Item 3: Administration of Justice
Madam Chair,
Pax Romana would like to draw the attention of the Sub-Commission to the way justice is administered in three South African states namely Lesotho, Swaziland and Zimbabwe.
Madam chair,
The government of Lesotho has recently attempted to render irrelevant the office of the Ombudsman by tailoring the contract of the incumbent to make him answerable to the Prime Minister who also happens to be the Minister of Public Service under which the Ombudsman's office falls. The country's constitution stipulates that he should directly report to parliament.
Recently, the Chief Magistrate was removed from his post to a civil service one and the Law Society condemned the move as a calculated campaign to bring the courts of law under the control and influence of the government. The pricked conscience of the democratic-minded sections of the nation had hardly recovered from this shocking disdain for the pillars of the country's tormented democracy when a police unit ransacked the house and offices of the president of the Law Society, who was the signatory of a letter chastising the removal of the Chief Magistrate from office as unlawful.
This catalogue of closely related instances constitutes a very sombre environment in which Civil and Political rights of people are hard to be exercised.
The influence of the government over the courts of law has created an environment in which some cases are delayed to dilute evidence given to the courts of law.
Madam chair, the above facts are only a clue of how justice is administered in Lesotho. Lesotho is on record for her main Human Rights violations that include torture, ill-treatment of suspects by the police, excessive use of force by security forces a as well as political arrests and trials.
Madam Chair,
Lesotho is not the only country in South Africa that faces problems in the administration of justice. It is with great concern that Pax Romana brings the Zimbabwe situation once again to the fore. We present before this Sub-Commission our alarm at the way the Zimbabwean government is influencing and tailoring the judiciary in that country. Early this year, a High Court judge was arrested from his chambers for allegedly obstructing the course of justice in a matter involving one of his acquaintances. The particular judge has a history of passing judgements perceived as unfavourable to the authorities, including his order in January to release the opposition Harare Mayor after he was arrested for holding a town meeting without police authorisation.
Madam chair, the executive in Zimbabwe should learn to respect the sanctity and authority of the judiciary. We note with great concern utterances recently made by the executive that it will not respect court rulings that it thinks are not objective. Madam chair, the government of Zimbabwe should stop abusing its powers by invoking the Temporary Presidential Powers Measures Act in order to overturn court rulings as what happened in March 2002 a few days before the presidential election. In this particular case, the President re-introduced an electoral law that had been thrown out by the High Court.
Another serious cause of concern is the way the government has been handling "retirement" and recruitment of judges under very controversial circumstances. The first victim was former Chief Justice Antony Gubbay. He was replaced by Chief Justice Godfrey Chidyausiku who, in 1999, was the chairman of the government-sponsored constitutional reform, whose draft constitution was rejected by Zimbabweans. Unfortunately, Madam chair, the trend spread to other judges perceived to have been making anti-government rulings. Recently, the Attorney General went on an immediate and early leave pending "retirement". There had been talk, Madam chair, that his office was failing to prosecute what Zimbabwe Information Minister called "opposition thugs and criminals".
Madam chair, the Zimbabwean government should stop circumventing court rulings and using its executive powers. Recently a Mail and Guardian journalist and permanent resident of Zimbabwe, Andrew Meldrum was deported against three High Court orders barring government from doing so. The High Court had initially blocked the deportation of Meldrum last year after he was acquitted by the courts.
Madam chair, everyone has the right to be heard in a reasonable time but Zimbabwe courts are delaying justice unduly. For example, the opposition filed court petitions just after the June 2000 General Elections and up to now most of the cases are still to be resolved while the challenge to last year's presidential election is still to be heard.
Madam chair,
Swaziland's judiciary has also been in tatters, with the Swazi government interfering with the Judiciary. In November last year, the Director of Public Prosecutions (DPP) was taken from his home in the middle of the night to a clandestine meeting with the Attorney-General, the Prime Minister and other high-ranking government officials where he was 'advised' to withdraw charges levied against the Attorney-General for sedition and contempt of court, or resign. He was further informed that failure to cooperate would lead to his deportation.
Madam Chair, the Kenyan born DPP, Lincoln N'garua, brought charges against the Attorney-General because of an ultimatum that he had issued to the Chief Justice and two other High Court judges who were presiding over an unprecedented legal challenge by amother who claimed her daughter was abducted by King Mswati III's aides.
On November 1 last year, judges of the High Court were officially informed in writing by the Attorney-General that if they continued hearing the case laid before the court by the abducted girl's mother, they must resign immediately after issuing their judgement. If they failed to do so, arrangements would be made for their removal from office.
This written order came two days after the chiefs of staff of the army, the police and correctional services and the Attorney-General met privately with the three judges to convey a message from the Royal Palace that the judges must stop hearing the case or resign.
Madam chair, there will be no independence of judiciary in Swaziland if this Sub-Commission does not see to it that it attends to the interference of the judiciary in Swaziland. The newly issued law, Decree No.2, which confirms that the appointment of the judges is at the sole discretion of the King who also determines the terms and conditions of such appointment, represents an attack on the independence of the judiciary and removes the right to legally challenge the actions of the Executive.
This Decree lays down harsh penalties for any person who fails to obey any order made by the King or offends against the dignity or office of the King or the Queen Mother. Any one convicted could be imprisoned for up ten years or fined US $6 000.
In conclusion Madam Chair, the wide and vaguely phrased offences, together with the reinstatement of the Non-bailable Offences Order, have increased fears that government critics will be subjected to arbitrary detention or politically-motivated prosecutions solely on the grounds of the peacefully held political beliefs.
The governments of the three countries mentioned are recommended to observe and respect article 26 of the International Covenant on Civil and Political Rights to which it is a signatory.
