Swazi lawyers win battle against parliament

Court rules that committee cannot investigate lawyers

Richard Lee's picture

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Strategic communications for WWF

August 10th, 2012

In yet another blow to the authorities in Swaziland, the country’s High Court has ruled in favour of the Law Society in its battle with Parliament over whether the legislature has the right to investigate lawyers.

The latest attack on the judicial system was launched on 14th June when parliament set up a select committee to investigate allegations that some lawyers were allegedly mismanaging Trust Accounts and enriching themselves through fraudulent means.

Clearly this is not within the mandate of the legislature, so the Law Society – which only learned of the plan through the newspapers – wrote to the Speaker advising him of the inappropriateness of the action and pointing out that a Tribunal, which was established under the Legal Practitioners’ Act, exists to investigate and discipline errant lawyers.

Parliament did not respond to the letter. Instead, the MP who had been appointed Chairman of the new select committee took the fight to the state-controlled national media – stating that parliament would not be intimidated by lawyers. And then she invited members of the public to come and make their representation before the committee.

The Law Society filed an urgent application before the High Court to stop the committee from sitting and won a temporary interdict. But given the constitutional issues that were raised, the High Court decided to hear the matter with a full bench – and the full bench’s decision is crystal clear.

Ordering parliament to halt its illegal proceedings, the High Court ruling states that ‘…Parliament or the select committee has no power to exercise judicial or quasi–judicial powers as such powers are only a preserve for the Judiciary’.

‘In particular that, the exercise by the select committee in so far as it purports to investigate legal practitioners or “lawyers” for Acts of Corruption or mismanagement of Trust accounts takes the matter nowhere in as much as it will not be empowered to adjudicate whether a particular attorney accused of either fraud, misappropriation of a client’s money or corruption was guilty or not, in the case of that particular attorney denying such an allegation. It will not have this power because no law empowers it to adjudicate over disputes’.

‘Clearly the select committee cannot be allowed to conduct an exercise in futility at the expense of the [Law Society’s] members if it can neither adjudicate a dispute that arises nor punish the offender if identified’.

It is another very public legal embarrassment for the authorities, who lost a case in the Industrial Court over the mass sacking of teachers just last week – and shows just how cavalier the King’s government and cronies have become in their attitude towards the rule of law.

But there is no indication that they will change their behaviour and begin to act within the law so there are likely to be many more court cases in the months ahead.

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