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  • Ncamiso Ngcamphalala

Is our justice captured??


Police stopping citizens from marching peacefully

Before I venture into this topic the leadership of The Political party Assembly (PPA) would like to assure the mandate givers and the peoples of Swaziland from different socio political spaces in in our society that “No amount of Threat, Persecution, harassment and detention will deter us from fulfilling the only one mandate of the people,” “which is Dialogue with the Monarchy for a governance system that allows the Monarchy to reign and people to choose their government through political parties.”

The harassment of Musa Nkambule Chairman of Sive Siyinqaba can only help unite the PPA leadership than threaten it, every one of the PPA is one of our own. We give you this assurance because we all believe silence in the face of injustice makes the silent party equally guilty with the perpetrator of injustice. My subject which is a broad question for all “Is our justice system water tight and not captured relevant.

As we land into this subject, of the independent Judiciary question, I believe any peace loving citizen, would be concerned by the quality of justice they get from the judicial system in their country. The same goes for business, same goes for would-be investors and same for investors and the captains of capital. It is the function of a working, unpoliticised and uncaptured but free and independent judiciary that gives confidence to all peoples in a country.

The bedrock of the internationally recognized fundamental right such as “Equality before the law,” can only be guaranteed when the Judiciary is unshakably free, independent and operates without any form of interference and freely resists interference from any direction and sphere of influence.

I am convinced that this can only be attainable where the Supreme law is respected and where the Supreme law distinctively and unequivocally dictates Separation of powers, giving clear separation of roles among the three arms of government the Independent Judiciary, the independent Executive and the independent legislature so as to ensure checks and balances. In the absence of the clear separation of powers and the independence of the three arms of government from each other, interference is likely to happen someday.

In this country we have lived in an era of the draconian 1973 decree where voices of the people were deliberately and arrogantly silenced by banning their political voices by banning political parties and only left Imbokodvo National Movement, the freedoms of the people were completely eradicated by banning the Bill of rights from the independent constitution and the fatal blow that killed the free judiciary and legislature was when the proclamation vested all the powers into the institution of the Monarchy without the mandate from the people themselves a sad day indeed the day where King Sobhuza II committed the unprecedented royal coup de tat and the Imbokodvo was an accomplice to the worst political crime against humanity in the Kingdom.

As if this was not enough, after the heinous evictions crimes at Macetjeni and Kamkhweli Chiefdom areas, by the combined armed forces under the instruction of the Executive, Where the head of government the then Prime Minister Dr. Barnabas Sibusiso Dlamini issued a notorious November, 28 statement, after the Supreme court had ruled that the deposed chiefs Mliba and Mtfuso be reinstated into their chieftaincy positions. It did not end there, the evictees who died supporting the original chiefs and not Prince Maguga were even disallowed permission to be buried in the land of their forefathers much against the order of the court. That judicial crisis led to mass resignations of the Judges of the Court of Appeal.

Fast forward to the constitutional era, this period has also been filled with controversies in the Judiciary particularly in the era of Chief Justice Ramodibedi, who facilitated the gross unfair, unprofessional and unlawful dismissal of a very sharp Judicial liswati in the person of Judge Justice Masuku for expressing the truth like it was even if it was not providing sweet aroma in the ears of the authority, this was an orchestrated miscommunication, by those closure the King, if I remember quite well, Justice Masuku, said ‘the King cannot speak in forked tongues” and the message disseminated was that Justice Masuku said “the King was speaking in forked toungues,”in this case the Executive interfered with the Judiciary, thanks God we had a very Principled Minister for Justice the then Reverend David Matse who refused to be party to the mess, of course that cost him his job, I wish we had many of the David Matse, God fearing Man of Conscience caliber in positions of leadership, people who stand for the truth even if it threatens their privileges in life.

Before Majay, Mkhwanazi, passed on, speaking on his capacity as the President of the Law Society of Swaziland alluded to the statement that “He felt Justice was for sale in Swaziland.”

The greatest pity that keep confessing itself is that the constitution was not adopted because we believed in it, but because there was external and sufficient internal pressure then, the best thing was to adopt it with full knowledge that there was no intention to implement it. This I perceive because there has never been any deliberate exercise of law reform to ensure that all the laws that did not conform to the constitution are aligned accordingly, the resounding example is that the constitution has no section that says this act repeals the 1973 April 12, King’s Proclamation. Efforts made by the Universal Peer Review of the United Nations, calling upon the Kingdom to make a declaratory order that the 1973 decree is repealed is drawing some form of resistance from the government. For the free Primary education to kick-in, needed the ordinary Swazis to go to the courts to claim their rights from the courts, and we are pleased that the court in this particular issue favored the dictate of the constitution.

The Chief Justice also raised a comment that gave the impression that there was some element of political interference in one of the statements he made,

I began to think about all political cases that were reported during the last recent elections, where a special tribunal for elections was set up, a good and noble gesture as elections are time focused and there is need for a court specialized to look into that national task so that justice is meted out even during the process of elections, however in the case of the tribunal that was set, whilst the honourable justices are honourable indeed but it still leaves an indelible question as to why were all justices picked for such an exercise all former EBC officers, some drafters of the laws which were questioned. A majority of the cases that challenged EBC and some contestants were lost, whilst these questions and cases were human rights focused all trying to ensure that justice is done, but all who lost were charged with costs, completely ensuring that they never question any wrong doing in the election process for me that sounds like political interference but I stand corrected.

Anybody and everybody who has a role to play in ensuring a functioning credible and independent justice system must stand and be counted. May His Lordship the Chief Justice, as the Head of the Judiciary assist us clear the doubts, we need and deserve an independent Judiciary for all to feel equal before the law, and once that is solved, investors will be happy just as the small man on the street can be assured of his dignity of person only if he feels equal with everybody before the law. Independent Judiciary is pivotal in ensuring the first world status.

Jan J Sithole

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