapporteur on judges and lawyers, Eswatini has failed to take concrete measures to address the crumbling state of rule of law in the country.
The ICJ’s report, No Situation is Permanent” – Repression, Intimidation, Harassment and Killing of Lawyers in Eswatini, underscored that lawyers, particular those taking human rights cases and cases in public interest, face immense obstacles in operating independently in the country.
The UN Special Rapporteur has conveyed similar concerns to the Eswatini authorities, most recently in a communication issued on 7 April, pointing to reports she had received of regular and targeted attacks on lawyers, including killings and attempted killings. Prominent among these is the extrajudicial killing of human rights lawyer Thulani Maseko, regarding which there has so far not been an effective investigation, nor have those responsible been held to account.
According to Eswatini human rights lawyer Mzwandile Masuku:
“the UN Special Rapporteur’s communication raises pertinent issues that we as Eswatini lawyers have repeatedly raised with the authorities to no avail. The government’s apparent lack of response to the communication is disappointing”.
The ICJ is also concerned at the relative passivity of the Law Society of Eswatini in performing its statutory mandate to protect the rule of law and secure the independence of lawyers.
“The Law Society of Eswatini must play a bigger role in ensuring that lawyers are able to perform their mandate. Disappointingly, the Law Society has generally not responded adequately to complaints of its members about harassment and intimidation and has failed to put pressure on authorities to investigate the extra-judicial killing of Mr Thulani Maseko”, said Kaajal Ramjathan-Keogh, ICJ’s Africa Director.
The failure of the State authorities to ensure the rights of lawyers, coupled with the inadequacy of the Law Society to in discharging its protective function, have left the legal profession with little recourse.
“It is critical that lawyers are permitted to undertake their work without any fear of reprisal and that authorities endeavour to secure the independence of the judiciary. Unfortunately, it is often the case that the authorities have taken steps to endanger the independence of the judiciary instead of guarding it as required by the Constitution”, said Mzwandile Masuku.
In her communication, the Special Rapporteur draws attention to the problem of temporary appointment of judges and the fact that
“those selected for both temporary and permanent positions do not match the ideal profile required by a judge and are not appointed following a transparent process focused on assessing the merits of the candidates”.
The Special Rapporteur’s communication also points to the lack of security in tenure for temporary judges, “as well as the alleged close ties of the judiciary to the Royal family.”
Another unresolved issue raised by the Special Rapporteur relates to an unresolved complaint made by the Law Society of Eswatini in December 2022, which makes serious allegations against the current Chief Justice, Bheki Maphalala, impugning his independence including in respect of abuse of his power to appoint acting judges.
Download
[SR’s Communication] is available in full here.
[Executive Summary] An executive summary of the report is available here.
[Full Report] The full report is available here.
[Webstory on the Special Rapporteur’s recent visit to Eswatini] available here.
[ICJ Tribute to Thulani Maseko] ICJ Tribute by ICJ Africa Director Kaajal Ramjathan-Keogh, to Swazi Human Rights lawyer, Thulani Maseko, presented at commemoration of the second anniversary of his assassination, 23 January 2025, available here.
Background
The ICJ’s February report makes a range of recommendations to the Eswatini authorities in respect of both independence of judges and lawyers. Critical aspects in the report echoed as concerns in the Special Rapporteur’s communication include:
- The failure to expeditiously and independently investigate the killing of Thulani Maseko;
- The failure to take measures to prevent the harassment, intimidation and surveillance of lawyers;
- The failure to take measures to resolve the pending complaint laid by the Law Society of Eswatini against the Chief Justice;
- The arrest, prosecution, detention and sentencing of two members of Parliament for exercising internationally protected human rights in process described by the African Commission on Human and People’s Rights as “politically motivated”.
- The inadequacy of existing safeguards to protect the independence of the judiciary in Eswatini.
The independence of judges and lawyers, as well as their accountability, is a core rule of law principle. the UN Basic Principles on the Role of Lawyers affirm that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled… requires that all persons have effective access to legal services provided by an independent legal profession”. States must take measures to ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”.
The African Commission on Human and Peoples’ rights has issued three decisions relevant to the independence of the judiciary in Eswatini, summarized in the ICJ’s February 2025 report. The Commission has also condemned the killing of Thulani Maseko, calling for an “independent inquiry”, and has cautioned that, “under no circumstances should intimidation, threats, actual violence or the killing of any activist, or human rights defender be ignored by State authorities.” It has also separately called on the Eswatini authorities to “ensure that there are prompt, transparent, effective, independent and impartial investigations into all allegations of human rights violations” relating to the June 2021 unrest, and to “withdraw all politically motivated charges and release all political prisoners, including”.
Eswatini’s Constitution provides that the judiciary “shall be independent and subject only to this Constitution and shall not be subject to the control or direction of any person or authority.” Despite this provision, ICJ has documented that deficiencies in the guarantees and exercise of judicial independence have been commonplace throughout Eswatini’s constitutional dispensation. The independence of the legal profession is safeguarded under the Legal Practitioners Act.
Contact
Kaajal Ramjathan-Keogh, Director, ICJ Africa Regional Programme, e: kaajal.keogh@icj.org
