Commonwealth mediates between palace and judiciary

A Commonwealth mediation team at the weekend stepped into Swaziland's "rule of law" crisis by bringing King Mswati III together with five of the six South African judges who resigned from the country's Court of Appeal.

But while the government has agreed to temporarily abide by some of the court's earlier decisions, the judges said they would not return to work until the palace displayed a greater commitment to the rule of law.

There has been no Court of Appeal, the kingdom's highest judicial body, since the six-judge bench resigned en masse in November after the palace insisted that traditional authorities were more powerful than the courts.

Prime Minister Sibusiso Dlamini issued a statement on 28 November rejecting two appeal court rulings, and blasted the judges as foreigners influenced by an unnamed agenda to compromise Swaziland's absolute monarchy.

"Government is not prepared to sit idle and allow judges to take some of the king's powers, which were granted to him by the Swazi Nation," Dlamini said.

The appeal court had ruled that King Mswati had no authority to decree that certain criminal suspects could be jailed without bail until their trials. The prime minister also said the government would not recognise a court ruling affirming a contempt of court judgment against the police commissioner who prohibited the return of 200 people, evicted when they refused to be subjects of the king's brother, Prince Maguga Dlamini, appointed by Mswati to displace their chief.

Appeal court president, Judge R.N. Leon, condemned the government before leaving the country. "The suggestion that the judges of the Court of Appeal are influenced by forces outside the system and have not acted independently is rejected with the contempt it deserves. The statement that the government of Swaziland does not intend to recognise the two judgments of the Court of Appeal is intolerable," he said.

"The Swaziland Law Society, foreign governments, and all international judicial bodies have condemned the Swazi government for disrespecting court rulings the palace dislikes, and have called on government to reverse the prime minister's decision. They were ignored until the king went to England, and heard for the first time [of] the damage the crisis is causing Swaziland," a source with the law society told IRIN.

While visiting England last week, King Mswati was reportedly urged by Commonwealth officials to resolve the legal crisis.

"His Majesty's government wishes it known that it unconditionally retracts the [prime minister's] 28 November statement that the judges of the Court of Appeal were influenced by external forces in their work, and that they were not independent in forming those judgments in question," Attorney-General Phesheya Dlamini - himself embroiled in the rule of law controversy after he told high court judges to drop a case sensitive to King Mswati - said in a statement at the weekend.

"One really has to thank His Majesty for his wisdom in trying to resolve the crisis [by] requesting the Commonwealth secretariat to intervene - an indication that he is committed in resolving the impasse between the judiciary and executive," Commonwealth official, professor Ade Adefuye, said after the meetings.

However, negotiations to restart the Court of Appeal also include issues surrounding the government's firing of judicial officers.

Earlier this year the palace purged high court justice Thomas Masuku, whose independent stance had reportedly bothered royal authorities, and Chief Justice Stanley Sapire, who found opposition leader Mario Masuku innocent of sedition charges last August.

The Swaziland Law Society criticised as irregular the appointment of high court judges Kenneth Nkambule and John Shabangu, and urged Swazi lawyers to boycott court proceedings before these justices.

Arrest warrants were issued for two lawyers who refused to appear before Nkhambule and Shabangu.

The former appeal court judges demanded that the arrest warrants be withdrawn, but as of Monday this had not been done. The judges also insisted that all criminal defendants who had been granted bail be released within 48 hours. As of Monday afternoon, none had been set free.

The attorney-general said in his statement their release would be imminent, but gave no timetable.