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CJ, SOME JUDGES NOT APPOINTED IN FAIR MANNER – SADCLA

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MBABANE – The Kingdom of Eswatini continues to be plagued by structural challenges that infringe upon the independence of the Judiciary and proper separation of powers.

This is according to the SADCLA Report 2021 titled ‘The Independence of the Judiciary in Eswatini, Zimbabwe and Zambia’. The report stated that although former Chief Justice (CJ) Michael Ramodibedi was replaced by Bheki Maphalala in 2015, the structural challenges have remained. The report stated that the constitutional and legal changes needed to ensure proper promotion and respect for the independence of the Judiciary remained elusive and that in 2016, the African Commission on Human Rights confirmed the ongoing lack of adequate separation of powers which had a damaging effect on judicial independence. The report pointed out that the current CJ and some judges were not appointed in a fair manner. It should, however, be stated that the CJ in the country is appointed by His Majesty King Mswati III.

Chairman

The report said given the fact that Maphalala was the chairman of the Judicial Service Commission (JSC) at the time he was appointed, it made it look like he had recommended himself and that the process was not open or transparent. It was stated in the report that in November 2015, Maphalala was given the mandate to resolve the judicial challenges brought about by events leading up to the removal of Ramodibedi. “He was also tasked with restoring public confidence in the Judiciary, investor confidence in credibility of the Judiciary and strengthening international community ties through the promotion of respect for judicial independence. “As of 2020, it seemed that corruption at the higher levels of government still seemed to go unprosecuted and perhaps indicated government’s will to deal with corruption,” it was stated in the report. Reference was made to an annual report issued by the office of the auditor general which it was stated exposed widespread fraud and financial irregularities across numerous government ministries yet many of the cases were pending indefinitely because of the strategic connections of the accused.

The report also pointed out some flaws in the appointment and composition of the JSC itself. It should be noted that the JSC is tasked with advising His Majesty King Mswati III when exercising his power to appoint persons who hold or act in any office specified in the Constitution. This includes advising the King on his powers to exercise disciplinary control over the appointed persons and to remove them from office.
One of the issues raised was the fact that the principal secretary in the Ministry of Justice and Constitutional Affairs also served as the secretary of the JSC, which meant that she ran a key function within an Executive arm of government, while simultaneously performing functions within the JSC. “This is a clear threat to the separation of powers and ultimately the independence of the Judiciary made even more prominent by the fact that this is not common practice in other southern Africa jurisdictions. It is usually seen to it that the JSC runs its own independent administration without interference from other spheres of government,” reads part of the report.
Also of concern, as contained in the report, was the wide-ranging powers of the CJ as the chairman of the JSC.

 

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