Lawyers challenge monarchy

Lawyers for Human Rights Swaziland has issued a direct challenge to King Mswati III's assertion that his unlimited and unchallenged power is proper because it is based on an unwritten tribal compact called "Swazi Law and Custom".

In so doing, the group also condemned government's dismissal of court rulings the palace finds inconvenient.

"Government is keen to make the king an absolute autocrat with unlimited [powers]," said the Mbabane-based organisation in a statement distributed to the media. The lawyers asserted that Swaziland's rulers had created a lawless state.

"Government has firmly adopted the attitude of refusing to abide by court judgments," the group said in reference to the refusal of Prime Minister Sibusiso Dlamini to recognise a Court of Appeal ruling that overturned Mswati's power to rule by decree.

The lawyers accused Prime Minister Dlamini, a palace appointee, of waging a disinformation campaign against the courts and "deliberately misinforming" the nation about court judgments.

The premier precipitated a "rule of law" crisis late last year when he condemned the judgment of the Court of Appeal, comprised of six South African judges. He claimed the judges were swayed by foreign ideologies and ignorant of Swazi law and custom.

"The assertion that the Court of Appeals judges were influenced by outside influences is an insult of the highest degree to the judges and the legal fraternity of Swaziland," said the lawyers' group.

At the heart of the lawyers' argument, an attorney with the Swaziland Law Society told IRIN, is government's assertion that Swazi customs have precedent over statutory law.

"This is patently nonsense, because Swazi custom permits marijuana smoking - against drug protocols signed by government with the Southern African Development Community - and until recently allowed murder to be committed against suspected witches and the first-born of a set of twins, because the infant was considered possessed by demons," he said.

Political observers feel the palace is only interested in one custom: the paramount rule of an absolute monarch from the Dlamini clan, which has been in force since the 15th century.

When he accepted a draft report for a new constitution, Mswati declared that the customs of the country would be the basis of the completed document. The constitutional report called for an increase in the power of traditional structures. Organised political opposition to palace rule would continue to be banned.

Lawyers for Human Rights, in its published statement that would have been considered seditious a decade ago, examined the constitutional report that will be the basis of a national governing document, and expressed alarm at some codicils, such as one that states: "It is the duty of every citizen to refrain from denigrating the kingdom by speaking badly about it, outside and inside the country."

"This means the monarchy is intolerant of dissent, and the law will be used against journalists who report what government critics have to say," said activist attorney Lucas Maziya.

At the same time, the reports drafters insist the constitution will have a bill of rights.
"You can't have a constitution that guarantees freedom of speech, and then prohibits people from criticising government," the editor of the Times of Swaziland newspaper group told IRIN.

The human rights lawyers questioned the sincerity of government's contention that in any conflict between statutory law and Swazi customs, the latter carries greater weight.

"The Prime Minister's assertion that there is a conflict between Swazi customary law and common law is based on clear misunderstanding of the laws of the land," the lawyers said in their statement.

The group cited the Swazi Courts Act of 1950, which states: "A Swazi Court shall administer the Swazi law and custom prevailing in Swaziland so far as it is not repugnant to natural justice or inconsistent with the provisions of any law in force in Swaziland."

The facts of the law that administers Swazi courts "should be within the government's knowledge," said the lawyers.

As for Mswati's contention that Swazi customs are of equal importance to statutory law, the society said: "It is common knowledge that Swazi law and custom is inferior to common law and statutory law."

The six South African Appeal Court justices resigned to protest government setting aside their decisions. The justice ministry is considering manning the court with local magistrates. While the three Swazi High Court justices, Josiah Matsebula, Stanley Maphalala and Thomas Masuku, have been at the forefront of criticism against government for subverting the rule of law.

Last week a delegation from the International Bar Association from the United Kingdom conducted a fact-finding mission to gauge government's commitment to the judicial system, but left the country without comment.

Lawyers for Human Rights Swaziland is a member of a new lobby group, the Coalition of Concerned Civil Organisations, headed mostly by business and legal organisations. Government has not recognised the coalition.