ICJ report highlights attacks on the legal profession in a context of weak rule of law and justice foundations
Lawyers in Eswatini are facing daunting obstacles in operating independently, amidst serious and ongoing threats to their lives, intimidation, harassment and surveillance, as highlighted in an upcoming report of the International Commission of Jurists entitled “No Situation is Permanent” – Repression, Intimidation, Harassment and Killing of Lawyers in Eswatini.
The barriers to the work of independent lawyers, coupled with the failure of the authorities to secure judicial independence, mean that in many cases justice cannot be administered fairly in the country. These long-persisting problems have become hyper-charged since the June 2021 unrest and following the extrajudicial killing of prominent human rights lawyer Thulani Maseko on 21 January 2023.
“In the two years since the killing of Thulani Maseko in his home in front of his wife and children, the authorities have failed to make any real progress in identifying and bringing those responsible to justice” said Kaajal Ramjathan-Keogh, ICJ’s Africa Director.
“This abject failure to address impunity for Thulani’s killing has only compounded the fears expressed by lawyers that acting in cases to defend human rights and the rule of law will lead to severe and possibly fatal consequences”, added Ramjathan-Keogh.
The findings of the report will be presented today, 23 January 2025, in Johannesburg, South Africa at an event co-organized with the Thulani Maseko Foundation, which commemorates two years since Thulani’s extrajudicial killing.
“The failure of the Eswatini authorities to make progress on an independent investigation into Thulani’s killing is devastating for us as his family and continues to have a chilling effect on lawyers and human rights defenders in Eswatini”, said Tanele Maseko, the Executive Director of the Thulani Maseko Foundation.
The ICJ’s report, which is largely informed by interviews with Eswatini lawyers who have faced extreme pressure since June 2021 in particular, reveals a variety of widespread concerns voiced by independent lawyers, particularly:
- Lawyers fear being extrajudicially killed.
- Lawyers are followed, harassed, threatened and intimidated.
- Women lawyers are threatened with sexual violence.
- Lawyers are associated with the actions of their clients simply as a consequence of carrying out their legitimate professional functions.
- Lawyers face adverse economic consequences for taking on cases or clients perceived as “political”.
- Lawyers identify worrying challenges in respect of the Law Society of Eswatini’s execution of its mandate.
- Lawyers indicate that legal professionals operate in an environment that inhibits their ability to act independently.
- Lawyers allege that the judiciary is not independent.
- Lawyers consider that the Chief Justice of Eswatini abuses his power.
- Lawyers experience significant obstacles and pressures in relation to cases emanating from the June 2021 unrest.
- Lawyers are significantly adversely impacted by the killing of Thulani Maseko.
- The shrinking of civic space more broadly.
“The availability of legal representation is made even more vital in Eswatini by repressive legislation outlawing broad swathes of conduct defined as “terrorism” or sedition and only a very small proportion of lawyers are willing to take on cases considered to be ‘political’ or ‘controversial’,” said Mzwandile B Masuku, a lawyer practicing in Eswatini.
“We are conscious of the implications of taking on such cases to ourselves and our families”, added Masuku.
For more information
[Executive Summary] An executive summary of the report is available [here].
[Full Report] The full report is 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.
Additional Information
The report makes a full set of recommendations to Eswatini authorities. These include, among others:
- Pursue avenues constructive dialogue, inclusive of all stakeholders, towards constitutional reform to ensure the creation of a democratic society based on human rights and the rule of law in Eswatini.
- Immediately desist from any acts of persecution, intimidation and harassment of lawyers.
- Immediately desist from interference, of any kind, with the functions and powers of judges and judicial officers and the functions of lawyers to ensure the independent operation of the judiciary and legal profession in a manner consistent with international human rights law and standards.
- Establish a fully independent mechanism consisting of a mix of independent Eswatini lawyers and independent international legal experts, including from the Africa region, with a view to expediting effective, thorough and impartial investigations of:
- the deaths and injuries of protestors in connection with June 2021 unrest;
- the extrajudicial killing of Thulani Maseko;
- the harassment, intimidation and targeting of lawyers and human rights defenders, for alleged conduct relating to the legitimate exercise of freedom of expression and political participation, including that involving criticism of the government and government policy and conduct, calling for constitutional reform and advocating for democracy and human rights.
- Ensure the expeditious resolution, through the appropriate constitutional channels and processes, of the complaint initiated by Law Society against the Chief Justice in December 2022.
This report addresses the independence of judges and lawyers in Eswatini with a particular focus on the perceptions and experiences of lawyers representing clients in cases relating to issues of public interest and human rights. It continues from the International Commission of Jurist’s (ICJ) long term advocacy for the protection of the rule of law, judicial independence and human rights in Eswatini (formerly Swaziland), dating back to the 1980s.
Following a surge of events signalling the deterioration of an already precarious human rights and rule of law situation in Eswatini, the ICJ received repeated requests from Eswatini lawyers to undertake an investigation and make recommendations on the independence of lawyers and judges in Eswatini in 2023.
Three critical and emblematic events contributed significantly to this deterioration: 1) the June 2021 unrest in Eswatini and the government’s responses thereto; 2) the extrajudicial killing of Thulani Maseko on 21 January 2023; and 3) the conviction and sentencing of two members of Parliament, Mduduzi Bacede Mabuza and Mthandeni Dube, to lengthy sentences for remarks made by them in the context of the June 2021 protests.
Responding to lawyers’ requests in late 2023 and early 2024, the ICJ conducted interviews of approximately 30 individuals, 25 of whom are legal professionals in Eswatini. Some interviews were conducted in person and others were conducted online. They were then transcribed for the purpose of their use in this report. Interviews were undertaken under the strict agreement of anonymity, which was considered necessary due to security considerations and quotes are used in this report with express permission of those interviewed.
The lawyers interviewed were, in the main, selected because of their participation in cases considered to be controversial in Eswatini, including those in which they: 1) represented individuals charged with minor crimes relating to protests; 2) represented individuals who are members of opposition political movements who advocate for democracy and/or human rights (human rights defenders); 3) represented individuals in legal conflicts of any kind with members of the royal family or companies and individuals related to it.
The independence of judges and lawyers, as well as their accountability, is a core rule of law principle. The UN Human Rights Council, in repeated resolutions, most recently in 2023, has affirmed that such independence and accountability are “essential prerequisites for the protection of human rights and fundamental freedoms and the application of the rule of law”.
Regarding the independence of lawyers, the primary international standards are contained in the UN Basic Principles on the Role of Lawyers. They assert 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”. Both the institutional independence of lawyers and their independence at an individual level must be guarded. In doing so, 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 independence of judges and lawyers is also entrenched in the African Charter on Human and People’s Rights and in the jurisprudence of the African Commission on Human and People’s Rights. In the specific context of Eswatini, the African Commission has issued three communications decisions relevant to the independence of the judiciary, summarized in the report. The Commission has also condemned the killing of Thulani Maseko, calling for an “an independent inquiry” and 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 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”.