CHEERS FOR CONSTITUTION WITH FREE JUDICIARY

According to the Constitution of the kingdom, there are three arms of government which are independent of each other by law, but function together in practice.

These are the Executive, Legislature and the Judiciary. As you might all know the Executive is led by the prime minister and his Cabinet, the Legislature is led by the Speaker and Senate president, the Judiciary is led by the chief justice.

Independence of Judiciary

The First World is not only about building and advancing infrastructure but it’s also about top notch institutions such as the three pillars of government. The investment made in the High Court buildings was a good start, but the horrible state of magistrates courts show how far we are from the First World. The proposed investment in a new Parliament building was long overdue, however, government’s biggest problems have always been the overruns caused by corruption and negligence. A two billion Emalangeni Parliament can easily become four billion and no one held accountable for that.

Some of the oldest and noblest of professions are that of judges, magistrates and lawyers. These positions were given to a special breed of individuals who had integrity and above reproach; who were able to dispense justice with knowledge, relevant information and above all with wisdom. Honourable judges with integrity, deserving of respect, are men and women whose decisions are not influenced by anyone but the facts at hand and the rule of law they seek to protect as per the Constitution they uphold. The way the Judiciary, as a whole, conducts itself reflects positively or negatively on the whole nation, both internally and externally.

When the Judiciary is free and fair, ordinary citizens trust it and feel safe from any bullies within the land, knowing that they have justice to protect them at all times. These may include the widows whose property is being taken unfairly by their in-laws or the worker whose rights are trampled upon by a big and powerful corporation.

FDI and tourism

The freedom of the Judiciary extends to foreign direct investment (FDI) and tourists visiting the country. A country might suddenly see a drop of FDI and tourism and wonder why. The FDI is driven by people who look at many factors before investing or visiting and the freedom of the Judiciary is very high on the list of their priorities.

Constitution on the Judiciary

The work of Prince David and his team on the Constitution must be commended, they tried to protect the Judiciary, but it is up to this arm of government to work collectively to rid itself of weak links as it has all it needs.

Chapter VIII  
(1) In the exercise of the judicial power of Swaziland (Eswatini) the Judiciary, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to this Constitution, and shall not be subject to the control or direction of any person or authority.
The Constitution gives the Judiciary full power and autonomy to operate independently in terms of dispensing justice, its administrational functions and its financial functions.  No other arm of government or any authority including His Majesty the King can put pressure on the Judiciary, in terms of administrational processes or financially to force them to do anything because that is against the rule of law.
(2) Neither the Crown nor Parliament nor any person acting under the authority of the Crown or Parliament nor any person whatsoever shall interfere with judges or judicial officers, or other persons exercising judicial power, in the exercise of their judicial functions.
This simply says the King or Indlovukazi, Speaker  and Senate president nor the prime minister can interfere with the work of judicial officers, or other persons exercising judicial power, in the exercise of their judicial functions. To instruct any judicial officer to take any action is constitutionally illegal as it can be interpreted as interference. To instruct the Judiciary to stop any action already in progress is also illegal.
(3) All organs or agencies of the Crown shall give to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts under this Constitution.
The key words here are protection of the independence, dignity and effectiveness of the Judiciary. All assistance and support must be given by all organs of state. Whatever the Judiciary needs to do, the work must be given because justice is the binding force that keeps citizens together and safe.
(4) A judge of a superior court or any person exercising judicial power, is not liable to any action or suit for any act or omission by that judge or person in the exercise of the judicial power.
It is very interesting to note that a judge is 100 per cent protected for decisions he/she make in the process of executing his or her duties. The judicial officers are free to work according to their conscience with no fear whatsoever. When a judge passes judgment on any case he/she is fully protected.
(5) The administrative expenses of the Judiciary, including all salaries, allowances, gratuities and pensions payable to, or in respect of persons serving in the Judiciary, shall be charged on the Consolidated Fund.
This point is very interesting in that the Constitution is giving the Judiciary financial independence so that it will not find itself dependent on any of the other arms of government. Note that the King and royalty also get paid from the Consolidated Fund.
(6) The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a judge of a superior court or any judicial officer or other person exercising judicial power, shall not be varied to the disadvantage of that judge or judicial officer or other person.
The Constitution has gone out of its way to protect judges against any disadvantage of any type, making certain that they do their work freely without external pressure.
(7) The Judiciary shall keep its own finances and administer its own affairs, and may deal directly with the ministry responsible for finance or any other person in relation to its finances or affairs.
The Constitution, which is the supreme law of the land, has given the Judiciary all the powers it needs to dispense justice without fear or favour. However the strength of the Judiciary depends on the unity of judges, lawyers, magistrates and persecutors. The strength of any chain is as strong as its weakest link. The chief justice must be a man of integrity, who is above reproach and preferably a God fearing man who can stand his ground against all higher authorities and only bow down to the Constitution. The law and justice must never be for sale to the highest bidder; that is the First World. septembereswatini@gmail.com

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