Swaziland - Justice Sector and the Rule of Law

Since 2005, when Swaziland adopted its current Constitution, the legal framework has undergone significant changes which have transformed the justice sector and the rule of law to some extent.

June 22nd, 2013

Since 2005, when Swaziland adopted its current Constitution, the legal framework has undergone significant changes which have transformed the justice sector and the rule of law to some extent.

Among the indicators of progress made in this area are the establishment of a Bill of Rights, as well as the creation of various institutions mandated to administer justice and promote transparent and accountable governance. In addition to the gains registered in respect of the national legal framework, Swaziland has also made progress with respect to complying with certain international obligations in the areas of justice delivery, the rule of law, and human rights. For its part, the judiciary has contributed to the progressive development of the justice sector through some activism in holding accountable public officials who breach the law.

Despite the gains mentioned above, however, more needs to be done if the law and practice are to enable Swaziland to honour both its constitutional and international obligations in full. The list of areas that need attention is long and the prospects of reforms will be conditioned by the peculiarities of Swaziland’s system of government, which attempts to blend parliamentary and traditional systems of government. Against this background, it is essential that any interventions proposed for the purposes of improving the prospects of justice, the rule of law and human rights should be strategic in nature.

A strategic response to the challenges that face the Swazi justice sector requires integrating the challenges of particular institutions into a unified analytical framework that seeks to understand and explain the interconnectedness of the challenges. The adoption and implementation of a sector-wide policy and strategy will go a long way towards facilitating such a strategic approach to justice sector reform. The strategic approach must also adopt as its specific aims: alignment of Swazi law to Swaziland’s international obligations; improvement of government respect for the law; grounding criminal justice in human rights norms; enhancement of the efficiency of justice sector institutions; expanding access to justice; and securing the independence and accountability of the judiciary and lawyers.

So the (AfriMAP) and OSISA report on Swaziland: Justice Sector and the Rule of Law recommends:

  • The government should expedite the adoption of a sector-wide policy framework for the justice sector and mobilise resources to fund implementation of components of the policy, including capacity-building for planners;
  • The government and civil society organisations should lobby development partners to increase their overall budget support for the justice sector, especially in strategic areas such as the development of a sector-wide policy framework, the development of a comprehensive law reform programme, and reforms in traditional customary law;
  • The government should adopt and implement a plan of action that seeks to harmonise all national laws with international human rights norms. The plan should have the following main objectives: the ratification of outstanding treaties; the domestication of all treaties that it has ratified; and the clearing of the backlog of overdue treaty reports;
  • The government should promote a culture of respect for the law among justice sector institutions by enhancing the accountability of public officials through enacting legislation that imposes personal liability on public officials for any breaches of the law, which they perpetrate;
  • The government should develop and implement a legal information management and dissemination plan with the following main objectives: increased digitisation of legal information generation, storage and dissemination; increased electronic networking connecting justice sector institutions; and increased accessibility of legal information to the public, especially marginalised and vulnerable groups such as women, people with disabilities, rural inhabitants and people who are not literate in the English language;
  • Civil society advocates for improved access to justice should enhance the legitimacy of their interventions by linking them conceptually and programmatically to the improvement of the living conditions of the average Swazi citizen;
  • The Law Society of Swaziland should implement a programme aimed at enhancing public access to affordable and accountable legal representation through the establishment of a compulsory obligation on lawyers to provide a set minimum amount of pro bono services, and through advocating for public representation on the membership of the Disciplinary Tribunal;
  • Government ministries and civil society organisations with an interest in the inclusion of vulnerable groups in governance and development should implement a collaborative programme aimed at overcoming barriers to accessing justice which disproportionately affect vulnerable groups; and
  • The government should initiate a criminal justice review centred on amendments of the CP&E, the Police Act, the Prisons Act and other related statutes to ensure that policing, prosecution, sentencing, and penal regime policies and practices comply with human rights standards, as well as on establishing human rights as a key component of the respective missions, training curricula and operational guidelines of the police and the Correctional Services.

Contacts

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