MPS CAN OVERRULE COURTS

MBABANE – Decisions or judgements of courts in Swaziland can be overturned by Parliament and other higher tribunals.

The Times SUNDAY today reveals that this relatively unknown fact has been the ‘status quo’ since May this year.
This would mean it is two months old. It was the view of the Supreme Court when it made its ruling in the matter between the State versus Swaziland Independent Newspapers and Bheki Makhubu, Editor of The Nation magazine.
This is the first matter in which Makhubu was charged with Contempt of Court. He was convicted and fined E200 000, which was later overturned by the Supreme Court, which reduced the fine to E30 000.

“Ordinarily, the decisions of courts are subject to correction by other, higher tribunals, for reasons that are debated and made known publicly,” reads the judgment in part written by Justice SA Moore.
The two other judges he was sitting with concurred. “To the above dictum, I would respectfully add that even judgments of the highest and final courts are open to searching academic, journalistic, judicial, parliamentary and other forms of public criticism. Ultimately, they may even be overturned by the Legislature,” continued the judgment.

However, the Supreme Court emphasised on the independence of the Judiciary and that there should be no interference in the execution of duties of judicial officers. “Neither the Crown nor Parliament or any person acting under the authority of the Crown or Parliament nor any person whatsoever shall interfere with judges or judicial officers,” said the judgment.
However, Majahenkhaba Dlamini, Attorney General (AG), told the Times SUNDAY that Parliament could not overturn directly the decisions made by courts.
He explained that the Legislature was a law-making body.

For that reason, it can only make general laws but those laws could not overturn the court judgments directly.
Review
“Parliament makes general laws, so it cannot make laws that can challenge and overturn specific judgments made by judicial officers. It can pass a law which might have a bearing on a particular judgment. However, to review that judgment would depend on the retrospective effect of that law, which can affect that decision.” he said.
The issue of separation of powers has been controversial for years in Swaziland.

Absalom Themba Dlamini, then Prime Minister, told His Majesty the King during the opening of one of the sessions of the Eighth Parliament, that Swaziland was not a dictatorship state because it had separation of powers.
However, days after that parliamentary speech, supposedly under pressure from certain quarters, Dlamini made a public apology to His Majesty and the nation.

In his apology, he said his statement was misunderstood as he had not meant to imply that the King was a dictator but had merely been explaining why he was not.
However, history repeated itself during the opening of Parliament when Senate President Gelane Simelane made comments about the ‘separation of powers.’
A nasty public spat happened between her and Prime Minister Sibusiso Dlamini. However, Simelane stood her ground.

On the Supreme Court judgment, Lomcebo Dlamini, a human rights lawyer, said the review could be done by the Legislature through a judicial process.
Parliament could pass a law and the judiciary would then have to correct itself.
She said the three arms of government, though independent, have complementary roles. “I do not believe that the Supreme Court meant ‘to overturn’ literally. My interpretation, in the context of the whole paragraph is that they are probably referring to an amendment of law (which is part of the law making process) on an issue which the court may have pronounced.

Dlamini said any review or overturning of court judgments could be done within the infrastructure of the judiciary.
“The interpretation of law is not within the purview of Parliament whose primary role is law making and thus Parliament which is itself expected to respect court judgments, is not competent to usurp the power of the courts in this regard,” said Dlamini.

She said the independence of the Judiciary was not absolute, as the three arms are interdependent, to safeguard abuse of power. “The checks and balances between the three arms are inherent in their roles and none is subordinate to the other,” she said.

Dlamini said the Constitution of the Kingdom of Swaziland addresses the matter of how issues within the judiciary are to be dealt with.
Senate President Simelane and Themba Msibi, Speaker in the House of Assembly, said they were ignorant of the judgment.
“I won’t comment for now until I have read the judgment you are quoting,” said  Simelane.

Msibi, interviewed separately, also said he was not aware of such judgment. “I’ll have to familiarise myself with the judgment before I can make comments on the matter,” Msibi said. 
Legislature
However, University of Swaziland Political Science lecturer, Dr Petros Qambukusa Magagula, known as PQ, said although he was not sure how the Legislature could overturn judgments of the courts, it probably meant the Legislature could pass a law that would take care of an incident in the future.
Nevertheless, he saw the Supreme Court judgment in the light of human rights promotion and freedom of expression, considering the current status where freedom of expression is stifled.
He said citizens had a right to speak and react to any particular judgment.

Magagula feels that to scrutinise or critique judgments of the courts was an academic exercise but it did not mean academics and students were encroaching on the independence of the judiciary.
He said the judiciary was subject to public scrutiny like all the other organs.

However, Magagula believes the two other arms of government (Executive and Legislative) should be helping the judiciary to address the problems.
“I don’t buy the view that the Executive cannot intervene in their affairs. The judiciary should operate in a transparent manner. Lesotho is a good example. When the judiciary was straying, the Executive called it to order. That is what we call checks and balances,” said Magagula.

He wondered: “Who appoints the JSC? If it is the Executive, how come they can’t call it to order?”
Magagula said the independence of the three arms of government did not mean that one should act willy-nilly.  He criticised the Legislature’s silence on the confusion state of the Judiciary. “I can’t blame the prime minister alone for the problems facing the Judiciary, the legislature’s silence is confusing,” said Magagula.

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