Swaziland: Appointment and promotion of judges; Security of tenure

To safeguard the independence of the judiciary and the rights to equality before the law and equal access to the profession, international standards clarify that judges should be appointed though an open process on the basis of prescribed criteria that are based on merit and integrity, and without discrimination.{{1}} To ensure that the composition of the judiciary is essentially reflective of the population and to combat discrimination and ensure equality before the law, steps should be taken to ensure the appointment of qualified women and members of minority communities.{{2}}

As regards appointment criteria, the UN Basic Principles on the Independence of the Judiciary stipulate that persons selected must be “individuals of integrity and ability with appropriate training of qualifications in law”.{{3}}

An appropriate method of appointments of judges is a prerequisite for the independence of the judiciary{{4}} and is a means of ensuring equal access to the profession. On the procedure for judicial appointments, the UN Basic Principles on the Independence of the Judiciary provide that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives”.{{5}} The Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers, in relation to appointment and promotion of judges, have repeatedly recommended the use of bodies that are independent from the executive,{{6}} plural and composed mainly (if not solely) of judges and members of the legal profession,{{7}} and that apply transparent procedures.{{8}}

Promotions within the judiciary must be based on objective factors, particularly ability, integrity and experience.{{9}}

It is widely accepted that when judges have security of tenure in office they are less vulnerable to pressure from those who can influence or make decisions about the renewal of their terms of office. Accordingly, international standards prescribe that judges tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.{{10}}

While as described below in section 4, judges nonetheless remain accountable throughout their terms of office, as a necessary corollary to the guarantee of security of tenure, international standards specify that during their term of office, judges may be removed only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.

In Swaziland, the King controls judicial appointments.

The King appoints the Chief Justice and the other Justices of the Superior Courts, on the advice of a Judicial Service Commission (JSC).{{11}} The JSC is established by the Constitution as an “independent” body, neither itself nor its members subject to the direction or control of any person or authority in the exercise of its functions.{{12}}

However, the fact that all appointments to the JSC are under the King’s control, undermines the Constitutional guarantees of its independence. It is composed of the Chief Justice; the chairman of the Civil Service Commission; and four members selected by the King, at least two of whom must be legal practitioners with at least seven years’ practice.{{13}}

The JSC’s mandate comprises, inter alia, advising the King on the appointment, discipline and removal of judges and prosecutors; issuing recommendations on improving the administration of justice; and appointing court registrars.{{14}}

The Constitution prescribes that all judges of the Supreme and High Court must be of high moral character and integrity. In addition the prescribed qualifications for serving on the Supreme Court are:

(a) being or having been a legal practitioner, barrister or advocate in Swaziland or any part of the Commonwealth or the Republic of Ireland for at least fifteen years; or,

(b) being or having been a judge of the High Court in Swaziland or of a superior court with unlimited jurisdiction in civil and criminal matters in any part of the Commonwealth or Ireland for at least seven years; or,

(c) having been a legal practitioner and a judge (under the same conditions) for a combined period of at least fifteen years. For appointment to the High Court, the minimum time periods are ten years as a legal practitioner, five years as a superior court judge in the Commonwealth or Ireland, and ten years combined experience, respectively.{{15}}

While magistrates are not required to have legal training as a precondition for appointment, in practice most do hold a first degree in law.{{16}}

In June 2011, Justice Bheki Maphalala was appointed to the Supreme Court in contravention of the constitutionally prescribed requirements, as he had served for only two years on the High Court bench. There was, however, no legal challenge to the appointment.

Traditionally, those who served as Justices on the Supreme Court Justices came from other countries, primarily South Africa. This was considered to be necessary because the Supreme Court only sat for six weeks each year, and part-time judicial service would create conflicts of interest for virtually every experienced legal practitioner in Swaziland.{{17}}Pursuant to the 2005 Constitution, however, only citizens of Swaziland have been eligible for appointment as Justice of a superior court since 26 July 2012.{{18}}

In the period leading up to July 2012 there was a flurry of appointments of foreign nationals to the benches of the superior courts, including Chief Justice Ramodibedi (who had previously served on the basis of an interim contract). This was seen by some as a move to circumvent the Constitution.{{19}} Further, in May 2013 Mr Justice Benjamin Odoki, Chief Justice of Uganda, was appointed to serve on Swaziland’s Supreme Court.

Furthermore, Justice M.C.B. Maphalala and Justice Esther Ota were appointed as permanent judges of both the High Court and Supreme Court (with appointments to the latter bench in 2011 and 2012, respectively). This situation, where a judge sits both on a court and on the court that exercises appeal and review jurisdiction over the former, gives rise to (at least the perception of) a tendency not to criticize a peer who sits on the same bench. Thus, public confidence in the impartiality and independence of the court is compromised.

Appointing judges who do not meet the prescribed qualifications of the Constitution violates the rule of law. Failure to ensure an independent and fair procedure for the appointment of judges can not only undermine judicial independence but also the public’s confidence in independence and impartiality of the judicial system as a whole.

Under the Constitution of Swaziland, judicial appointees to a superior court are not subject to a probation period and the justices are guaranteed security of tenure.{{20}} Justices of superior courts may retire after attaining the age of sixty-five, and must do so at seventy (for those sitting on the High Court) or seventy-five (Supreme Court Justices).{{21}} In 2013, the High Court was seized with an application seeking to set aside a Supreme Court judgment on the grounds that Mr Justice A.M. Ebrahim, a citizen of Zimbabwe, sat in the panel of judges despite having attained the mandatory age of retirement.{{22}}

In addition to these constitutional guarantees of security of tenure, however, there is concern about other provisions of the Constitution that permit the Chief Justice to ask the King to make temporary appointments to the Supreme Court or High Court when needed. In such cases the appointment may not exceed a single renewable period of three months. Further, the Chief Justice acting on his own may make an acting appointment for a period of one month, which is not renewable.{{23}}

The fact that the Constitution contemplates “appointment of Justices of the superior court on contract” raises concerns regarding security of tenure for judges and the independence of the judiciary. Many judges have been hired under short-term contracts; some of them have eventually been appointed to a permanent judicial office, while others have not.

The Constitution furthermore states that “unless otherwise agreed between the contracting parties, a judge on contract shall vacate office at the end of the period provided in the contract”.{{24}} In the gap period between the expiration of his interim contract and his definitive appointment in June 2012, Chief Justice Ramodibedi continued to serve at the King’s pleasure.{{25}}

[[1]]1. [expand title=”Principle 10″]

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

[/expand] of the UN Basic Principles on the Independence of the Judiciary provides in part: “In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”. Also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h)-(j);”]

(h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicialselection shall safeguard the independence and impartiality of the judiciary.
(i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.
(j) Any person who meets the criteria shall be entitled to be considered for judicial office
without discrimination on any grounds such as race, colour, ethnic origin, language, sex,
gender, political or other opinion, religion, creed, disability, national or social origin, birth, economic or other status. However, it shall not be discriminatory for states to:

1. prescribe a minimum age or experience for candidates for judicial office;
2. prescribe a maximum or retirement age or duration of service for judicial officers;
3. prescribe that such maximum or retirement age or duration of service may vary with different level of judges, magistrates or other officers in the judiciary;
4. require that only nationals of the state concerned shall be eligible for appointment to judicial office.

[/expand] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 19.”]

The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

[/expand][[1]]

[[2]]2. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, UN Doc. A/66/289 (2011), para. 22-33, 92; Human Rights Committee, Concluding Observations on the United Kingdom, UN Doc. CCPR/CO/73/UK (2001), [expand title=”para. 15;”]

The Committee notes that, despite recent improvements, the proportions of women participating in public life, particularly at senior levels of the executive and judiciary and in Parliament, and also in the private sector, remain at low levels.

The State party should take necessary steps towards achieving an appropriate representation of women in these fields.

[/expand] Human Rights Committee, Concluding Observations on France, UN Doc. CCPR/C/FRA/CO/4 (2008), [expand title=”para. 26;”]

The Committee notes with concern that persons belonging to racial, ethnic or national minorities are rarely selected for representative bodies, including the National Assembly, and may occupy few positions in the police, the public administration and the judiciary. (articles 2, 25 and 26)

The State party should facilitate the participation of persons who are members of minority groups in publicly elected bodies, including the National Assembly and local government. In particular, the State party should seek ways to increase the number of candidates belonging to minorities included in the list of political parties running for elections. The appointment of persons from minority backgrounds as members of the police, public administration and the judiciary, is also important to assure the representation of the needs of varied communities in the planning, design, implementation and evaluation of policies and programmes affecting them.

[/expand] Human Rights Committee, Concluding Observations on Sudan, UN Doc. CCPR/C/79/Add.85 (1997), [expand title=”para. 21;”]

The Committee is concerned that in appearance as well as in fact the judiciary is not truly independent, that many judges have not been selected primarily on the basis of their legal qualifications, that judges can be subject to pressure through a supervisory authority dominated by the Government, and that very few non-Muslims or women occupy judicial positions at all levels. Therefore:

Measures should be taken to improve the independence and technical competence of the judiciary, including the appointment of qualified judges from among women and members of minorities. Training in human rights law should be given to all judges, law enforcement officers and members of the legal profession.

[/expand] Committee Against Torture, Conclusions and recommendations on Bahrain, UN Doc. CAT/C/CR/34/BHR (2005), [expand title=”para. 7(h);”]

The Committee recommends that the State party: …

(h) Fully ensure the independence of the judiciary and include female judicial officials in its judicial system;

[/expand] Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system, UN Doc. A/60/18 (pp. 98-108) (2005), [expand title=”para. 5(d);”]

5. States parties should pursue national strategies the objectives of which include the following: …

(d) To promote proper representation of persons belonging to racial and ethnic groups in the police and the system of justice;

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (2010), [expand title=”para. 8;”]

While noting the efforts made by the judiciary in the area of training, in the provision of interpreters, in the application of cultural expertise and in the appointment of bilingual staff to the courts to improve indigenous peoples’ access to the official system of justice, the Committee reiterates its concern about the problems experienced by indigenous peoples in gaining access to justice, particularly because the indigenous legal system is not recognized and applied and because of the lack of a sufficient number of interpreters and bilingual court officials who are knowledgeable about judicial proceedings. It regrets, in particular, that, when a number of judges were appointed to the Supreme Court in late 2009, no indigenous person was selected (art. 5 (a)).

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Colombia, UN Doc. CERD/C/304/Add.76 (1999), [expand title=”para. 13.”]

It is noted that indigenous and Afro-Colombian communities are underrepresented in State institutions, including in the legislature, the judiciary, government ministries, the military and the civil and diplomatic services.

[/expand][[2]]

[[3]]3. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10;”]

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(i)”]

The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.

[/expand] and [expand title=”Article A.4(k).”]

No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfil their functions.

[/expand][[3]]

[[4]]4. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 19.”]

[/expand][[4]]

[[5]]5. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10;”]

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h).”]

The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.

[/expand][[5]]

[[6]]6. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h) encourages “the establishment of an independent body”. Also e.g., Concluding Observations on the Congo, CCPR/C/79/Add.118, [expand title=”para. 14;”]

The Committee expresses its concern at the attacks on the independence of the judiciary, in violation of article 14, paragraph 1, of the Covenant. It draws attention to the fact that such independence is limited owing to the lack of any independent mechanism responsible for the recruitment and discipline of judges, and to the many pressures and influences, including those of the executive branch, to which judges are subjected.

The State party should take the appropriate steps to ensure the independence of the judiciary, in particular by amending the rules concerning the composition and operation of the Supreme Council of Justice and its effective establishment. The Committee considers that particular attention should be given to the training of judges and to the system governing their recruitment and discipline, in order to free them from political, financial and other pressures, ensure their security of tenure and enable them to render justice promptly and impartially. It invites the State party to adopt effective measures to that end and to take the appropriate steps to ensure that more judges are given adequate training.

[/expand] Concluding Observations on Liechtenstein, CCPR/CO/81/LIE, [expand title=”para. 12;”]

While noting that the constitutional amendments of 2003 sought to clarify the system of appointment and tenure of judges, the Committee is concerned about some elements of the new mechanism which may not be compatible with the principle of the independence of the judiciary (art. 14).

The State party should consider amending the mechanism for the appointment of judges to secure tenure, so as to guarantee fully the principle of the independence of the judiciary. The elements to be reviewed should include: the criteria for the appointment of members to the selecting body, the casting vote of the Princely House and the limited nature of tenure.

[/expand] Concluding Observations on Tajikistan, CCPR/CO/84/TJK, [expand title=”para. 17;”]

The Committee is concerned about the apparent lack of independence of the judiciary, as reflected in the process of appointment and dismissal of judges as well as in their economic status (art. 14, para. 1). The State party should guarantee the full independence and impartiality of the judiciary by establishing an independent body charged with the responsibility of appointing, promoting and disciplining judges at all levels and by remunerating judges with due regard for the responsibilities and the nature of their office.

[/expand] Concluding Observations on Honduras, CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]

The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

[/expand] Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]

The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]

The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

[/expand] Also see Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 11;”]

(a) The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects.

(b) Any methods of judicial selection shall scrupulously safeguard against judicial appointments for improper motives.

(c) Participation in judicial appointments by the Executive or the Legislature or the general electorate is consistent with judicial independence so far as such participation is not vitiated by and is scrupulously safeguarded against improper motives and methods. To secure the most suitable appointments from the point of view of professional ability and integrity and to safeguard individual independence, integrity and endeavour shall be made, in so far as possible, to provide for consultation with members of the judiciary and the legal profession in making judicial appointments or to provide appointments or recommendations for appointments to be made by a body in which members of the judiciary and the legal profession participate effectively.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 9.”]

The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.

[/expand][[6]]

[[7]]7. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29.”]

28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

[/expand] See International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 45-48.[[7]]

[[8]]8. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h);”]

[/expand]Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 32.”]

In this connection the Special Rapporteur refers to the appointment of the judges of the Supreme Court of Ecuador in 2005, which were made in accordance with his recommendations,31 in particular those referring to objective criteria to select candidates with a view to their independence, competencies and integrity. This ensured the transparency of the selection and appointment processes. Furthermore, for the first time in Ecuador’s history, public hearings were held at which backgrounds of the nominees could be openly scrutinized. This experience was qualified by the United Nations as a major example of good practices.

[/expand] See Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005), [expand title=”para. 5(d).”]

5. Various options for resolving the crisis are being discussed in Ecuador. Rather than expressing a view on the various alternatives, the Special Rapporteur believes that, in keeping with United Nations standards, the country should immediately arrive at a formula to govern the appointment of a Supreme Court which will include the following elements:…

(d) Machinery to ensure transparency in the selection of judges and enable members of the public to be aware of the candidates and express their opinions about them.

[/expand][[8]]

[[9]]9. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 13;”]

Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(o);”]

Promotion of judicial officials shall be based on objective factors, in particular ability,
integrity and experience.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 14.”]

Promotion of a judge shall be based on an objective assessment of the judge’s integrity, independence, professional competence, experience, humanity and commitment to uphold the rule of law. No promotions shall be made from an improper motive.

[/expand][[9]]

[[10]]10. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 12;”]

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(l);”]

Judges or members of judicial bodies shall have security of tenure until a mandatory
retirement age or the expiry of their term of office.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration),[expand title=”Article 16(b)”]

Subject to the provisions relating to discipline and removal set forth herein, judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their legal term of office.

[/expand] and [expand title=”Article 18(c);”]Retirement age shall not be altered for judges in office without their consent.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8;”]

A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.

[/expand][[10]]

[[11]]11. Constitution, [expand title=”S. 153(1).]

The Chief Justice and the other Justices of the superior courts shall be appointed by the King on the advice of the Judicial Service Commission.

[/expand][[11]]

[[12]]12. Constitution, [expand title=”S. 159(3).”]

In the exercise of its functions under this Constitution, the Commission or member of the Commission shall not be subject to the direction or control of any person or authority.

[/expand] It is of note that the provisions on the Commission’s independence are lacking in the JSC Act.[[12]]

[[13]]13. Constitution, [expand title=”S. 159(1) and (2).”]

(1) There shall be an independent Judicial Service Commission for Swaziland, hereinafter in this chapter referred to as “the Commission”.

(2) The Commission shall consist of the following-

(a) the Chief Justice, who shall be the chairman;

(b) two legal practitioners of not less than seven years practice and in good professional standing to be appointed by the King;

(d) two persons appointed by the King.

[/expand] There is an inconsistency between the Constitution and the Judicial Service Commission Act 1982 in this regard. The JSC Act lists as members the Chief Justice, the Chairman of the Civil Service Board and three persons appointed by the King on such terms and conditions as he may determine and two of whom possess such legal qualifications and experience as the King may determine (See JSC Act, [expand title=”S. 3(1)).”]

There is hereby established a Judicial Service Commission which shall consist of –

(a) the Chief Justice, who shall be the chairman;

(b) the Chairman of the Civil Service Board; and

(c) three persons (hereinafter referred to as “appointed members”) appointed by the King on such terms and conditions as he may determine and two of whom possess such legal qualifications and experience as the King may determine.

[/expand][[13]]

[[14]]14. Constitution, [expand title=”S. 160(2)-(3).”]

(2) Without derogating from the provisions of subsection (1), the Commission has power to appoint persons to hold or act in any of the offices mentioned under subsection (3) including the power to exercise disciplinary control over those persons and the power to remove those persons from office.

(3) The officers referred to in subsection (2) are –

(a) the office of –

(i) Registrar of the Supreme Court;

(ii) Registrar of the High Court;

(iii) Deputy Registrar of the Supreme Court;

(iv) Deputy Registrar of the High Court;

(v) Master of the High Court;

(vi) Deputy Master of the High Court;

(vii) Magistrate;

(b) such other offices connected with any court as Parliament may prescribe.

[/expand][[14]]

[[15]]15. Constitution, [expand title=”S. 154.”]

(1) A person shall not be appointed as a Justice of a superior court unless that person is a person of high moral character and integrity and in the case of an appointment to –

(a) the Supreme Court,

(i) that person is or has been a legal practitioner, barrister or advocate of not less than fifteen years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland; or,

(ii) that person is, or has served as, a Judge of the High Court of Swaziland or Judge of a superior court of unlimited jurisdiction in civil and criminal matters in any part of the Commonwealth or the Republic of Ireland for a period of not less than seven years; or,

(iii) that person is, or has served as, such legal practitioner, barrister or advocate as mentioned in paragraph (a)(i), and as such Judge as mentioned in paragraph (a)(ii) for a combined period of that practice and service of not less than fifteen years;

(b) the High Court,

(i) that person is or has been a legal practitioner, barrister or advocate of not less than ten years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland; or,

(iii) that person is, or has served as, such legal practitioner, barrister or advocate as mentioned in paragraph (b)(i), and as such Judge as mentioned in paragraph (b)(ii) for a combined period of that practice and service of not less than ten years.

[/expand][[15]]

[[16]]16. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 54.[[16]]

[[17]]17. International Commission of Jurists, Report of the Centre for the Independence of Judges and Lawyers: Fact-finding Mission to the Kingdom of Swaziland (June 2003), p. 17.[[17]]

[[18]]18. Constitution, [expand title=”S. 157(2).”]

Unless otherwise agreed between the contracting parties, a judge on contract shall vacate office at the end of the period provided in the contract.

[/expand][[18]]

[[19]]19. News24, Swaziland re-appoints judge Ramodibedi, 26 June 2012; Mail & Guardian, Mswati flouts Constitution to cement royal control of judiciary (10 May 2013). (accessed 9 June 2014).[[19]]

[[20]]20. Constitution, [expand title=”S. 155.”]

(1) A Justice of the Supreme Court of Judicature shall hold office in therms of this Constitution.

(2) The office of a Justice of a superior court shall not be abolished while there is a substantive holder of that office.

(3) In the case of a Justice of superior court, it shall not be necessary for the appointment to be subject to any period of probation.

[/expand][[20]]

[[21]]21. Constitution, [expand title=”S. 156(1).”]

Subject to the provisions of this Constitution or any other law, a Justice of a superior court –

(a) may retire at any time after attaining the age of sixty-five subject to a service of at least ten years;

(b) shall vacate office, in the case of –

(i) the Supreme Court, at seventy-five years;

(ii) the High Court, at seventy five years;

(iii) the Supreme Court and High Court, upon removal from office in terms of section 158.

[/expand][[21]]

[[22]]22. Bhokile Shiba v. Mr Justice Ebrahim and Others.[[22]]

[[23]]23. Constitution, [expand title=”S. 153(4).”]

Whether in respect of the office of the Chief Justice or office of any Justice of the superior courts, an acting appointment shall not exceed a single renewable period of three months.

[/expand][[23]]

[[24]]24. Constitution, [expand title=”S. 157(2).”]

Unless otherwise agreed between the contracting parties, a judge on contract shall vacate office at the end of the period provided in the contract.

[/expand][[24]]

[[25]]25. Mail & Guardian, Mswati flouts Constitution to cement royal control over judiciary (10 May 2013). (Last accessed 9 June 2014).[[25]]

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Swaziland: Appointment and promotion of judges; Security of tenure

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