ACCUSED VS AG, MINISTER OF JUSTICE

Madam,

The Constitution of Eswatini provides for a presumption of innocence. In the absence of conviction, it is unfair to lock up an accused and throw away the key, and at the same time take away his/her dignity and liberty, and prosecute him/her in the court of public opinion. The sacred duty of the AG is to ensure that the letters of the Constitution take precedence. A liSwati should not be deprived of his/her liberty except through due process. The spectacle of an AG advising government to disobey courts must also be shocking to all lawyers and every person involved in the administration of justice. Unless there is a supernatural reason for such a development, which is unknown to us, it makes no sense within the provisions of the law to do that, because the AG, in the contemplation of the Constitution, is an officer of the law, not just an ordinary officer. This is more reason why we should open a debate about the possibility of separating the office of the AG and minister of Justice.

We should take a second look at amending the Constitution to resolve an inherent conflict which places the protection of the rule of law at the mercy of the strength of character of the occupier of that office as currently defined. Let me try and define the conflict. The AG of Eswatini, as ‘Chief Law Officer’, is necessarily performing a professional function. He is expected to know the law, enforce due process and advance the cause of justice. He is a technocrat. While a minister of Justice is basically a political appointee, exercising delegated authority as determined by his/her appointer, while the AG’s commitment should be strictly to the rule of law.

Balancing

The minister is judged and retained by his/her boss on the basis of his or her loyalty, the quality or non-quality of it. Not too many men can walk this tightrope; successfully balancing these two functions and the conflicting expectations, and this has been the major challenge with the idea of combining the functions of the AG and the minister of Justice. An amendment of our Constitution should create a separate office of the AG, which will be completely independent and whose occupier will have a security of tenure and no political affiliation. There can be a minister of Justice who, if he wished, can attend Parliament functions and go there daily, just to shoot the breeze.

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