The King can do no wrong: The impact of The Law Society of Swaziland v Simelane NO &amp; Others on constitutionalism

Political scientists analyze the global rise of judicial appointment commissions as a response to judicialized politics. They argue that appointment processes have formalized to include more constituencies now affected by judicial decisions. This article presents evidence from Southern Africa confounding their expectations. In this region, formalization has social as well as political origins. Over the last two decades, the senior judiciary has suddenly become subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have been documenting for decades. Throughout the region, therefore, it has become increasingly difficult to defend opaque practices inherited from British (and South African) colonialism. Twenty years ago, Namibia, Botswana, Lesotho, and Swaziland/Eswatini all recruited most appellate judges from abroad through informal channels. In every country, this system has come under pressure from a variety of local sources. Yet those demanding reform have always been able to mobilize new international orthodoxies that require the judiciary to represent its society and make itself accountable to profane, external audiences. These new orthodoxies have acquired an unusual power in Southern Africa thanks to their embodiment in South Africa’s own post-apartheid transition, and long-standing moral imperatives to “localize” senior expatriate positions in postcolonial states.

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On amorphous terms, terrorism and a feeble judiciary: Analysing the dissenting judgment in Maseko v Prime Minister of Swaziland and Others (2016)

Dube

Nhlabatsi²

2017

International Journal of African Renaissance Studies - Multi-,

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On 16 September 2016, the Swaziland High Court delivered judgment in the matter between Maseko and others v Prime Minister of Swaziland and others [2016] SZHC 180, in which it declared certain provisions of the Suppression of terrorism Act (2008); and the Sedition and Subversive Activities Act (1938) as unconstitutional. The Declaration followed a constitutional challenge, based on the applicants' freedom of expression, assembly and association. The judgment was unprecedented in the Swaziland context, given that of the four applicants, three were political activists and one was a Human Rights lawyer. All four have been in frequent collision with the government over their political opinions. Two judges ruled in favour of the applicants, whilst the third one ruled against them. The judgment was a sharp departure from past decisions, where the courts often ruled in favour of the state, leaving many litigants without a remedy. The ruling marked the first time a Swazi court had declared the Swaziland Constitution a living document. However commendable the main judgment, the dissenting opinion raises several constitutional questions that need to be addressed. This article therefore, critically analyses the dissenting opinion of Justice Hlophe, and seeks to demonstrate that his approach is antithetical to constitutionalism, and is irreconcilable with accepted notions of Bill of Rights litigation.

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The King can do no wrong: The impact of The Law Society of Swaziland v Simelane NO & Others on constitutionalism

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From King Sobhuza II’s Auto-Coup D’état to the Era of Constitutional Void and Royal Benevolent Despotism

From King Sobhuza II’s Auto-Coup D’état to the Era of Constitutional Void and Royal Benevolent Despotism

The New Politics of Judicial Appointments in Southern Africa

On amorphous terms, terrorism and a feeble judiciary: Analysing the dissenting judgment in Maseko v Prime Minister of Swaziland and Others (2016)

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