UNION AFRICAINE
AFRICAN UNION
UNIAO AFRICANA
African Commission on Human & Peoples 'Rights
Commission Africaine des Droits de /'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Western Region ,P. 0 . Box 673, Banjul, The Gambia
Tel: (+220) 4410505/ (+220)4410506; Cellphone: (+220) 2304361
E-mail: au-ban ·u t africa-union.or, • africancommission
ahoo.com· Web www.achpr.org
Communication 406/11
Law Society of Swaziland
V
The Kingdom of Swaziland
Adopted by the
African Commission on Human and Peoples• Rights
during the 2'7'1- Extra-Ordinary Session, from 19'1' February to o4"' Maren 2020
Banjul, The Gambia
Communication 406/11: Law Society of Swaziland v. The Kingdom of Swaziland
SUMMARY OF THE COMMUNICATION
1. The Complaint is submitted against the Kingdom of Swaziland1 (the Respondent
State), now officially the Kingdom of Eswatini, by the Law Society of Swaziland (the
Complainant), representing all lawyers whose clients are directly affected by the
Practice Directive and the Constitutional Provision (the Victims)." 2
2. The Complainant submits that on 16 June 2011, the Chief Justice of the Kingdom of
Swaziland, acting in his capacity as the Head of the Respondent State's Judiciary,
issued Practice Directive No. 4/2011 (the Practice Directive), which banned all Courts
in the country from receiving or entertaining any summons brought against His
Majesty the King or the Office of the King as respondent. The Complainant states that
the Chief Justice cited as his authority Section 11 of the Constitution, which makes the
King or Ingwenyama immune for all civil and other process.
3. It is alleged further by the Complainant that the Practice Directive has had the effect
of restricting the rights of any citizen in the Kingdom who may have entered into
purely commercial relations with the Office of the King. The Complainant notes that
the Office of the King employs over 1000 members of staff, and further the Office of
the King has entered into contracts with citizens, both legal and natural, such as
buying land and developments from citizens, with attendant legal consequences.
4. The Complainant cites the specific case which led to issuance of the Practice Directive.
The Complainant states that M.V.N Marketing Supply (Pty) Ltd., which is owned by
a Swazi citizen, had leased a Guest House to the Office of His Majesty; however the
Office of the King fell into arrears and ignored several messages and appeals for
payment of the arrears of rent. The Complainant states that although the Office of the
King eventually paid the arrears of rent after repeated pressure and an agreement was
reached for the Office of the King to purchase the Guest House from the private
owner. After paying the initial part of the amount agreed upon, the Office of the King
was not forthcoming with the remaining substantial amount of the agreed purchase
price.
5. The Complainant submits that after repeated but unsuccessful reminders to the Office
of the King, the owner of M.V.N Marketing Supply (Pty) Ltd. decided to seek legal
redress for the unpaid amount, initially bringing a suit against the Minister of Finance
who was the Chairperson of the Board of Trustees responsible for the assets of the
Office of the King. The Complainant avers that the Attorney General advised that the
proper party to the suit was of the Office of the King, and based on this advice the
owner of M.V.N Marketing Supply (Pty) Ltd. proceeded to sue the Office of the King
as respondent in the matter.
1
2
The Kingdom of Eswatini ratified the African Charter on Human and Peoples' Rights on 15 Septemb
Complainant Submissions on Admissibility, paragraph 3.17
6. The Complainant states that it was soon after M. V.N Marketing Supply (Pty) Ltd. filed
its action against the Office of the King, that the Chief Justice's Practice Directive No.
4/2011 was issued, which effectively nullified the proceedings.
7. The Complainant submits that the Practice Directive deprives the right of aggrieved
party to seek redress from courts of law against the Office of the King, infringes on
the right to non-discrimination in that parties suing other parties are entitled to seek
redress from courts, while those victimised by the Office of the King cannot. The
Complainant further submits that the Practice Directive violates the equal protection
clause which guarantees equality before the law, and violates the sacred principle of
the independence of the judiciary.
8. The Complainant alleges further that in response to the growing crisis, it decided to
send a petition to the Judicial Service Commission of the Respondent State, seeking
disciplinary action against the Chief Justice for alleged misconduct. The Complainant
states that the Judicial Service Commission, which is headed by the Chief Justice of
the Kingdom, is the body constitutionally mandated to receive complaints against
judicial officers. The Complainant alleges that despite all efforts made, the Judicial
Service Commission declined to accept the petition against the Chief Justice.
Articles alleged to have been violated
9. The Complainant alleges that Articles 1, 2, 3, 7(1)(a) and 26 of the African Charter on
Human and Peoples' Rights (the African Charter) have been violated.
Prayers
10. The Complainant seek the following reliefs:
(a) Decision of the Commission through its Bureau to treat this situation as constituting
a 'matter of emergency' pursuant to Rule 79 of the Rules of Procedure of the African
Commission and take necessary measures contemplated under this Rule and other
relevant provisions of the Charter; and
(b) Make appropriate decisions with regards to this Complaint in line with the relevant
provisions of the Charter.
Procedure
11. The Complaint was received at the Secretariat on 10 October 2011. The Commission
was seized of the Communication during the so th Ordinary Session, held in Banjul,
The Gambia, from 24 October to 05 November 2011; however declined the request for
Provisional Measures, per the prayer for "the Commission to treat this situation as
constituting a 'matter of emergency' pursuant to Rule 79 of the Rules of Procedure of
the African Commission." The Parties were informed of the seizure on 21 Nov_1;:~~a.
2011, with the Complainant requested to submit its arguments on Admi
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12. On 26 September 2012, the Complainant requested an extension of time within which
to submit its arguments on Admissibility, which was granted in accordance with Rule
113(2) of the Commission's Rules of Procedure. On 31 October 2012, the Complainant
transmitted submissions on Admissibility to the Secretariat, which was transmitted to
the Respondent State on 02 November 2012, and receipt for which was acknowledged
by the Respondent State via email on 05 November 2012.
13. On 29 April 2013, the Respondent State sent a Note Verbale to the Secretariat
requesting an extension of time to submit arguments on Admissibility, citing late
receipt of relevant documents as the justification for this request. On 10 May 2013, the
Secretariat informed the Parties of the extension given to the Respondent State.
14. Through a Note Verbale dated 10 May 2013, the Secretariat made a final request for
the Respondent State to submit its observations and arguments on Admissibility;
however no response was received, and in the light of this, the Commission decided
to proceed with consideration of the Communication's Admissibility.
15. The Commission adopted a decision on Admissibility during the 16th Extra-Ordinary
Session, held in Kigali, Rwanda, from 20 to 29 July 2014, and the Parties were informed
of the Commission's decision on Admissibility on 28 August 2014, with the
Complainant requested to submit arguments on the Merits of the Communication.
16. On 21 January 2015, the Complainant requested an extension of time to file
submissions on the Merits of the Communication, in accordance with Rule 113. On 02
March 2015, the Complainant transmitted submissions on the Merits to the Secretariat
via email, indicating that additional supporting documents would be sent. On 21
October 2015, the Complainant indicated, via email, that further submissions on the
Merits would not be filed in support of the Communication.
17. On 21 October 2015, the Complainant's submissions on the Merits were transmitted
to the Respondent State via courier. On 30 October 2015, the Respondent State wrote
to the Secretariat, indicating that the Complainant's submissions on the Merits had
not been received. On 25 November 2015, the Secretariat transmitted the relevant
Notes Verbale and the Complainant's submissions on the Merits once again to the
Respondent State via courier.
18. On 18 December 2015, the Respondent State requested an extension of time to file
submissions on the Merits of the Communication, in accordance with Rule 113. The
Respondent State filed submissions on the Merits on 06 August 2016, which were
transmitted to the Complainant with the request for additional written information or
observations. The Respondent State submitted supplementary heads of argument on
the Merits on 14 December 2017, which were transmitted to the Complainant.
19. Informational letters were tra
62°d to the 65th Ordinary Sess·
Parties of the Communication from the
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ADMISSIBILITY
The Complainant's Submissions on Admissibility
20. The Complainant submits that the Communication satisfies all the Admissibility
requirements set out in Article 56 of the African Charter and presents arguments in
support of that submission.
21. In relation to Article 56(1) of the African Charter, the Complainant submits that the
author, the Law Society of Swaziland, is identifiable since it is a recognised statutory
body in Swaziland which represents all lawyers whose clients are directly affected by
the Practice Directive and the constitutional provision. The Complainant therefore
argues that the Communication satisfies the requirements in Article 56(1) of the
Charter.
22. With regards to Article 56(2) of Charter, the Complainant avers that the
Communication catalogues a number of provisions of the African Charter which were
violated by the Respondent State, a State Party to the African Charter. This, the
Complainant argues, amounts to the establishment of a prima Jacie case in line with
the recognized jurisprudence of the Commission. The Complainant argues further
that the Communication is compatible with the African Charter and the Constitutive
Act of the African Union (AU) and meets the rationae materiae jurisdiction of the
Commission. The Complainant states that the Communication tl1erefore satisfies the
requirement in Article 56(2) of the African Charter.
23. Regarding Article 56(3) of the African Charter, the Complainant submits that the
requirement is met because the Communication is presented in a polite and respectful
manner, without using language that is disparaging or insulting.
24. In relation to Article 56(4) of the African Charter, the Complainant submits that the
allegations in the Communication are based on information acquired from a variety
of sources including legal documents, direct monitoring of the situation, official
letters, press releases and witness testimony obtained through interviews. Hence, the
Complainant submits that the facts are not based exclusively on news disseminated
through the mass media, which therefore satisfies the requirements of article 56(4) of
the Charter.
25. In relation to Article 56(5) of the African Charter, the Complainant submits that the
requirement to exhaust domestic remedies is satisfied because the exceptions to this
requirement apply to the Communication. The Complainant submits further that the
exceptions apply because: the Respondent State is aware of alleged violations but has
failed to take remedial action; the ouster of the jurisdiction of the courts amounts to
unavailability of domestic remedies; and that domestic remedies in the circums
of this case are impractical and ineffective. The Complainant further argues ge
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that the involvement of the Respondent State's Chief Justice and Head of the Judiciary
renders domestic remedies ineffective.
26. Arguing that the exhaustion of domestic remedies requirement is premised on the
principle that the Respondent State should have the first opportunity to redress an
alleged wrong, the Complainant contends that the Respondent State had ample
opportunity to redress the alleged violations, but failed to do so. The Complainant
argues that the Commission recognizes that notice of violation can be brought to the
attention of a State by means other than legal means. In support of its position, the
Complainant cites the Commission's decision in Free Legal Assistance Group and
Other v. Zaire3 and in Amnesty International and Others v. Sudan. 4
27. The Complainant contends further that domestic remedies are non-existent because
there was an indication that no cause of action involving the King, his interests, or his
Office could be entertained anywhere in Swaziland. In this regard Complainant cites
the letter received from the Office of the Registrar of the High Court of Swaziland,
stating that the case filed on behalf of M.V.N Marketing Supply Ltd could not be
entertained because of the instruction from the Chief Justice, as contained in the
Practice Directive.
28. The Complainant submits further that the petition filed with the Judicial Service
Commission, seeking the removal of the Chief Justice on the grounds that the Practice
Directive and other actions of the Chief Justice which amounted to a violation of the
Swazi Constitution and the State's international human rights commitments,
provided opportunity for the Respondent State to remedy the alleged violations. The
Complainant asserts that the Judicial Service Commission is a constitutionally
established administrative body that is competent to consider the complaint against
the Chief Justice and other concerns articulated by the Complainant.
29. It is the Complainant's further submission that its concerns regarding the Chief
Justice's actions were also brought to the attention of other relevant state authorities
such as the Minister of Justice, the Chairperson of the Civil Service Commission, the
Speaker of the House of Parliament and the President of the House of Senate, but
resulted in no remedial action on the part of the Respondent State. The Complainant
avers further that the crisis occasioned by the actions of the Chief Justice attracted
media and civil society attention resulting in the issuance of press releases and calls
on the Government of Swaziland to take action, but none of these resulted in any
positive remedial action despite the fact that it resulted in the signing of an agreement
between the Complainant and the Judicial Service Commission; this was signed in
order to put in place clear guidelines to be followed on how the judicial crisis was to
be dealt with. The Complainant submits that in accordance with the Commission's
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Communications 25/89; 4 7/90; 56/91 and I 00/93: Free Legal Assistance Group and Other v. Zaire (I 9
Communications 48/90, 50/91 , 52/91 and 89/93: Amnesty International and Others v. Sudan ( 1999)
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jurisprudence, the Respondent State should be seen as forfeiting its prerogative to
deal with the case domestically. 5
30. The Complainant contends further that Section 11 of the Respondent State's
Constitution, upon which the Practice Directive is based, ousts the jurisdiction of the
courts in relation to the King; however the Complainant argues that the constitutional
provision does not bar filing of process against the King or his Office. Rather it merely
directs the Court that when such a case is filed, the Court must pronounce itself in
terms of Section 11 of the Constitution and dismiss a potential claim on the basis of
the immunity of the King from legal suit. 6 The Complainant argues that the additional
effect of Practice Directive No. 4 is to make Section 11 of the Constitution wholly
unavailable for cases directly or indirectly involving the King's interest. Citing the
Commission's jurisprudence, the Complainant argues that in the face of the ouster,
domestic remedies that ought to be exhausted are non-existent since the authority of
the courts has been undermined by a combination of the consfitutional prescription
and a directive from the Head of the Judiciary.7
31. The Complainant's argues further that while it is possible to imagine judicial action
to seek a constitutional review of Practice Directive No. 4, and also to challenge the
conformity of Section 11 of the Swazi Constitution with the rule of law, such an action
"would be a sheer waste of time given the lack of effective separation of power" 8 in
the Respondent State. This, the Complainant contends, is because the powers of the
King "as an absolute monarch is sacred, sacrosanct and unquestionable," such that
there is the perception that the King has a strong influence on the work of the
judiciary. The Complainant argues that in this context, and from a reading of Practice
Directive No. 4, any application related to the King's immunity would simply not be
received by the Registrar, let alone be allocated to a judge or examined in a court.
32. It is the Complainant's further contention that it is left with a possible resort to the
King, but that such an action will be doomed and would also not qualify as a domestic
remedy to be exhausted.
33. The Complainant argues that even if local authorities were willing to entertain the
present matter of concern, no practical or effective remedies could be available to the
victims in the context of the complaint as required by the Charter.9 The Complainant
submits that the immunity of the King as set out in Section 11 of the Constitution and
reinforced by Practice Directive No. 4 renders domestic remedies non-existent for any
violations attributable to the King.
5
In this regard, the Complainant cites Communication 155/96: Social and Economic Rights Action Course (SERAC) and
Another v. Nigeria (200 I) ACHPR
6
Complainant Arguments on Admissibility, paragraph 3.8, pg.9
7
The Complainant cites Communication 129/94: Civil Liberties Organization v. Nigeria (2000) ACHPR and
Communication 147/95 & 149/96: Dawda K Jawara v. The Gambia (2000) ACHPR
8
Complainant Arguments on Admissibility, paragraph 3.13 , pg.12
9
In support of this argument, the Complainant cites Communication 147/95-149/96: Dawda K.
(2000) ACHPR, paragraph 32, and Communication 275/2003: Article 19 v. Eritrea (2007) AC
6
34. The Complainant argues further that the ineffectiveness of domestic remedies is
demonstrated by the fact that it is the Head of the Judiciary that has enacted the
offending Practice Directive. The Complainant therefore submits that there are no
domestic remedies to be exhausted and the Communication satisfies the requirement
in Article 56(5) of the African Charter.
35. With regards to Article 56(6) of the African Charter, the Complainant submits that the
Communication has been submitted within a reasonable time from the time when
domestic remedies were exhausted or deemed exhausted, noting that the judicial
crisis escalated in June 2011, and it was in August 2011 that the Complainant was
convinced that local remedies were unavailable and ineffective. The Complainant
argues that unlike the European Convention on Human Rights and Fundamental
Freedoms or the American Convention on Human Rights which poth define a specific
timeframe, the African Charter requires each case to be treated on its own merit, citing
the Commission's decision in Darfur Relief and Documentation Centre v. Sudan. 10
In any case, the Complainant argues that the requirement in Article 56(6) of the
Charter has been satisfied because the Communication was submitted three months
after the applicant became convinced that domestic remedies were unavailable.
36. In relation to Article 56(7) of the African Charter, the Complainant submits that the
Communication satisfies the requirement because the Communication has not
previously been submitted to any other procedure of international investigation or
settlement. The Complainant submits further that the Communication does not deal
with a matter that has already been settled in any form.
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
37. The Commission recalls that Article 56 of the African Charter sets out seven
requirements that a Communication brought under Article 55 of the African Charter
must satisfy in order to be Admissible. Those requirements apply conjunctively and
cumulatively.11 It is the Complainant's submission that the present Communication
satisfies all the requirements for Admissibility under Article 56 of the African Charter.
38. Despite the fact the Commission has on numerous occasions brought this complaint
to the attention of the Government, in addition to requests for the Respondent State
to submit its observations on Admissibility in accordance with Rule 105(2), no
response has been received by the Commission. In such cases, the Commission has
held that in the absence of a substantive response from the Respondent State, it must
decide on the facts provided by the Complainants and treat them as given. 12
Accordingly, the Commission undertakes the following analysis on Admissibility on
the basis of the information supplied by the Complainant.
°Communication 3 10/2005 (2009) ACI-IPR
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11
See Communication 304/2005:
See Communication 25/89, 47
276/03 and Communication 292
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egal (2006) ACHPR, paragraph 38
munication 60/91, Communication 159/ 1996, Communication
7
39. In relation to the requirement in Article 56(1) of the African Charter which provides
that Communications should 'indicate their authors even if the latter requests
anonymity, the Commission notes that the identity and the address of the
Complainant are indicated on the Communication, and accordingly finds that the
Communication satisfies Article 56(1) of the Charter.
40. With respect to Article 56(2) of the African Charter, the Commission notes the
Complainant's argument that a prima facie case has been established and the
Communication meets the rationae materiae jurisdiction of this Commission. The
Commission also notes the Complainant's submission that the Communication is
compatible with both the African Charter and the Constitutive Act of the AU.
41. In accordance with Article 56(2) of the African Charter,- the Communication must
show a prima facie case and must be compatible with both the AU Constitutive Act
and the African Charter. In relation to the present Communication, the Commission
notes that it alleges that Articles 2, 3, 7and 26 of the African Charter have been
violated. The alleged violations fall within the rationae materiae jurisdiction of the
Commission. Further, the Respondent State is a State Party to the African Charter,
therefore the Communication falls within the rationae personae jurisdiction of the
Commission. Given that Communication is not incompatible with either the AU
Constitutive Act or the African Charter, and it indicates a prima Jacie violation of the
African Charter, the Commission finds that the Communication satisfies Article 56(2)
of the African Charter.13
42. With respect to Article 56(3) of the African Charter, which provides that
Communications shall be considered if they 'are not written in disparaging or
insulting language directed at the State concerned and its institutions or to the
Organisation of African Unity, the Commission does not find any insulting or
disparaging language in the Communication, as submitted by the Complainant, and
accordingly the Commission finds that Article 56(3) of the Charter is satisfied.
43. In relation to Article 56(4) of the African Charter, the Commission notes the
Complainant's submission that the Communication is based on information provided
from a variety of sources including legal documents, direct monitoring of the
situation, official letters, press releases and witness testimony obtained through
interview. Therefore the Commission notes that the present Communication is not
based exclusively on news disseminated through the mass media and finds that
Article 56(4) is satisfied by the Communication.
44. With regards to Article 56(5), the Commission recalls that Article 56(5) requires
Communications to be "sent after exhausting domestic remedies, if any, unless it is
obvious that this procedure is unduly prolonged." As the Commission has previously
observed, this requirement is based on the principle that" the Respondent State must
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first have an opportunity to redress by its own means within the framework of its own
domestic legal system, the wrong alleged to have been done to the individual." 14
45. The Commission notes the Complainant's submission that the requirement in Article
56(5) of the African Charter is satisfied because exceptions to the requirement to
exhaust domestic remedies apply to the present Communication. The Complainant
invokes the exception on the grounds that effective domestic remedies are nonexistent. The Complainant further submits that if they are available, domestic
remedies are impracticable and ineffective because of the involvement of the Chief
Justice in the issuance of the Directive, such that the courts are unable to remedy the
violation even if they wanted to.
46. In making its determination on whether the exceptions to the domestic remedies rule
applies to the present Communication, the Commission notes that, as has been
developed in its jurisprudence, the three major criteria for determining this rule is that
the remedy must be available, effective and sufficient.15 FurJher the Commission
considers that a remedy is available if the petitioner can pursue it without
impediment. 16
47. In the present Communication, the Commission notes that the Practice Directive No.
4/2011 provides as follows:
(2) The Registrar of the High Court and/or all those entrusted with receipt of court
processes in this country are hereby directed to refuse to accept any summons or
application specified in 2(1) above.17
48. These provisions clearly demonstrate that domestic remedies were not available,
given that the effect of the Practice Directive No. 4/11 ensured that the Complainant
did not have any avenue for legal redress in suits against the Office of the King.
Furthermore, in light of the fact that the Respondent State did not submit observations
on Admissibility to the Commission, in order to establish that effective legal remedies
were available to the Complainant, the Commission makes the determination on the
basis of the uncontested information provided by the Complainant.18 Therefore, given
that the Commission does not have information which contradicts the Complainant's
arguments on Article 56(5), the Commission finds that local remedies were not
available in the present Communication.
49. In light of the Commission's finding that local remedies are not available in respect of
the present Communication, the Commission finds further that an exception to the
requirement to exhaust domestic remedies applies and that Article 56(5) of the African
Charter is therefore satisfied by the Communication.
50. With regards to Article 56(6) of the African Charter, which provides that the
Commission shall consider Communications which "are submitted within a
reasonable period from the time domestic remedies are exhausted or from the date
the Commission is seized of the matter," the Complainant submits that the
Communication was brought to the Commission within three months of its conviction
that effective and sufficient domestic remedies were not available. As the Commission
has previously noted, generally, the requirement of timeliness in Article 56(6) of the
Charter is dependent on the exhaustion of domestic remedies envisaged in Article
56(5) of the African Charter. 19
51. In the present Communication, Practice Directive No. 4/11 was issued on 16 June
2011, an official complaint was lodged with the Judicial Service Commission on 31
July 2011, for which a response was received on 02 August 2011, convincing the
Complainant that local remedies were unavailable and ineffective. The Complainant
subsequently submitted the Complaint to the Commission on 10 October 2011. In this
regard, the Commission is satisfied that the three months, from August to October
2011, constitutes a reasonable timeframe within which to submit a Communication to
the Commission. The Commission therefore finds that Article 56(6) of the African
Charter is satisfied.
52. In relation to Article 56(7) of the African Charter, the Commission notes that, as stated
by the Complainant, the issues and claims in the Communication have not been
brought before, or settled by any other international forum. Accordingly, the
Commission finds that Article 56(7) of the African Charter has been satisfied.
53. Accordingly, the Commission declares this Communication admissible.
THE MERITS
The Complainants' Submissions on Merits
54. In the merits submission, the Complainant initially provides a brief outline of the facts
alleged in the Complaint, stating that it will be shown that Practice Directive
No.4/2011 (the Practice Directive) which was issued by the Chief Justice, and Section
11 of the Constitution individually and jointly sought to oust tl1e jurisdiction of all
courts in Swaziland in any case in which the King is a plaintiff or respondent. The
Complainant contends that the issuance of the Practice Directive is premised on
Section 11 of the Constitution, and further that the Practice Directive was issued to
stop legal practitioners and their clients from issuing summons or applications for
civil claims against the King.
Alleged Violation of Article 1 and 2
19
Communication 322/2006: Tsikata v. Ghana (2006) ACHPR, paragr
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55. TI1e Complainant avers that, as a State Party to the African Charter, Swaziland has
obligations under Articles 1 and 2. Article 1 describes the obligations of States Parties
to the African Charter, in relation to the rights which must be given effect. It is further
averred that Article 1 should be read together with the first portion of Article 2, which
provides that "every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without distinction of
any kind."
56. The Complainant submits that Article 1 places an obligation on States Parties to
recognize and give effect to the rights in the African Charter, whilst on the other hand
individuals are entitled to enjoy the guaranteed rights. The Complainant further
contends that the Practice Directive has the negative effect of interfering with the
rights guaranteed in the African Charter, while State Parties have an obligation not to
undermine human rights provisions guaranteed in a domestic Constitution's bill of
rights and international human rights standards ratified by the State concerned.
Alleged Violation of Article 3
57. The Complainant submits that Section 11 of the Constitution and the Chief Justice's
Practice Directive violate Article 3 of the African Charter, which guarantees equality
before the law and provides for equal protection of the law. In effect, the Practice
Directive and Section 11 of the Constitution effectively place the King, and people
who purport to act for and through the King, above the law which denies ordinary
citizens the right to have any dispute they have with the King resolved by competent
national organs.
58. The Complainant cites the case of Nyathi v. MEC Department of Health Gauteng
Province,20 in which the applicant was challenging section 3 of the State Liabilities Act
which precluded judgment creditors from attaching state property. The
Constitutional Court stated the following: "Section 3 of the State Liabilities Act was a
relic of a legal regime which was pre-constitutional and placed the State above the
law: a state that operated on the premise that the King can do no wrong." The
Constitutional Court made reference to the case of Poindexter v. Greenhow 114 US
270 (1885), regarding state immunity and a democratic government, noting the
following: "Of what avail are written constitutions whose bills of rights for the
security of individual liberty have been written[ ... ] if their limitations and restraints
upon power may be overpassed with impunity by the very agencies created and
appointed to guard, defend and enforce them[ ... ] And how else can these principles
of individual liberty and right be maintained, if when violated the judicial tribunals
are forbidden to visit penalties upon individual offenders, who are the instruments of
wrong, whenever they impose the shield of the state?"
59. The Complainant avers that the blanket ban on litigation, through the Practice
Directive issued by the Chief Justice, is an unusual attack on the independence of the
°CCT 19/07 [2008] ZAC ,
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Judiciary, and the effect is that ordinary citizens are denied equal protection of the
law as provided in Article 3. Section 11 of the Constitution and the Practice Directive
make a differentiation between an ordinary citizen and the King in relation to the right
of access to the Courts. This not only breaches the principle of equality before the law,
but also deprives ordinary citizens the right to equal protection and benefit of the law.
Alleged Violation of Article 7(1)(a)
60. The Complainant submits that the right under Article 7(1)(a) is said to comprise the
right to an appeal to competent national organs against acts violating the fundamental
rights, as recognized and guaranteed by conventions, law, regulations and customs
in force. In essence, when rights are violated, individuals have a right to seek a judicial
remedy. The Complainant submits that, if the ability of aggrieved citizens to obtain
judicial remedies is vitiated, Article 7(1)(a) will have been violated.
61. The Complainant cites Civil Liberties Organization v. Nigeria21 in which the
Commission held that the ousting of jurisdiction of the court of Nigeria constituted
an attack of incalculable proportions against Article 7. The Commission further held
that an attack on the jurisdiction of the court was especially invidious because, while
it was a violation of human rights itself, it permitted other violations of rights to go
un-redressed.
62. The Complainant refers to the case of Mike Campbell and Others v. Zimbabwe,22
which provides that it is settled law that the concept of the rule of law embraces at
least two fundamental rights, namely the right of access to the courts and the right to
a fair hearing before an individual is deprived of a right, interest or legitimate
expectation. The case also states that any law or official practice which purports to
deprive the courts of the power to so discharge that mandate is inimical to the
principle of the rule of law, which requires that citizens must have access to the courts
and have the ability to institute civil.proceedings before courts.
63. The Complainant also cites Chief Lesapo v. North West Agricultural Bank and
Another,23 in which the Constitutional Court of South Africa held that an important
purpose of Section 34 of the Constitution, which the Complainant contends is the
equivalent of Article 7 of the African Charter, is to guarantee the protection of the
judicial process to persons who have disputes that can be resolved by law.
64. The Complainant avers that while Article 7 of the African Charter provides a platform
to litigants who seek to have their disputes resolved through application of the law,
the Practice Directive and Section 11 of the Constitution remove the platform in
disputes where the King is involved. This prevents litigants who wish to sue the King
from approaching any court in Swaziland to enforce their rights, which is a violation
of the litigant's right to access courts.
21
Communication 129/94 ( 1995) A CHPR
22
Complainant submissions on the Merits, paragraph 4.6
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Alleged Violation of Article 26
65. The Complainant submits that the Practice Directive and Section 11 of the
Constitution threaten the independence of the judiciary, as guaranteed in Article 26
of the African Charter.
66. The Complainant submits that, once the courts in Swaziland can no longer protect the
rights of ordinary citizens against powerful individuals like the King, judicial
independence is seriously interfered with.
67. The Complainant avers that, as stated by the European Court of Human Rights, a
court must be independent both of the executive branch of government, as well as the
parties to the proceedings.24
68. The Complainant further submits that the Inter-American Commission, in elucidating
on the notion of judicial independence, stated that the requirement of independence
necessitates that courts be autonomous from the other branches of government, free
from influence, threats or interference from any source and for any reason.
69. In the present case, the Complainant avers that it is the Chief Justice, who functionally
is supposed to be the custodian of judicial independence, who is interfering with the
proper functions of the judiciary by ousting the jurisdiction of the courts to deal with
cases in which the King is respondent or defendant.
70. The Complainant cites the case of Papageorgiou v. Greece, in which the European
Court of Human Rights ruled that the adoption of a law by parliament, in which it
declared that certain cases could not be examined by the courts and ordering the
ongoing legal proceedings to be suspended, constituted a violation of the
independence of the judiciary.2s
71. The Complainant also cites Civil Liberties Organization v. Nigeria, in which the
Commission held that" Article 26 of the African Charter reiterates the rights enshrined
in Article 7 but is more explicitly about States Parties' obligations to guarantee the
independence of the Courts and allow the establishment and improvement of
appropriate national institutions entrusted with promotion and protection of the
rights and freedoms guaranteed by the present Charter. While Article 7 focuses on the
individual's right to be heard, Article 26 speaks of the institutions, which are essential
to give meaning and content to that right. This Article clearly envisions the protection
of the courts, which have traditionally been the bastion of protection of the individual
rights against the abuses of state power.
Limitation of Guaranteed Rights
24
25
Ringeisen v. Austria, ECTHRjudgment, 16 Jul
ECtHRjudgment of 22 October 1997, Series 1
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72. The Complainant submits, with regards to Article 27(2) of the African Charter which
provides a general limitation clause in respect of all the rights, the Commission has
held that only legitimate reason for limitation to the rights and freedom of the African
Charter are to be found in Article 27(2) of the African Charter, and that the onus is on
the State to provide justification for limiting rights.
73. In this regard, the Complainant cites Media Rights Agenda and Constitutional
Rights Project v. Nigeria26 in which the Commission held: "The reasons for possible
limitation must be founded in a legitimate state interest and the evils of limitations of
rights must be strictly proportionate with and absolutely necessary for the advantages
which are to be obtained. Even more important a limitation may never have, as a
consequence, that the right becomes illusory.
74. The Complainant contends that the rights which have been breached do not contain
any internal limitation clauses. The Complainant further contends that no reasonable
or necessary justification exists in the present case to limit the full application of
Articles 2, 3, 7 and 26 of the Charter.
75. The Complainant also cites Civil Liberties Organization v. Nigeria: 27 "The
Commission states a general principle that applies to all rights, not only freedom of
association. Government should avoid restricting rights, and take special care with
regard to those rights protected by constitutional or international human rights law.
No situation justifies the wholesale violation of human rights."
76. In Media Rights Agenda v. Nigeria, the Complainant notes that the Commission
stated the following: "To allow national law to have precedent (sic) over the
international law of the Charter would defeat the purpose of the rights and freedoms
enshrined in the Charter. International human rights standards must prevail over
contradictory national law. Any limitation of the rights of the Charter must be in
conformity with the provisions of the Charter."
77. In this regard, the Complainant contends that the ouster of the jurisdiction of the
courts in Swaziland, by Section 11 of the Constitution and the Practice Directive of the
Chief Justice, is not reasonable, justifiable and necessary in a democratic state.
78. Regarding the rationality of the immunity of a sitting Head of State, the Complainant
submits that Section 11 of the Constitution grants immunity to the King. The
Complainant cites the case of Clinton v. Jones 520 US 681 (1997), which established
that a sitting President of the US has no immunity from civil litigation from acts done
before taking office and those acts unrelated to the office. The Complainant notes that
the US Supreme Court, in a unanimous decision, ruled that separation of powers does
not mandate that federal courts delay all private civil suits against the President until
the end of his term of office. The case concluded that the position of president does
not exclude the individual from civil suits.
79. In this regard, the Complainant submits that the ouster of the court's jurisdiction to
subject the King to judicial processes, by way of the Practice Directive and Section 11
of the Constitution, serves no democratic purpose that can be justified in a democratic
state. Additionally, the Practice Directive is a violation of the law, in that it prevents
the Courts from getting an opportunity to interpret the impact of the immunity clause
in Section 11 of the Constitution.
The Respondent State's Submission on the Merits
80. In its submission, the Respondent State submits that, at the time the practice directive
came into effect, no one foresaw the negative repercussions it would have to the
country.
81. The Respondent State avers that Practice Directive No.4/2011 provides that civil
claims against the King should not be accepted by the Courts in the country. Further,
the Respondent State avers that the Practice Directive is a constitutional matter which
ought to have been challenged by the Complainant and brought before a full bench
of the High Court.
82. The Respondent State submits that the then Chief Justice was relieved from his duties
for serious misconduct and a series of cases on abuses of authority. The State contends
that the removal of the Chief Justice brought an end to the Practice Directive, and
further it has never been used in the Courts.
83. The Respondent State submits that Section 11 of the Constitution should be read in
line with Article 3(2) of the Charter of the Organization of African Unity, which
provides for non-interference in the internal affairs of states. The State avers that the
section th.at follows is in respect of sovereignty and territorial integrity of each State
and for its inalienable right to independent existence. Accordingly, the Respondent
State avers that the Complainant has no authority to demand that Section 11 of the
Constitution be amended, further noting that Chapter XVII of the Constitution
provides for the processes to be followed when amending the Constitution.
84. The Respondent State contends that Section 11 does not violate any provision of the
African Charter. Rather the Constitution ensures that all citizens enjoy all the rights
and freedoms recognized in the Charter without limitation. Further Section 141 of the
Constitution, relating to independence of the judiciary, provides that this
independence is only subject to the Constitution and is not controlled or directed by
any person or authority.
85. The Respondent State avers that, in the present case the Attorney General advised the
plaintiff to sue the King's Office as the defendant in the matter. The State further av~ --that the King's Office can be sued, but more appropriately through the Chief O • ,e tl~o·iHu11~14,>
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86. To buttress this, the State cited a number of cases which have been filed in the courts,
which have never been refused registration by reason of the King' Office or Chief
Officer not being liable to be sued:
i.
"Chief Officer (Swaziland National Administration) v. Kunene, in Re: Kunene
v. The Attorney General, The Minister of Finance, The Accountant General, The
Chief Officer - King's Office (Swaziland National Administration), Civil
Service Commission: Industrial Appeal Case No.7/2007,(2008] SZICA 4;"
ii. "Mduduzi Hlatshwako & 111 Others v. Chief Officer (King's Office), Industrial
Court case No.238/2012 (pending)."
87. The Respondent State further cites the case of Lawyers for Human Rights v.
Swaziland28 in which the Commission recommended that the proclamation of 1973
and subsequent decree No.3/2001 violated judicial independence. In light of this
recommendation, Section 141 of the Constitution has specific provisions guaranteeing
the independence of the judiciary.
88. Regarding the Bill of Rights, the Respondent State contends that the Constitution
contains a comprehensive Bill of Rights. The State cites the case of Sihlongonyane v.
Sihlongonyane (470/2013A) [2013] SZHC 144 (18 July 2013), in which the Court held
that all people are equal before the law, which is strongly emphasized in cases relating
to women since historically they were not seen as equals.
89. Regarding the right to a fair trial, the Respondent State submits that the Courts have
given effect to the right to fair trial over the years, and further the Constitution gives
a broad interpretation on the right to a fair trial.
90. Regarding judicial independence, the Respondent State avers that Section 141 of the
Constitution guarantees the independence of the judiciary from the control or
direction of any person or authority in both its judicial and administrative functions,
which is in harmony with Article 26 of the African Charter.
91. Regarding limitations of guaranteed rights, the State submits that the Constitution
guarantees that human rights are upheld; however Section 14(3) offers a limitation
that citizens ought to be mindful of the rights and freedoms of others, in addition to
the public interest.
92. Regarding the rationality of immunity for a Head of State, the Respondent State
submits that Section 11 of the Constitution is aligned to the decision taken by the
Assembly of the Africa Union in October 2013, that no charges should be initiated or
continued against any serving AU Head of State.
93. The State submits that a distinction can be made with the cited case, Clinton v. Jones
US 681 (1997), given that the charges were preferred against Bill Clinton in his
personal capacity, and not in his capacity as the President. In the present case, the
State avers that the alleged infringement of the right occurs during the tenure of a
serving head of State, and in line with Sections 11 and 228 which provide immunity
for the King from legal suits.
94. Accordingly the Respondent State requests that the declaratory orders and request for
amendment to the Constitution sought by the Complainant should be dismissed.
The Complainant's Supplementary Submissions on Merits
95. In response to the Respondent State's submissions, the Complainant notes that the
State has displayed a lack of appreciation of the implications of the laws and practices
which it issues, further noting that it is unconscionable that the State did not foresee
the negative repercussions that the Practice Directive would have.
96. The Complainant avers that the action of correcting the negative repercussions of the
Practice Directive should include an amendment to the Constitution, to reinstate the
Court's jurisdiction over civil claims against the King, directly or indirectly.
97. The Complainant submits that the matter could not have been dealt with before the
Constitutional Court because the matter was not issued a case number and was not
registered by the Registrar on the instruction of the Chief Justice. In this regard, the
Complainant cites the case of De Jong, Baljet and Van Den Brink v. The
Netherlands 29 where it was held that: "The only remedies which Article 26 of the
Convention requires to be exhausted are those that relate to the breaches alleged, and
at the same time are available and sufficient. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing which they will lack
the requisite accessibility and effectiveness."
98. The Complainant contends that the removal of the Chief Justice does not cure the
Respondent State's failure to abide by the provisions of the Charter, and further, were
the Practice Directive to be reviewed or removed, there is still need to amend the
Constitution to make it consistent with the African Charter.
99.
The Complainant submits that the fact that Section 141 of the Constitution provides
for the independence of the judiciary, does not explain the existence of Section 11 of
the Constitution which ousts the independence of the courts to entertain cases relating
to the King.
100. The Complainant avers that, the fact that some cases involving the King directly or
indirectly, have been heard is not an issue as it potentially demonstrates the selectivity
in the application of the law, making it contrary to the principles of equal protection
and equality before the law.
101. Regarding the rationality of immunity for a Head of State, the Complainant contends
that, case law has demonstrated that Presidents, Heads of State through their States,
can be brought before the Commission and local courts. Accordingly Section 11 of the
Constitution is contrary to the principles and provisions of the Charter.
The Respondent State's Supplementary Submission on the Merits
102. In its supplementary submissions, the Respondent Sate submits that, as required in
Article 56(5), the Respondent State must first have the opportunity to provide redress
within the framework of its own domestic legal system.
103. The State submits that Practice Directive No.4/2011 has been withdrawn and is no
longer in effect, following a review which was undertaken by the Chief Justice. Notice
AG 1 issued by the Chief Justice on 03 July 2017 provides the following: "After due
consideration and careful consultations, the Chief Justice hereby withdraws Practice Directive
No.4/2011 issued on the 161" June 2011 by the office of the Chief Justice." 30
104. The Respondent State avers that the effect of the removal of the Directive renders the
Communication academic, and further that the issues complained of by the
Complainant can be ventilated in the local courts.
THE COMMISSION'S ANALYSIS ON THE MERITS
105. In the present Communication, the Complainant bases the claims against the
Respondent State on violations of Articles 1, 2, 3, 7(1)(a) and 26 of the African Charter.
The Commission will analyse each of the articles alleged to have been violated by the
State individually, followed by a discussion on Article 1 of the African Charter.
106. The Communication concerns the issuance of Practice Directive No. 4 of 2011 by the
Chief Justice of the Respondent State, for which the Chief Justice cited Section 11 of
the Constitution (2005) as authority.
107. Practice Directive No. 4 of 2011 states:
"1. It has come to the attention of the Chief Justice that some legal practitioners issue
summonses or applications for civil claims against His Majesty the King and iNgwenyama.
The attention of legal practitioners is drawn to Section 11 of the Constitution which provides
as follows:
"11. The King and iNgwenyama shall be immune from (a) suit or legal process in any cause in respect of all things done or omitted to be done by
him; and
(b) being summoned to appear as a witness in any ciJJ.il~iminal proceedings."
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2. Accordingly, the Chief Justice hereby issues the following Practice Directive:(1) Summonses or applications for civil actions against His Majesty the King and
iNgwenyarna, either directly or indirectly, shall not be accepted in the High Court or any
other Court in the country.
(2) The Registrar of the High Court and/or all those entrusted with receipt of court processes
in this country are hereby directed to refuse to accept any summonses or application specified
in 2(1) above."
108. In the Communication, the Complainant references a case which purportedly led to
the issuance of the Practice Directive. The case involves the owner of M.V.N
Marketing Supply (Pty) Ltd., who entered into an Agreement to sell a Guest House to
the Office of the King.31 The Complainant submits that the Office of the King made a
partial payment of the purchase price, however a substantial amount of the purchase
price was never paid. In response, the Guest House owner decided to seek legal
redress to claim the unpaid arrears of the agreed amount. Initially, the owner of
M.V.N Marketing Supply (Pty) Ltd. sued the Minister of Finance in his capacity as the
Chairperson of the Board of Trustees responsible for the assets of the Office of the
King. However, based on the advice of the Attorney General that the proper party to
the suit was the Office of the King, the owner of M.V.N Marketing Supply (Pty) Ltd.
proceeded to sue the Office of the King as the Respondent in the matter. The
Complainant alleges that, it was at this stage that the Chief Justice issued the Practice
Directive No.4/2011, which effectively nullified the proceedings.
109. The Complainant avers that, until the issuance of this Practice Directive, the Office of
the King was a proper party for plaintiffs to cite in court and seek redress.
Accordingly, the Complainant initiated the Communication with the Commission in
response to the issuance of the Practice Directive which, in the view of the
Complainant, restricted the rights of citizens who had entered into contracts with the
Office of the King.
110. From the information which has been provided, the Commission notes that, whereas
this case is repeatedly referenced throughout the Communication, the owner of
M.V.N Marketing Supply (Pty) Ltd. is not the Victim in the Communication before
the Commission. The facts of the case concerning the owner of M.V.N Marketing
Supply (Pty) Ltd. are merely utilized by the Complainant to elucidate on the origin
and effect of the Practice Directive.
111. The Respondent State, on the other hand, disputes the allegations of the Complainant,
and requests that the Communication be dismissed.
112. At the outset, the Commission would like to clarify the following with regards to
Section 11 of the Constitution.
31
"An Agreement entered into between M.V.N Marketing (Pty) Ltd (herein after called the Seller) represented by Mr.
Victor Mphithizeli Ndlovu, on the one hand and the King's Office (herein after called the Purchaser), on the other hand
represented by Mr. Roy D.N. Fanourakis in his capacj~s:thit:CJiiers Officer in the King's Office signed by the Parties
on Friday 2nd December 2005," Complaint, Annex .· so:,o·,.•E~~Al,:,r,\
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113. The Complainant contends that the Practice Directive and Section 11 of the
Constitution individually and jointly oust the jurisdiction of all courts in Swaziland
in cases against the King and the Office of the King. 32 Based on this allegation, the
Commission would necessarily be required to determine whether Section 11 of the
Constitution violates the rights alleged in the present Communication.
114. Section 11 of the Constitution states: "The King and iNgwenyama shall be immune from (a) suit or legal process in any cause in respect of all things done or omitted to be done by
him; and (b) being summoned to appear as a witness in any civil or criminal proceedings,"
115. This Constitutional provision which grants the King immunity from suits or legal
processes is not without precedent, given that a number of African States similarly
have constitutional provisions which grant immunity against civil or criminal
proceedings to state officials, including Heads of State.33
116. Regarding the present Communication, the Commission observes that the
Constitution was adopted in 2005, which pre-dates the issuance of the Practice
Directive by the Chief Justice in 2011 by six (6) years. Accordingly the constitutional
provision granted immunity to the King both prior to and after the issuance of the
Practice Directive. The logical consequence of this fact is that, from the date of the
adoption of the Constitution in 2005 to date, the King has been, and currently remains
immune from "suit or legal process in any cause in respect of all things done or omitted to
be done by him." This is therefore not a new state of affairs, rather is the status quo in
the Respondent State.
117. Given that Section 11 of the Constitution grants the King immunity, the Commission
observes that the Complainant does not claim to have ever initiated any case against
the King, nor does the Complainant allege that the Victims in the Communication
filed any suit or process against the King.
118. Moreover, it is patently clear that the Complainant has never challenged Section 11 of
the Constitution in the Respondent State's courts in order to determine whether this
constitutional provision violated the rights of Swazi citizens, both prior to and after
the issuance of the Practice Directive. Nor is evidence adduced demonstrating that the
Complainant faced any restriction initiating a review of Section 11 of the Constitution
in the national courts.
119. However it is observed that the Complainant sought to challenge the provisions of
Section 11 of the Constitution in a Communication before the Commission only after
the Practice Directive was issued in 2011. Viewed from this perspective, it appears
that the Complainant used the opportunity presented by the issuance of the Practice
Directive to initiate a Communication which alleged that Section 11 of the
Constitution similarly violates the rights in the African Charter.
120. Based on this, it is the Commission's considered view that Section 11 of the
Constitution falls outside the scope of the present Communication. Rather the focus
of the present Communication is on cases which have been brought against the Office
of the King, which were then forestalled by the Practice Directive.
121. In light of this distinction between the Practice Directive and Section 11 of the
Constitution, the Commission would like to indicate that it will limit its evaluation of
the present Communication to the violations of the African Charter solely with regard
to the Practice Directive.
122. With this preliminary perspective in mind, the Commission will proceed to determine
whether the Practice Directive violates Articles 1, 2, 3, 7(1)(a) and 26 of the African
Charter.
Violation of Article 2
123. The Complainant briefly discusses Article 2, submitting that Article 1 should be read
together with the first portion of Article 2. The Complainant avers that Article 1 of the
Charter places an obligation on State Parties, whereas the Practice Directive issued by
the Chief Justice has the negative effect of interfering with the rights in the Charter,
and further that State Parties have an obligation not to undermine the human rights
provisions guaranteed in the country's Bill of Rights and international human rights
standards of the State concerned.
124. The Respondent State did not make submissions on Article 2 of the Charter beyond
stating that the Constitution ensures that Swazi citizens enjoy all the rights and
freedoms guaranteed in the Charter without limitation.
125. Whereas Articles 1 and 2 are discussed concomitantly by the Complainant, at this
juncture the Commission will only analyse whether there has been a violation of
Article 2 of the African Charter.
126. Article 2 of the Charter provides that: "Every individual shall be entitled to the enjoyment
of the rights and freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or
any other opinion, national and social origin, fortune, birth or other status."
or preference which is based on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status, and which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on equal footing, of all rights and freedoms." 34
128. Based on this analysis, the Commission observes that Article 2 is the basic nondiscrimination provision in the African Charter which provides that the rights
enshrined therein must be guaranteed without distinction. Essentially, discrimination
includes any conduct or omission which has the purpose or effect of nullifying or
impairing the equal access to, and enjoyment of human rights.
129. In order to substantiate the alleged discrimination, the Commission has held that the
Complainant has the onus to establish that the Victim has been treated differently in
the enjoyment of the rights in the Charter, by virtue of their race, ethnic group, colour,
sex, language, religion, political or any other opinion, national and social origin,
fortune, birth, or any status.35
130. Taking into consideration that the Victims in the present Communication are
identified as all lawyers whose clients are directly affected by the Practice Directive
and the Constitutional Provision, the Complainant would need to illustrate how the
Victims were treated differently in the enjoyment of any of the rights in the Charter,
by virtue of their race, ethnic group, colour, sex, language, religion, political or any
other opinion, national and social origin, fortune, birth or any status, in order to
establish a violation of Article 2 of the Charter.
131. However, in the present Communication, the Commission observes that the
Complainant has failed to set forth with clarity any particular instance in which the
Victims were denied the enjoyment of the rights in the African Charter by virtue of
the categories set forth in Article 2, such as race or ethnicity, or any other status. The
Commission observes that the Complainant does not discuss any kind of
discrimination which the Victims were subjected to.
132. Accordingly the Commission concludes that the Complainant has not substantiated
this allegation, and is therefore indisposed to affirm that there has been any
discrimination in the present Communication. Therefore the Commission does not
find a violation of Article 2 of the African Charter.
Violation of Article 3
133. The Complainant submits that the Practice Directive No.4/2011 violates Article 3 of
the African Charter by placing the King, and the people who purport to act for the
King, above the law, thereby denying citizens the right to have a dispute with the
King resolved by the courts. However, the Respondent State submits that the
34
Communication 245/02: Zimbabwe Human Rights NGO Forum v. Zimbabwe (2008) ACHPR, paragraph 170
See Communication 293/04: Zimbabwe Lawyers for Human Rights and the nstitute for Human Rights and
Development in Africa v. Zimbabwe (2008) ACHPR, paragraph I 2J.qrfi:,,,
35
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Constitution emphasizes the importance of equality and protection before the law,
which is an indication that the State is in compliance with all the provisions of the
African Charter.
134. Article 3 of the African Charter provides that: "Every individual shall be equal before the
law. Every individual shall be entitled to equal protection of the law."
135. In Zimbabwe Lawyers for Human Rights and Institute for Human Rights and
Development in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe, the
Commission held that: " [T]he most fundamental meaning of equality before the law
under Article 3.1 of the Charter is the right by all to equal treatment under similar
conditions [... ] The principle that all persons are equal before the law means that
existing laws must be applied in the same manner to those subject to them. The right
to equality before the law does not refer to the content of legislation, but rather
exclusively to its enforcement. It means that judges and administration officials may
not act arbitrarily in enforcing laws."36
136. Furthermore, "equal protection of the law under Article 3.2 on the other hand, means
that no person or class of persons shall be denied the same protection of the laws
which is enjoyed by other persons or class of persons in like circumstances in their
lives, liberty, property and in their pursuit of happiness. It simply means that
similarly situated persons must receive similar treatment under the law."37
137. In Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development in Africa v. Zimbabwe, the Commission held that "In order for a party
to establish a successful claim under Article 3(2) of the Charter therefore, it must show
that, the Respondent State had not given the Complainants the same treatment it
accorded to the others. Or that, the Respondent State had accorded favourable
treatment to others in the same position as the Complainants."38
138. Taking into consideration the jurisprudence cited above, a violation of Article 3 will
have occurred if the Victims were subjected to differential treatment in the application
of the Practice Directive.
139. In this regard, the Commission observes that no evidence has been provided by the
Complainant indicating that the Victims were not accorded the same treatment which
was given to others in the same position, thereby constituting a violation of Article 3.
Rather it is alleged that the content of the Practice Directive violates Article 3 of the
African Charter.
140. While the Complainant did not adduce evidence illustrating differential treatment in
the application of the Practice Directive, the Commission notes that the Respondent
State referenced two cases in its submissions which were brought against the Office
of the King. The Respondent State submitted that: "the under listed cases have been
enrolled in our Courts and they were never refused registration by reason of the
King's Office or Chief Officer not be (sic) legally liable to be sued."39
141. From the evidence adduced by the Respondent State, the Commission notes that the
first cited case, Chief Officer (Swaziland National Administration) v. Kunene in Re:
Kunene v. The Attorney General, The Minister of Finance, The Accountant
General, The Chief Officer - King's Office40 was initiated in 2007, which is before
the Practice Directive was issued in 2011. However the latter case cited, Mduduzi
Hlatshwako & 111 Others v. Chief Officer (King's Office) 41 which commenced in
2012 and is cited in the Respondent State's submissions as pending before the Courts,
was initiated in the Courts after the Practice Directive came into force.
142. The Commission is of the view that, regardless of the fact that the Complainant did
not demonstrate the extent to which the Victims in the Communication were not
accorded the same treatment which was given to others in the same position, the facts
which have been provided by the Respondent State indicate that the case which was
initiated by the owner of M.V.N Marketing Supply (Pty) Ltd. was subjected to
differential treatment in the application of the Practice Directive. It can clearly be
observed that the second case cited by the Respondent State, that is Mduduzi
Hlatshwako & 111 Others v. Chief Officer (King's Office), was successfully brought
against the Office of the King after the Practice Directive was issued in 2011; whereas
the owner of M.V.N Marketing Supply (Pty) Ltd. was not able to proceed with the suit
brought against the Office of the King based on the application of the Practice
Directive.
143. This clearly shows that the Practice Directive was selectively applied against the
owner of M.V.N Marketing Supply (Pty) Ltd., to deny access to the Courts.
144. Accordingly, the Commission finds that Article 3 of the Charter has been violated,
because a litigant in the Respondent State, the owner of M.V.N Marketing Supply
(Pty) Ltd., was not able to proceed with the suit brought against the King's Office after
the Practice Directive was issued, whereas it has been illustrated by the Respondent
State that subsequent parties were able to do so; thereby indicating selective
application of the Practice Directive.
Violation of Article 7(1)(a)
145. The Complainant contends that the Practice Directive ousts the jurisdiction of all
courts in Swaziland in cases against the King and the Office of the King. The
39
Respondent State's Merits Submissions, paragraph 5.3
Industrial Appeal Case No. 7/2007, [2008] SZICA 4, Respondent State's Merits Submissions,
41
Industrial Court case No.238/20 12 (pending), Respondent State's Merits Subm issions, paragr
40
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Respondent State, on the other hand, contends that the courts have given effect to the
right to a fair trial over the years, and further that the Constitution gives broad
interpretation on the right to fair trial, as provided in Section 21 of the Constitution.
146. Article 7(1)(a) of the African Charter provides that:" Every individual shall have the right
to have his cause heard. This comprises: (a) the right to an appeal to competent national organs
against acts of violating his fundamental rights as recognized and guaranteed by conventions,
laws, regulations and customs in force."
147. The Commission notes that, as stated in, Luke Munyandu Tembani and Benjamin
John Freeth (represented by Norman Tjombe) v. Angola and Thirteen Others, "the
language of Article 7(1)(a) of the Charter itself is a clear indication that the provision
envisages the right of individuals to access the courts at the national level.
Accordingly, the Commission understands Article 7(1)(a) of the Charter to embrace
both a right of access to court and a right to an effective remedy at the domestic level
in the event of a violation of the rights guaranteed in the Charter.42
148. At the outset, it is useful to understand the distinction between the King and the Office
the King. Section 4(1) of the Constitution states: "Without prejudice to the provisions of
section 288, King and iNgwenyama of Swaziland is an hereditary Head of State and shall have
such official name as shall be designated on the occasion of his accession to the Throne." The
Office of the King, on the other hand, is elaborated in Section 9(1) of the Royal
Emoluments and Civil List Act (1992): "There shall be established in the Royal Household
by regulations made under section 15 the King's Office which shall subject to the provisions
ofthis Act, be responsible for the administration of the affairs and management of the resources
of the Royal Household in a cost effective and business-like manner. "43
149. Section 11 of the Constitution provides for the personal immunity of the King, from
suit or legal process in any cause in respect of all things done or omitted to be done
by him; however this immunity does not extend to the Office of the King. This can be
deduced from the Complainant's submissions which indicate that "Until this
Direction, the Office of the King was [a] proper party for plaintiffs and victims to cite
in court and seek redress," 44 and further that "there is a record of matters where the
King's Office has been successful in matters." 45 The Complainant also indicated that
"the Office of the King has entered into contracts with citizens both legal and natural
such as buying land and developments from the latter with attendant legal
consequences.46
150. To date, the Commission has not received any information which indicates that, prior
to issuance of the Practice Directive in 2011, the King's Office was understood to be
immune from civil suits.
151. It is for this reason that the Chief Justice issued the Practice Directive, with the
intention of broadening the personal immunity of the King to include the Office of the
King, by stating in the Practice Directive that "summonses or applications for civil
claims against His Majesty the King and Ingwenyama, either directly or indirectly shall
not be accepted[ ... ]." Acting on this Practice Directive, the Registrar of the High Court
declined a request from the Lawyers representing the owner of M.V.N Marketing
Supply (Pty) Ltd., to accept the summons for the Office of the King on the basis of the
Practice Directive, thereby confirming that civil suits against the Office of the King
were henceforth understood as indirect claims against the King.
152. With this in mind, the Commission will proceed to analyse the alleged violations of
Article 7(1)(a) vis-a-vis the Practice Directive.
The Practice Directive No.4/2011
153. Whereas the Parties to the Communication do not address the legal nature of the
Practice Directive, Section 142 of the Constitution provides that the Chief Justice" may
make rules for regulating the practice and procedure of the superior and subordinate
courts." Based on this, the Commission deduces that the Practice Directive is an
administrative document which is issued by the Chief Justice to regulate the practice
and procedure of the courts.
154. On its face, it can be observed that the language of the Practice Directive indicates a
restriction of the right of access to the courts given that Section 2(2) of the Practice
Directive provides that "the Registrar of the High Court and/ or all those entrusted
with receipt of court processes in this country are hereby directed to refuse to accept
any summonses or application specified in 2(1) above." Therefore, the Practice
Directive sought to prohibit the Registrar and other judicial officials from accepting
summons and other applications for civil claims against the King directly and
indirectly, thereby including tl1e Office of the King.
155. However, as earlier noted, the Practice Directive is an administrative document which
guides court processes, therefore a violation of Article 7(1)(a) only would result from
its application.
156.
This is so in terms of Section 11 of the Constitution as read with the Practice Directive No.4
of 2011 as amended." 47
157. Therefore, the suit brought by the owner of M.V.N Marketing Supply (Pty) Ltd.
against the Office of the King effectively ended when the Registrar of the High Court
rejected a litigant's request for summons referencing the Practice Directive as the
reason for the refusal, which left no recourse for the owner of M.V.N Marketing
Supply (Pty) Ltd. to seek redress for the unpaid arrears of the sale of the Guest House
to the Office of the King. Consequently, the Practice Directive was used to deny a
litigant in the Respondent State access to tl1e courts, thereby indicating a violation of
Article 7(1)(a).
Violation of Article 26
158. The Complainant further avers that the Practice Directive threatens the independence
of the judiciary, because it tends to interfere with the mandate of the judiciary to
promote and protect the rights and freedoms guaranteed in the African Charter. The
Respondent State on the other hand, cites the relevant article in the Constitution which
provides for the independence of the judiciary, noting that this provision is in
harmony with Article 26 of the African Charter.
159. Article 26 of the African Charter provides thus:" States parties to the present Charter shall
have the duty to guarantee the independence of the Courts[ .. .].
160. The Commission's Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa (the Principles and Guidelines on Fair Trial) state in Principle
4(a) that" the independence of judicial bodies and judicial officers shall be guaranteed
by the constitution and laws of the country and respected by the government, its
agencies and authorities," and further Principle 4(g), "All judicial bodies shall be
independent from the executive branch."48
161. From its jurisprudence, it can be observed that the Commission has mainly discussed
the independence of the judiciary from a separation of powers perspective. The
Commission has consistently held in its jurisprudence that "in all cases, the
independence of a court must be judged in relation to the degree of independence of
the judiciary vis-a-vis the executive." 4 9
162. However in the present Communication, it is alleged by the Complainant that the
Chief Justice interfered with the proper functions of the Judiciary by ousting the
jurisdiction of the courts through the Practice Directive, which departs from the
47
Letter from the Registrar of the High Court to Messers. L. R. Mamba and Associates, 25 November 2011
The African Commission adopted the Principles and Guidelines on the Right to Fair Trial and Legal Aid in Africa at its
33 rd Ordinary Session, 15 to 29 May 2003, Niamey, Niger
49
Communication 334/06: Egyptian Initiative for Personal Rights and lnterights v. Egypt (2011) ACHPR, paragraph
206. See also: Co_l)lll1.U11ication 281/03: Marcel Wetsh'okonda Koso and others v. Democratic Republic of Congo
(2009) A
; Communication 266/03: Kevin Mgwanga Gunme et al v. Cameroon (2009) ACHPR,
paragrap
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Commission's existing jurisprudence, given that it is the functional head of the
judiciary who is allegedly violating its independence.
163. In order to establish whether the Chief Justice's Practice Directive violates the
independence of the judiciary, it is useful to refer to Principle 4(f) of the Principles
and Guidelines on Fair Trial which states, "There shall not be any inappropriate or
unwarranted interference with the judicial process nor shall decisions by judicial
bodies be subject to revision except through judicial review, or the mitigation or
commutation of sentence by competent authorities, in accordance with the law."
164. As has been elaborated, Section 2.2 of the Practice Directive directs the Registrar and
other judicial officials to 'refuse to accept any summons or application against the
King, either directly or indirectly.' From the language of the Practice Directive, it can
be plainly viewed that it sought to interfere with the judicial process, by directing
judicial officials to reject summons and other applications against the King and the
Office of the King, which constitutes a violation of Article 26 of the African Charter.
Violation of Article 1
165. Regarding Article 1 of the Charter, which provides that "the parties to the present
Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall
undertake to adopt legislative or other measures to give effect to them," the Commission
notes from its jurisprudence that "Article 1 gives the Charter the legally binding
character always attributed to international treaties of this sort. Therefore a violation
of any provision of the Charter automatically means a violation of Article 1."so
166. From the analysis which has been undertaken on the other Articles of the African
Charter, it is the view of the Commission that the Respondent State, through the
Practice Directive, violated a number of provisions of the Charter and accordingly the
Commission finds a violation of Article 1 of the African Charter.
Decision of the Commission on the Merits
167. In light of the foregoing, the African Commission on Human and Peoples' Rights:
Finds a violation of Articles 1, 3, Article 7(1)(a) and Article 26 of the African
Charter with regard to Practice Directive No. 4/2011, for the period that the
Practice Directive was in force;
ii. Does not find a violation of Article 2 of the African Charter;
iii. Takes note of the withdrawal of the Practice Directive on 03 July 2017, per Notice
AG 1, and stresses that the provisions of Section 11 of the Constitution should not
be used to preclude the rights enshrined in the Africa Charter with respect to the
Office of the King.
i.
Done in Banjul, The Gambia, during the 27th Extra-Ordinary Session of the African
Commission on Human and Peoples' Rights, from 19 February to 04 March 2020 .,_.~--,-
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