By James Hall
MBABANE, Mar 15 2002 (IPS)

Swaziland’s court system has been called the nexus where “African traditional monarchy coexists with modernity”, in the words of one local lawyer who is often quoted, though his identity seems to have been forgotten by the people citing his wisdom.

The Swaziland Law Society acknowledges the sentiment in the organisation’s continuing attempts to reconcile the modern world of jurisprudence with the medieval mindset of some traditional authorities, which run sub-Saharan Africa’s last absolute monarchy.

Swaziland has a dual system of courts. Traditional trials are presided over by one of 350 palace-appointed chiefs or local elders, in branch cattle enclosures with participants usually attired in loin skins and beads. The modern court system subscribes to the Greco-Roman tradition bequeathed by the British, who ruled the country as a protectorate from 1902 to Independence in 1968.

Judges wear powdered wigs, and court etiquette is practised at the four-year-old ‘High Court Building’, on its summit, overlooking the capital Mbabane, the same way it is observed in London.

In addition to chiefs’ courts, Swazi National courts are presided over by traditional magistrates who follow an unwritten code called Swazi Law and Custom, handed down from generation to generation. Trails concern matters from stock theft to adultery and the ever-complex disputes involving the claims of multiple wives in a polygamous society.

It is not the traditional courts, whose jurisdiction is local matters, but the magistrate’s courts that are the focus of attention and controversy this year. Any crime more serious than minor theft and assault is usually assigned to magistrates courts, although the decision is at the discretion of regional directors of prosecution, under the office of the Director of Public Prosecutions in Mbabane, Lincoln Nga’rua.

Culminating in the High Court and the Court of Appeals, with the Industrial Court and lower magistrates’ courts below, the system’s independence is under pressure, if not under assault, by political forces.

“The royal leadership wants the courts to rule in their favour against political dissidents, and when the courts fail to do so the traditionalists think the courts are disloyal to the king, or even subversive,” says a source with the Swaziland Law Society.

The society’s president, attorney Sam Earnshaw, warned against political interference in the courts at last month’s opening of the High Court calendar. In 2001, the foreign ministry was kept busy responding to foreign envoys’ concerns, raised by their home governments, about government pressure on judicial independence.

“Swaziland may have an absolute monarchy, but its courts have always been free to dispense justice according to clearly defined laws,” said former U.S. Ambassador to Swaziland Gregory Johnson. “When this independence was perceived as coming under attack, it was a source of worry.”

One focus of controversy is Chief Justice Stanley Sapire, a South African who like many senior magistrates in Swaziland was brought to the country on contract.

Sapire last year ruled in favour of 200 families who were evicted from ancestral lands because King Mswati’s elder brother, Prince Maguga Dlamini, wanted to govern their area as chief. The residents were loyal to their chief of the time, since disposed by the palace, and they refused to acknowledge Prince Maguga. The army evicted the dissidents in a midnight raid that made international headlines, depositing the people in an open field 100 kilometres away without food or shelter.

Sapire ruled that the residents were illegally evicted on the basis of a flawed 1998 Swazi Administration Act decreed by the palace without parliamentary approval. The Court of Appeals subsequently concurred with Sapire’s ruling.

But government authorities are ignoring the court rulings, and the army has been ordered to enforce the will of Prince Maguga.

As punishment against Justice Sapire, King Mswati signed a royal decree last June, declaring a mandatory retirement age of 65 for judges. Sapire is 67.

“The law also banned any legal challenge against any decision made by any government official,” notes Doo Apane, an attorney with Swaziland branch of Women in Law of Southern Africa. “It was clearly an attempt by the authorities to stop having their decisions questioned in courts by commoners.”

After donor nations in Europe and North America cried foul, King Mswati rescinded the decree after one month.

Tension between government at Justice Sapire has not relented. This week Prime Minister Sibusiso Dlamini held secret talks with Sapire to mediate between the feisty, independent magistrate and royal authorities.

Prime Minister Dlamini was in defiance of the courts last month, which engendered a crisis, that also called into question the independence and effectiveness of the court system.

The prime minister fired the clerk to Parliament, Ben Zwane, for insubordination. The Industrial Court reinstated Zwane. Dlamini, whose office controls the police, had officers evict Zwane from parliamentary premises; despite Zwane’s flashing of a court order allowing him to stay.

“A contempt of court order was issued against the prime minister, but because he controls the police, no one arrested him,” says court reporter Sonnyboy Fakudze.

The Industrial Court backed down, calling only upon the prime minister to apologise for contravening its order, which he did. Zwane has not returned to his job, and the matter is unresolved.

“A balance has been struck between both sides,” says attorney Fikile Mthembu. “The courts want rule of law, but they will only go so far with the authorities.”

Other judicial observers say government also shows restraint, as when the decree prohibiting court cases against authorities was withdrawn.

“Government knows the international community is watching, and traditionalists who want to muzzle the ‘white man’s law’ that prevents them from silencing their opponents and doing what they want are reasoned with by more moderate voices,” says a Swazi attorney.

Court observers agree that this balancing act has lasted since 1973, when the monarchy assumed ultimate judicial authority, and this indicates the palace’s awareness that statutory law and not only customary law is needed in a modern Swaziland.

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