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ACTS OF SWAZILAND
LEGAL TRAINING RESOURCE CENTER
Swaziland is an absolute hereditary monarchy (Kingdom of Swaziland is the conventional long name of the country). King Mswati III has ruled since 25 April 1986. The Head of the Government, appointed by the monarch from among the elected members of the House of Assembly, is Prime Minister Barnabas Sibusiso Dlamini (since 16 October 2008). The Cabinet is recommended by the prime minister and confirmed by the monarch. Swaziland gained its independency form Britain on 6 September 1968. Student and labor unrest during the 1990s pressured King Mswati to allow political reform and greater democracy. A constitution came into effect in 2006, but political parties remain banned. The African United Democratic Party tried unsuccessfully to register as an official political party in 2006. Talks over the constitution broke down between the government and progressive groups in 2007. According to 2006 data, 69% of the population lives below the poverty line. According to the UNDP, the Human Development Index (HDI) for 2007 for Swaziland is 0.572, which gives the country a rank of 142 out of 182 countries with data. Swaziland acceded the ICCPR on 26 Mar 2004.
Type of System
Swaziland operates under a dual legal system: Roman-Dutch common law (under which the Constitutional Courts operate) and customary law. The system based on Roman-Dutch law consists of the Supreme Court, the High Court, and magistrate courts. The Supreme Court, which is composed of foreign-born judges and two Swazis, has appellate and supervisory jurisdiction over the High Court and magistrate courts. Neither the Supreme Court nor the High Court has jurisdiction in matters concerning the office of the king or queen mother, the regency, the Swazi National Council, or the traditional regiments system, all of which are governed by traditional laws and customs. The traditional courts follow traditional laws and customs and serve the chiefs appointed by the king, and have limited civil and criminal jurisdiction. They are authorized to impose fines of up to 100 emalangeni ($13.50) and prison sentences of up to 12 months, and their decisions can be appealed to the High Court. In the customary courts, the legal representation of accused persons is not possible and evidence cannot be presented. Only the most serious cases are considered for transfer to the magistrate courts. Although the law states that the prosecutor presides over the allocation of cases to the appropriate courts, often the decision is made by the police officers at the time of arrest. Swaziland does not have dedicated minors’ courts. Only the High Court has a dedicated section that facilitates all matters involving minors.
Sources of Defendants' Rights
Swaziland does not have a single code containing its laws. Instead the laws of the country are drawn from: the Constitution, legislation, common law, judicial precedent, customary law, authoritative texts, and decrees. Chapter III of the Constitution is titled “Protection and Promotion of Fundamental Rights and Freedoms” (articles 14-39), and it provides for the fundamental rights and freedoms of the individual, the protection of right to life and personal liberty, the protection from inhuman or degrading treatment, for the equality before the law and the right to a fair hearings, and for the protection against arbitrary searches.
The Constitution provides for the right to a fair public trial (Article 21), except when exclusion of the public is necessary in the “interests of defense, public safety, public order, justice, public morality, the welfare of persons under the age of 18 years, or the protection of the private lives of the persons concerned in the proceedings.” Defendants enjoy a presumption of innocence, and According to Article 21(9) Constitution, “A person who is tried for a criminal offense shall not be compelled to give evidence at the trial”.
The law requires warrants for arrests, except when police observe a crime being committed, believe that a person is about to commit a crime, or conclude that evidence will be lost if arrest is delayed. Detainees must be charged with the violation of a statute within a reasonable time, usually within 48 hours form the arrest, or, in remote areas, as soon as the judicial officer appears. Lengthy pretrial detention is common. At Mawelawela, the only female detention facility, detainees are not held separately from convicts. Several children live with their mothers in the facility. Female juveniles are also held in the women's correctional facility, although they sleep in different quarters. There is a bail system, and suspects can request bail at their first appearance in court, except in serious cases such as murder and rape. The Constitution prohibits torture and other inhuman practices. However, this provision is located in the “policy” section of the constitution and it is not enforceable in any court or tribunal. Section 21(2)(c) of the Constitution provides that a person charged with a criminal offense shall be entitled to legal representation at the expense of government in the case of any offense which carries a sentence of death or life imprisonment. However the country does not have a legal aid system, save for pro bono counsel offered by the state in capital cases (detainees may consult with a lawyer of their choice, but the government pays for defense counsel only in cases in which the potential penalty is death or life imprisonment). Otherwise, defendants in superior and magistrate courts may hire counsel at their own expense. Defendants can question witnesses against them and present witnesses and evidence on their own behalf. Defendants and their attorneys have access to relevant government-held evidence, generally obtained during pre-trial consultations with the public prosecutor's office. Defendants and prosecutors have the right of appeal, up to the Supreme Court.
Defendants in traditional courts are not permitted formal legal counsel but may speak on their own behalf, call witnesses, and be assisted by informal advisors.
- 2009 Prison Population: 2.628 (based on an estimated population of 1.2 million). 27.5% of the prison population is composed of pre-trial detainees or remand prisoners.
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