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MINISTRY OF JUSTICE AND CONSTITUTIONAL AFFAIRS

STRATEGIC PLAN

2013-2017

MOJCA Strategic Plan 2013 -2017 |

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TABLE OF CONTENTS

ACRONYMS .............................................................................................................. 4

EXECUTIVE SUMMARY ............................................................................................... 6

SUMMARY OVERVIEW OF DEPARTMENTS’ AND COMMISSIONS’ FUNCTIONS .......................... 8

BACKGROUND: RECENT REFORMS AND POLICIES ........................................................... 10

THE MOJCA AND ITS STRATEGIC CHALLENGES .............................................................. 11

1. Administration ..................................................................................................... 12

2. Attorney General .................................................................................................. 12

2.1 Legislative Section ................................................................................................ 12

2.2 Litigation Section .................................................................................................. 14

2.3 Constitutional Affairs .............................................................................................. 14

2.4 Legal Aid ........................................................................................................... 16

3. Commission on Human Rights and Public Administration, Integrity Commission ............................ 17

4. Elections and Boundaries Commission ........................................................................... 19

5. Anti-Corruption Commission ..................................................................................... 20

6. Judicial Service Commission ..................................................................................... 21

7. Director of Public Prosecutions ................................................................................... 24

8. Correctional Services .............................................................................................. 24

9. Judiciary ............................................................................................................ 26

PLAN OF ACTION ..................................................................................................... 33

1. ADMINISTRATION OF THE MINISTRY OF JUSTICE ...................................................... 34

2. ATTORNEY GENERAL ......................................................................................... 35

2.1 Legislative Section ................................................................................................ 35

2.2 Litigation Section .................................................................................................. 36

2.3 Constitutional Affairs Section..................................................................................... 37

2.4 Legal Aid System .................................................................................................. 41

3 COMMISSION ON HUMAN RIGHTS AND PUBLIC ADMINISTRATION and INTEGRITY ........... 42

4 ELECTIONS AND BOUNDARIES COMMISSION ........................................................... 46

5 ANTI-CORRUPTION COMMISSION .......................................................................... 48

6 JUDICIAL SERVICE COMMISSION ........................................................................... 51

7 DIRECTOR OF PUBLIC PROSECUTIONS .................................................................... 54

8 CORRECTIONAL SERVICES ................................................................................... 56

9 SUPREME COURT ............................................................................................... 59

10. HIGH COURT ..................................................................................................... 61

11. MASTER OF THE HIGH COURT .............................................................................. 62

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12. MAGISTRATES’ COURTS ...................................................................................... 63

13. SMALL CLAIMS COURTS ...................................................................................... 64

14. INDUSTRIAL COURT OF APPEAL ............................................................................ 65

15. INDUSTRIAL COURT ........................................................................................... 66

16. JUDICIAL COMMISSION ....................................................................................... 67

17. SWAZI TRADITIONAL COURTS .............................................................................. 68

LAW REFORM LIST (NON-EXHAUSTIVE) ........................................................................ 69

IMPLEMENTATION AND MONITORING .......................................................................... 74

a. Mechanism ......................................................................................................... 74

b. Reporting Template ................................................................................................ 76

ANNEX .................................................................................................................. 77

REFERENCED DOCUMENTS ........................................................................................ 77

FOREWORD

The Ministry of Justice and Constitutional Affairs is pleased to present this strategic plan for 2013 – 2017.

This document, the first of its kind for the Ministry outlines our programme of action for the next 5 years. It is

a product of a broad stakeholder consultative process that included Government Ministries; Specialized

Commissions; Professional groups and representatives of Civil Society Organizations and other relevant

stakeholders. Their inputs were refined by the Ministry's technical teams and validated in a stakeholder review

workshop on the 11th September 2012 when this document was finalized. We are honored that this Strategic

Plan was subsequently presented to and approved by the Cabinet of His Majesty's Government at the end of

2012.

The Constitution of Swaziland Act No. 1 of 2005 mandates the implementation of the Constitution on all

citizens both in the public and private sectors of the Kingdom of Swaziland. In this regard, relevant

Commissions and Departments have been created and fully empowered to implement specific Constitutional

provisions including the active promotion and preservation of constitutional rights of all citizens; increase the

efficiency and effectiveness of justice service delivery to the public and strive for strengthened coordination of

the various organs or Commissions under the Ministry.

Under the Constitution, the Ministry of Justice and Constitutional Affairs is tasked with the administrative

oversight for ensuring that all Constitution-related initiatives and activities are coordinated. By articulating

and elaborating on the roles and responsibility of each of the Departments and Commissions under the

Ministry, this Strategic Plan is therefore a critical accountability mechanism that ensures that the synergy of all

stakeholders are harnessed into one cohesive force that contributes to a common objective.


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Let me specially recognize and thank the United Nations Development Programme (UNDP) for their

partnership and valuable assistance and technical support in the development of this strategic plan. The

expertise of Dr Tilman Hoppe ensured that this strategic plan not only gives rhythm and reason for our

immediate programmatic interventions but enables us to create a vision of our development path and growth

trajectory over the short term.

May I also commend the valuable input, effort and dedication of the Ministry’s professional staff for

facilitating a truly consultative process that resulted in this consensus document.

Hon. Senator Chief Mgwagwa Gamedze

Minister for Justice and Constitutional Affairs

ACRONYMS

ACC Anti-Corruption Commission

ACHCR African Commission on Human and Peoples’ Rights

Admin Administration of the MOJCA

AttGen Attorney General

CBO Community Based Organisations

ChiefJ Chief Justice (of the Supreme Court)

CHRPA Commission on Human Rights and Public Administration

ComSC Commissioner of Small Claims Court

ConAffairs Constitutional Affairs Section

DPPros Director of Public Prosecutions

EBCom Elections and Boundaries Commission

ECOSOC Economic and Social Council (UN)

EISA Electoral Institute for Sustainable Democracy in Africa

HCourt High Court

HMCS His Majesty’s Correctional Services

IndC Industrial Court


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IndCApp Industrial Court of Appeals

IntCom Integrity Commission

JCom Judicial Commissioner

JSCom Judicial Service Commission

kE Thousand Emalangeni (“kilo Emalangeni”)

MagCt Magistrates’ Court

MastHC Master of the High Court

MoJCA Ministry of Justice and Constitutional Affairs

MoE Ministry of Education

NHRIs National human rights institutions

Paris Principles UN Principles relating to the Status of National Institutions (General

Assembly resolution 48/134, 20 December 1993)

PrevCorruptAct Prevention of Corruption Act, 2006 (Act No. 3 of 2006)

PrMag Principle Magistrates

Registr Registrar

SACRO Swaziland Association for Crime Prevention and Rehabilitation of

Offenders

SADC Southern African Development Community

SIM Special Investigative Means

SuprCourt Supreme Court

UN United Nations

UNCAC United Nations Convention Against Corruption

UNDP United Nations Development Program

y year


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EXECUTIVE SUMMARY

The full implementation of the Constitution remains imperative for all public and private sectors in

the Kingdom of Swaziland. In this implementation process, the Ministry of Justice and Constitutional

Affairs will play a pivotal role. To take up this challenge, a coordinated approach of all Departments

and Commissions is necessary, which shall be provided for by this Strategic Plan. The vision of the

Ministry of Justice and Constitutional Affairs is a society, where Justice, the Constitution, and human

rights prevail in every aspect.

The overall objectives of the Strategic Plan are:

1. All Commissions and Departments of the Ministry are fully empowered to implement the

Constitution and to actively preserve the constitutional rights of all citizens

2. All public stakeholders and all citizens are aware of the Constitution, and put it into practice

3. Increase efficient and effective justice service delivery to clients

4. Strengthen coordination, transparency and inclusiveness with all stakeholders

The core values of the Ministry of Justice and Constitutional Affairs are:

1. Professionalism

2. Accountability

3. Transparency


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4. Respect

5. Empathy

Each Department and Commission will contribute to the achievement of these overall

objectives. Key reforms will include:

Continued harmonization of all legislation with the Constitution

Operational set-up of the Commission on Human Rights and Public Administration inter

alia for comprehensive investigations

Conducting elections fully in line with international standards

Implementation of the national anti-corruption policy

Appointments, promotions and disciplinary proceedings facilitated by the Judicial

Service Commission maintain to be based on objective and transparent criteria

An integrated, IT-based case management system for the Director of Public

Prosecutions, the Judiciary, and Correctional Services

A system of objective case assignment in courts

As a focal point and driving force for implementing the Constitution, the Ministry will establish a

Constitutional Affairs Section under the Attorney General.

A Monitoring Body – with representatives from all Ministry Departments and Commission – will be

established to oversee the implementation of the Strategic Plan. During the first year of

implementation, this Body will meet every 3 months, and subsequently meet every 6 months. All

progress reports will be open to the public online.

The Strategic Plan draws on consultations conducted between the months August-September 2012

with State and NGO representatives, reviews of other strategic documents, and on regional and

international reports (for a selection of key documents see Annex 0).

UNDP generously supported the drafting of this Strategic Plan.


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SUMMARY OVERVIEW OF DEPARTMENTS’ AND COMMISSIONS’ FUNCTIONS

Name Function

Administration o Monitoring of programs

o Coordinating the drafting and controlling of the budget

o Human resources management support

o Filing

o Transportation coordination

Attorney General o Legal advice to Government, Parliament

o Drafting and reviewing all laws

o International treaties

o Representing the State in courts

o Constitutional affairs

Commission on Human Rights and

Public Administration

o Investigating human rights and public administration

complaints

o Public awareness

o Verifying asset declarations

o Implementing the code of conduct

Elections and Boundaries

Commission

o Registration of voters

o Ensuring fair elections

o Public education

o Delimitation of boundaries of Tinkhundla

Anti Corruption Commission o Investigation

o Prevention

o Public education

Judicial Service Commission o Advising on judicial and other appointments, removals

and disciplinary measures

http://www.gov.sz/index.php?option=com_content&view=article&id=341&Itemid=350






http://acc.gov.sz/


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Name Function

o Advising on the judiciary

o Processing complaints about the judiciary

Director of Public Prosecutions o Guiding criminal investigations

o Prosecutions

Correctional Services o Managing 12 Correctional Centres, 1 college, and

1 Head Office

o Rehabilitation

Judiciary o Supreme Court

o High Court

o Magistrates’ Courts

o Industrial Court of Appeal

o Industrial Court

o Judicial Commissioner

Master of High Court o Administering estates of deceased persons

o Administering the liquidation of companies

o Other functions under the Estate Administration Act of

1902

Judicial Commissioner’s Office o Administration of Traditional Courts

o Review of Criminal Cases from Traditional Courts

Chief Justice o Head of Judicial Administration

Supreme Court Registrar o Administration of Supreme Court

o Review of the administration of courts

o Public awareness

High Court Registrar o Administration of the High Court

o Public awareness

Judicial Commissioner o Administration of Swazi Traditional Courts

o Review of Criminal Cases from Traditional Courts




http://www.swazilii.org/sz/judgment/supreme-court

http://www.swazilii.org/sz/judgment/high-court

http://www.swazilii.org/sz/judgment/industrial-court-appeal

http://www.swazilii.org/sz/judgment/industrial-court


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BACKGROUND: RECENT REFORMS AND POLICIES

Following a decade-long process, Swaziland adopted a written Constitution in 2005, which

came into force in 2006. It is the first post-independence Constitution for Swaziland with a Bill

of Rights. The Constitution tries to balance royal power, traditional institutions, customary law,

statutory legislation, respect of human rights, and political reform. On an institutional level, the

Constitution created several new independent commissions, such as the Commission on Human

Rights and Public Administration, the Integrity Commission, the Elections and Boundaries

Commission, and the Judicial Service Commission. In the seventh year of its being in force,

several challenges remain for implementing this Constitution and for making all commissions

fully operational. These challenges concern more or less all sectors of society.

Prior to the coming into force of the 2005 Constitution, Swaziland reached for broad reforms,

aimed at enhancing the life of all citizens. The National Development Strategy2 of 1999 covers

the time span until 2022, and contains reform measures on legislation, its effective

implementation, and on the reform of the Judiciary. It guided and influenced the Poverty

Reduction Strategy and Action Plan3, which was adopted in 2005. The Poverty Reduction

Strategy and Action Plan addresses reforms relevant to the Ministry of Justice and

Constitutional Affairs in the fields of “Legal Protection of the Poor” (Objective 6.4) and of the

“Judicial System and Law Enforcement” (Objective 8.5.2).

Shortly after adoption of the Constitution, the Government’s Programme of Action for the years

2008-2013 acknowledged that “it will be necessary to review our own Constitution during this

Administration’s term of office” (No. 21). Furthermore, in 2010, the Swaziland Investor

Roadmap4 for the years 2011-2013 was adopted. It aims, among other, at the “Expeditious

Litigation and Finalization of Commercial Cases” (Objective 2), an action mostly to be

completed before the end of 2012.

All policies shed light on the justice sector from a particular angle and only on a certain part.

This constellation calls for a comprehensive policy on the justice sector as a whole.

2 Annex 0. 3 Annex 0. 4 Not published online yet.


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THE MOJCA AND ITS STRATEGIC CHALLENGES

The implementation of the Constitution is a task of all public and private stakeholders in the

Kingdom of Swaziland. However, a unique and pivotal role in this process lies ahead of the

Ministry of Justice and Constitutional Affairs: It is responsible for drafting and reviewing the

legislation that affects each and every citizen (Attorney General); and it comprises the

Judiciary, which has the last say on interpreting the Constitution and all other laws. Within its

competency are the Elections and Boundaries Commissions, which oversees the election of the

legislative power and thus, the heart of a democratic system, secondly the Commission on

Human Rights and Public Administration, which ensures the prevailing of human rights

throughout society. Furthermore, the Anti-Corruption Commission and Integrity Commission

ensure that the laws and institutions under the Constitution are not bent and abused for personal

profit. In addition, the Director of Public Prosecutions and the Correctional Services guarantee

that all criminal violations of citizens’ and the State’s constitutional rights are adequately

addressed. The Judicial Service Commission plays a critical role in appointments to most key

functions in the governance system of Swaziland.

With the exception of the Administration and the Correctional Services, all Departments and

Commissions enjoy constitutional and/or statutory independence. The constitutions of most

countries of the world grant such independence to commissions to guarantee they can fulfil

their mandate free from political influence. Under international conventions and standards, the

judiciary and commissions such as for anti-corruption, elections, human rights, or auditing

belong to the category of independent state bodies. Obviously, any entity with constitutional

independence is still fully accountable to the people and the State it serves. This accountability

includes reporting to public stakeholders such as the government, head of state, parliament, and

society at large; being subject to the audit mechanisms; pro-actively coordinating tasks with all

relevant public and private stakeholders; etc. In short: Independence relates mainly to substance

matters, but only to a certain degree to organisational matters.

Some of the Ministry Departments and Commissions have drafted their own strategy, some of

which have been put in force:

- Commission on Human Rights and Public Administration, Strategic Plan 2012-2015

(Draft)

- Elections and Boundaries Commission, Strategic Plan 2010-2013 (Draft)


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- Anti-Corruption Commission, Strategic Plan 2009-2012 (in force)

- Correctional Services, Strategic Plan 2010-2014 (in force)

- Judiciary, Strategic Plan 2007-2012 (Draft)

The two above Strategic Plans which have been in force for years were neither published

online, nor have they been easily accessible inside or outside the Ministry, nor were they

systematically connected with each other, or monitored beyond each Department or

Commission. Thus, a coordinated strategic approach within the Ministry is an apparent and

urgent need. This Strategic Plan aims at filling in the gap and making the role clear that all

Departments and Commissions being part of the Ministry have to assume in the process of

implementing the Constitution and ensuring justice for all citizens of the country.

1. Administration

The Administration is the political head of the Ministry responsible for drafting and controlling

the Ministry’s budget, for human resources, and for coordinating the Departments and

Commissions. It therefore naturally takes on the function of developing and monitoring the

strategic direction of the Ministry. The Administration has taken several steps in the past to

increase transparency on and efficiency of the Ministry’s work. However, important

information is still not yet online, such as the Annual Report of the Ministry, all strategic

documents and reports on the Departments and Commissions, key data on the Ministry etc.

Even though only a fraction of less than 10% of all of the population has access to the Internet,

all documents about the Ministry should be available online to interested citizens, civil society

initiatives and the media.

2. Attorney General

The Attorney General is currently divided into two sections: the Legislative and the Litigation

Section.

2.1 Legislative Section

The Attorney General performs the key function of any Ministry of Justice: legislative

drafting and legal advice for the executive. The coming into force of the Constitution in

2006 brought along an enormous task for the Legislative Section: All existing legislation

has to be reviewed, and possibly reformed, for conformity with the Constitution. In

various national and international documents (see below chapter 0.1), a number of laws




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is mentioned which obviously contain provisions in need for harmonization with the

Constitution. Furthermore, the courts have in various instances called for codifying laws

to ensure the necessary predictability: “It is therefore of utmost importance that the

competent authorities take steps to codify our substantive criminal law or the common

law applicable here.”5 The “Law Reform List” (see below Chapter 0) enumerates, non-

exhaustively, laws that are in need of constitutional review and reform. Part of the work

has already been addressed, inter alia with support on legal drafting by the

Commonwealth Secretariat.

Currently, the Ministry is responsible for legal drafting. In some constellations, this might put

the Attorney General in a conflict of interest, whenever the interests of Parliament and the

Government differ on certain legislation. It will therefore be necessary in the future that

Parliament will have its own legal drafting and constitutional expertise for independent advice.

The Constitution does not elaborate on the process of legal drafting before a draft bill reaches

Parliament. It will be necessary to make the steps of legal drafting transparent to the public and

to maintain participation of public and private stakeholders in order for buying in the maximum

of expertise possible for each draft bill. Such a participatory approach includes:

Consultations and public display of drafts for comments (prior to submission to

Parliament)

Notification of NGOs and interest groups that are registered for legislative lobbying

Possibility of submission of statements and conducting of consultations regarding draft

laws

Option of roundtables/public hearings for important or complex legislative projects

Review of all relevant laws by the Anti-Corruption Commission on corruption risks, to

the Commission on Human Rights on human rights issues, and to the Constitutional

Affairs Section on constitutional issues

In terms of transparency of legislation, Swaziland has sanctioned over 700 laws, only 12 are

available on the Swazilii database, this amount to less than 2 percent of all legislation. Noted

again is that only a fraction of less than 10% of all citizens have access to internet services, in a

5 Supreme Court, R v Motsa, Case No 37/2010, 31 May 2012, [2012] SZSC 6.


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state of law all legislation should be available at no cost to all citizens. Hence, putting all

legislation online will be complemented by the public availability of a print version at key

points all over the country. The laws of Swaziland are currently only collected and distributed

by a foreign private editor. In the interest of national autonomy and legal governance, the

Ministry will ensure that all legislation is in its “possession”, even if this is done only through

adequate mutual agreements with for-profit law editors.

2.2 Litigation Section

The Attorney General represents the Government and Chiefs in all legal proceedings,

and legally reviews all Government contracts. Even though the line ministries have their

own legal advisers, all representation in court is done centrally by the Attorney General

wherever the State is a party to the proceedings. This puts a high workload on the

Litigation Section. In order to avoid excessive backlogs, sufficient staffing will be

necessary in the future.

Similar to the process of legal drafting, the Attorney General is representing the Parliament in

court. In constellations, where Parliament and Government pursue differing interests in court

this might put the Attorney General in a conflict of interest. It will therefore be necessary, in the

future, that Parliament is able to represent itself in court based on independent advice.

2.3 Constitutional Affairs

The 2005 Constitution is in force since 2006. Many steps have been taken in the past

seven years for its implementation: New legislation and executive practice is largely

based on the Constitution; several new institutions and commissions have been set up as

required; court decisions make reference to the Constitution as a source of law; some

previously open questions on the interpretation of the Constitution are now answered by

case law.

However, many challenges remain until the Constitution will be the supreme source of law, and

will be fully absorbed and naturally practiced in all parts of society: There is no systematic

jurisprudence on the Constitution available; given this lack of dogmatic guidance, courts are

sometimes hesitant to take on constitutional questions; in large parts of society, the Constitution

and its Bill of Rights are little known; rights granted under the Constitution are often not

claimed or enforced; many central questions on interpreting the Constitution, and on its future


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development are still unsolved. In addition, there is no central unit to strategically address

challenges to the Constitution’s implementation.

Whereas in many other countries a constitutional court is often the driving force for

constitutional awareness and implementation, such a body is missing in Swaziland. However,

previous policies have rightly pointed to the necessity of establishing such a (part- or full-time)

court: “Following the adoption of the Constitution and the Bill of Rights, the Ministry of Justice

and the Attorney General’s Office shall establish a Human Rights and Constitutional Court to

hear all cases concerning human rights and constitutional abuse and violation.”6 The

Constitution 2006 features a particularity that distinguishes it from constitutions in the region:

Swaziland is a Kingdom with the King exercising a central function in the oversight of

governance and the appointment of high public officials. Comparing the particularities of the

Swazi Constitution with such of the region would allow building constitutional jurisprudence in

Swaziland. The full potential from this constitutional comparison is not yet unlocked.

In view of all above challenges, the Ministry will set up a Constitutional Affairs Section. Given

the legal focus of this future Section and its strong ties with legal drafting and litigation, it

naturally falls under the supervision of the Attorney General. The Constitutional Affairs Section

will exercise the following functions:

1. Advise central Government, Regions, Municipal Governments and Tinkhundla on

constitutional matters

2. Advise the Parliament on constitutional matters

3. Review draft legislation on constitutionality

4. Review and annually report legislative needs for implementing the Constitution; initiate

respective law drafting

5. Strategic review and development of the Constitution (reform proposals)

6. Lay foundation for a future (full- or part-time) Constitutional Court or a specialised

Constitutional Division at one of the existing Courts

7. Build jurisprudence and raise awareness on constitutional law throughout all public and

private sectors

8. Serve as secretariat for the monitoring of the Ministry’s programs and policies

6 Poverty Reduction Strategy and Action Plan (2006), Volume 2, No. 8.1.9 (Annex 0).


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9. Coordinate donor assistance on implementation of the Constitution

10. Amicus curiae (literally, ‘friend of the court’): Under Common Law intervene in

appropriate cases, to which the State is not a party, but which involve constitutional

issues of special interest, and make legal submissions on the Constitution

The Constitutional Affairs Section will not be endowed with the standing for bringing suit in

court against legislation for being unconstitutional: The Section is part of the Attorney

General’s Office, and would be in conflict of interest when trying to nullify legislation that has

originated from or been reviewed by that same Office. However, the independent Commission

on Human Rights and Public Administration can take on this function (see below at Chapter

D.3).

2.4 Legal Aid

Probably one of the most urgent tasks at this stage is the introduction of a comprehensive

legal aid system. Even though the Constitution guarantees equality before the law, a fair

hearing and the right to legal representation, access to justice continues to be a challenge

due to the cost of legal services. Several previous policies and international reports have

pointed out this lack of a legal aid system in Swaziland (see Annex 0). As the

establishment of a legal aid system is one of the most important objectives of the

Ministry, a special task force will be established under the Attorney General for

reviewing and drafting appropriate legislation, considering inter alia the “Final Report

on National Feasibility Study for the Establishment of a Legal Aid System for the

Kingdom of Swaziland” (LKM/UNDP 2011), the “Lilongwe Declaration on Accessing

Legal Aid in the Criminal Justice System in Africa” (2004), the “Access to Legal Aid in

Criminal Justice Systems in Africa Survey Report” (2011), and in particular the

following principles:

Removal of barriers to the provision of legal services by non-practising lawyers

(NGO, CHRPA lawyers etc.)

Establishing suitable professional fee tariffs that take into account the rate of fees

charged to indigent clients

Mandatory obligation on all practising attorneys to provide a determined level of pro

bono services to indigent citizens per year as a condition for practice


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Allowing entering into contingency fee arrangements between attorney and client,

where the client is indigent

Allowing for the service of pupillage and articles in legal aid organisations that are

recognised for the purpose of admission as attorneys or advocates of the High Court

Provision of legal aid work by students of the university accounting for a

compulsory component of their practical law course in the LLB Programme

Provision of a compulsory period of service by Pupil Crown Counsel at the Legal

Aid scheme prior to their engagement at the Attorney General’s and the DPP’s

Chambers

The function of the Constitutional Affairs Section and the Commission on Human Rights and

Public Administration to take on appropriate cases for legal action will complement the legal

aid system.

3. Commission on Human Rights and Public Administration, Integrity Commission

In 2009, the King appointed the Commissioner and five Deputy Commissioners. However, the

Commission has yet to recruit a sufficient number of staff in order to become operational.

Despite this lack of staff, and even though the Commission has not rolled out a publicity

campaign on its functions, yet, it has received already 57 complaints so far. It is fair to say that

this figure will multiply by a vast number once citizens will be fully aware of the operating

Commission and will have easy access to its services.

Challenges to human rights in Swaziland have been documented by various international

reports (see Annex 0). They mainly derive from the absence of an (operational) oversight body

on human rights, a lack of awareness of many citizens on their rights, pre-constitutional

legislation not being in line with the Constitution, the Bill of Rights being not, yet, fully

absorbed into the practices of the public administration, of judicial proceedings not always

fulfilling all standards of an independent and fair judiciary, traditional law and its procedures

not always being constitutional in every aspect, and the absence of a legal aid system.

In addition, a specialised constitutional/human rights court, as foreseen by earlier policies,7 is

not, yet, established. The cases submitted to the Commission so far already reflect these

7 See above at note 6.


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challenges: a large part of cases concerns the right to fair hearings and administrative justice,

the prohibition of inhumane or degrading treatment, property rights, and rights of workers.

The current offices of the Commission are not centrally located and are not easily accessible by

public transportation. In addition, parts of the public have restricted access to parliamentary

grounds on which they are situated. The Commission will therefore take seat with all staff in

Mbabane.

The work of the Commission will gain full impact if it will not only rely on the submission of

complaints, but will pro-actively monitor institutions and sectors of society with real or

perceived challenges in human rights. Furthermore, the Commission and its staff will – on a

discretionary basis – provide legal advice wherever appropriate and take up legal action on

outstanding cases challenging legislation and representing complainants in court under

corresponding legislative amendments. Regular networking with national private human rights

organisations will put the expertise and experience of those citizen’s initiatives to full use.

Transparency and regular reporting on the Commission’s work will complement this

networking; up to now not even the names of the Commissioners are available on the

Commission’s website.

Once being operational, the Commission can also take on its function as Integrity Commission.

Processing asset declarations and enforcing the code of conduct are typical anti-corruption

tools. However, the Anti-Corruption Commission was not operational when the Constitution

was drafted and came into force, and the Constitution assigned those anti-corruption functions

to the Integrity Commission. Therefore, the anti-corruption functions of the Anti-Corruption

Commission and of the Integrity Commission will need to be aligned, in order to facilitate an

overall effective anti-corruption regime.

The declaration of assets and liabilities will be in line with international standards regarding its

form (template), the verification of data submitted, sanctions for failure of submission or false

statements, and intra-agency and public transparency of the declarations (for examples of good

international practices see Annex 0). Similar holds true for the forfeiture of assets (sect. 242 (2)

of the Constitution) in cases of inexplicable wealth, and for the Leadership Code of Conduct.


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A draft “Human Rights and Public Administration Commission Bill” of 2011, putting the

constitutional provisions on the Commission (sect. 163 f.) into practice, still needs to be

finalised and will ensure that the Commission can meet all its strategic objectives.

4. Elections and Boundaries Commission

All pre-constitutional laws regulating elections (Electoral Provisions Regulations 1968,

Electoral Act 1971, Elections Order 1992, Voters Registration Order 1992, Electoral Office

Order 1998) need to be revised in view of the Constitution and of international standards.

Voting is only a right in its full sense if it can be enforced: In this context, a clear procedure

needs to be defined for legally challenging election procedures and outcomes.

International observer missions (such as the “EISA Election Observer Mission Report

Swaziland House of Assembly Election” (2008)8, the “Report of the Pan-African Parliament

Election Observer Mission to Swaziland” (2008)9, the “Report of the Commonwealth Expert

Team, Swaziland National Elections” (2008)10

), and the “SADC Election Observer Mission,

Interim Statement, 20/D9/O8”11

contain further recommendations that will affect the legislative

review as well as procedural aspects of elections.

A computerised voter registration system and full transparency on the register will prevent any

irregularities in upcoming elections, above all the national election 2013. The need for

transparency concerns also documents such as election timetables, annual reports, the

Commission’s strategy, and the results of past elections, which in the past have not been

available on the Commission’s website.

The Commission will expand the number of polling centres and stations and thus, enhance their

proximity to all citizens. With regards to boundary delimitations, the Commission will reach

out to the public regarding the process and its results. Training of all voting personnel involved

in elections, and civil and voter education will continue to be an ongoing task for the

Commission.

8 http://www.eisa.org.za/PDF/sw2008eomr.pdf. 9 www.pan-africanparliament.org/Controls/Documents.aspx?DID=1045. 10 See Annex 0. 11 www.eisa.org.za/PDF/swa2008sadc.pdf.


http://www.eisa.org.za/PDF/sw2008eomr.pdf

http://www.eisa.org.za/PDF/swa2008sadc.pdf


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The Strategic Plan of the Elections and Boundaries Commission 2010-2013 addresses already

most of the above issues, and provides for a budget to achieve the respective goals. Its

implementation will continue until 2013 and beyond, until it will be replaced by a possible

follow-up Plan.

5. Anti-Corruption Commission

The Anti-Corruption Commission was re-established in 2008 under the 2006 Prevention of

Corruption Act. The main challenge of the Commission will be to oversee implementation of

the National Anti-Corruption Policy 2013-2017. As for criminalisation of corruption, the

Commission has submitted a total of 18 cases to the Director of Public Prosecution since March

2008. This equals less than 4 cases per year. At the same time, the Commission reported a

backlog of 362 cases at the end of 2011. The substantial backlog and the low number of cases

ready for prosecution need to be reviewed in view of the organisational set up and the number

of staff necessary for investigations.

Asset declarations are submitted to a different entity, the Integrity Commission (see above D.3).

Such a dual system is in line with international standards12

and the practice in other African13

countries. However, the Anti-Corruption Commission (as well as other law enforcement

agencies) needs to have unfettered access to the declarations. The Constitution inherently

allows for such intra-agency access to the declarations because they are a logical prerequisite of

investigating and building up cases of illicit enrichment under sect. 244 (5) and 242 (2) of the

Constitution (and art. 34 PrevCorruptAct). Sect. 244 (4) of the Constitution does not support the

contrary conclusion, as it relates to asset declaration only as formal evidence for court or the

Integrity Commission. As the system of asset declarations as well as the code of conduct is part

of typical anti-corruption tools, the Integrity and Anti-Corruption Commission will cooperate in

both fields.

It is necessary that the Anti-Corruption Commission has appropriate independence (Art. 6 (2)

UNCAC). Otherwise, it might refrain from investigating cases where political retribution could

be involved, as for example with high-profile suspects. In this context, it seems misbalanced

that all other Commissions have constitutional status, but not the Anti-Corruption Commission,

which was only re-established after the adoption of the Constitution. Future constitutional

12 See Annex 0. 13 See for example Kenya (Annex 0).

http://acc.gov.sz/


21

review should therefore aim at reflecting the Commission in the Constitution, as is done in

other countries in the region.14

In order to further strengthen the pro-active profile of the Commission, it should carry out

integrity tests in the future. They have proved to be one of the most effective anti-corruption

tools internationally,15

including in the region.16

Public awareness and public acceptance of the Commission’s work depend on the full

transparency of its work. The Commission will therefore publish not only the National Anti-

Corruption Policy, but also its own strategy and information on the structure of its departments,

number of staff, detailed case statistics, etc., as is the practice with other anti-corruption

agencies.17

6. Judicial Service Commission

The Judicial Service Commission is the body overseeing appointments to key functions in the

justice sector, and administering the judiciary. In order to guarantee the independence of the

judiciary as necessary in a state of law, the Commission itself needs to exercise full

independence. In this context, the independence of the Judicial Service Commission itself will

need review: Whereas it is international standard that the body overseeing judicial appointments

is independent from the executive and legislative, and is therefore in most cases elected by an

electoral college consisting of all judges,18

the Constitution of Swaziland clearly foresees that

members of the Judicial Service Commission are all appointed by the King.

In order to further facilitate the selection and promotion of judges according to objective criteria

(as well as of all other officials appointed or reviewed by the Commission), the Commission

will draft and publish such criteria, which will eventually find entrance into the relevant

14 See for example Art. 79 Constitution of Kenya: “Parliament shall enact legislation to establish an independent ethics and anti-corruption

commission […].” Art. 108A Constitution of Zimbabwe: “There shall be an Anti-Corruption Commission […].” 15 See Annex J.1. 16 See for example Kenya, Ethics and Anti-Corruption Commission Annual Report 2010/2011, p. 18 (“Integrity Testing Programme”),

www.eacc.go.ke/docs/KACC-ANNUAL-REPORT%202010-2011.pdf. 17 See for example the Annual Report 2010/2011 of the Ethics and Anti-Corruption Commission in Kenya, www.eacc.go.ke/docs/KACC-ANNUAL-REPORT%202010-2011.pdf. 18 See Opinion no 1 (2001) of the Consultative Council of European Judges (CCJE) Annex J.1.

http://www.eacc.go.ke/docs/KACC-ANNUAL-REPORT%202010-2011.pdf




22

legislation. These criteria will take into account regional and international standards19

and

particularly inter alia the following principles:

Public announcement of all vacancies

A points system (e.g. out of a maximum of 10 points, up to 2 are allocated to

qualification, up to 3 to efficiency, up to 3 to quality of judgements, and up to 2 to

integrity)

Only job-relevant merits count (based on merit, having regard to qualifications,

integrity, ability and efficiency; seniority being not acceptable as the governing

principle determining promotion)20

Grounds for exclusions (criminal or disciplinary record etc.)

Written explanations for the grading of each candidate

Access by all candidates and the public to the written explanations

Appeals process in case of denial of promotion

Recusal of Commission members in cases of conflict of interest

In order to provide ethical guidance to judges and to ensure full accountability, the Commission

will draft and publish a judicial code of conduct (in line with the Bangalore Principles of

Judicial Conduct21

). While the Leadership Code of Conduct will apply to judges, it falls short

of, and parts are not relevant to, recognised standards of judicial conduct.22

In addition, the

Disciplinary Inquiry Regulations of 1972 need review. These criteria will take into account

regional and international standards23

and particularly inter alia the following principles:

Violations of the future code of judicial conduct should constitute disciplinary offences

Disciplinary procedures should be in line with constitutional, regional and international

standards

Possibility of appeal

Timelines for concluding the procedure

19 See Annex J.1. 20 Opinion no 1 (2001) of the Consultative Council of European Judges, see Annex 0. 21 See Annex 0. 22 Dube/Magagula (Annex 0). 23 See Annex 0.


23

The Commission still needs full alignment with the Ministry’s standard of transparency and

will provide at least annually information online on the following fields of the Commission’s

work:

Selection and promotion (number of vacancies, courts concerned, number of applicants,

name of successful candidates etc.)

Disciplinary procedures and sanctions (number of investigations opened and concluded,

outcome (kind of sanctions), courts concerned)

Complaints (number of complaints, outcome (disciplinary sanctions or administrative

measure), courts concerned)

The independence and impartiality of judges also depends on them maintaining a high degree of

professional competence. Most countries of the world24

and recently, several countries in the

region25

have therefore dedicated a training institute to the judiciary. The Judicial Service

Commission will establish for this purpose systematic vocational training to judges in all

superior and traditional courts. This will require the following steps:

Assessing training needs

Developing training curricula/modules

Cooperating with existing teaching and training institutions (usage of training rooms and

structures)

Setting up a Judicial Training Board overseeing the training

Drafting of any possibly necessary legal act

Developing an economical remuneration system (reward trainer-judges through

assigning less cases or rewarding training efforts as bonus points for promotion, etc.)

Recruit trainers for giving introductory training to new judges on judicial ethics,

Constitutional Law, etc.

24 See the Opinion no 4 (2003) of the Consultative Council of European Judges, see Annex 0. 25 Kenya (2008): http://softkenya.com/law/judiciary-training-institute/; South Africa (2009):

http://www.justice.gov.za/events/2009events/20090409_judicialinstitute.html.

http://softkenya.com/law/judiciary-training-institute/

http://www.justice.gov.za/events/2009events/20090409_judicialinstitute.html


24

7. Director of Public Prosecutions

The case management of the Director of Public Prosecutions still needs to be based on

information technology and to be integrated with the respective systems of the Police, the

Judiciary and the Correctional Services.

Reports on abuse of power by law enforcement officials, such as physical abuse and wrongful

imprisonments, are damaging the trust of the public in the police force. Difficulties in

investigating incidents exacerbate the situation. Establishing a prosecutorial unit dedicated to

abuse of law enforcement officials will be one step for showing political will in investigating all

reported cases. In addition, such a unit could carry out targeted integrity tests against officers

against whom a suspicion of violence or other abuse exists. In other countries, the mere

existence of such integrity tests has had a preventive impact.26

At the same time, police stations are reported to not properly process crime reports in all cases.

The Director of Public Prosecutions should publish information on any police report (naming

the police station) that has clearly not been processed according to rules and standards.

As far as victims of sexual abuse are concerned, the success of the specialised prosecutorial

presence at the Mbabane Magistrates’ Court should be replicated in the five other Magistrates’

Courts. Further specialisation of the Director of Public Prosecutions will entail the setting up of

units dedicated to tax offences, intellectual property, human trafficking, and environmental

crimes.

8. Correctional Services

His Majesty’s Correctional Services will continue to implement their Strategic Plan 2009-2014,

which is reflected in this Ministry Strategic Plan. The case management will be based on

information technology. This will allow services to be most efficient and to be integrated with

the case management systems of the Police, Judiciary and the Director of Public Prosecutions.

One of the reasons for some of the correctional centres being overcrowded is a sentencing

practice by many courts which is strongly focused on imprisonments. As a consequence, even

26 See for example the successful tests carried out within the New York Police Department, The New York Times, 24 September 1999, Police Used in Stings to Weed Out Violent Officers,

www.nytimes.com/1999/09/24/nyregion/police-used-in-stings-to-weed-out-violent-officers.html?pagewanted=all&src=pm.



http://www.nytimes.com/1999/09/24/nyregion/police-used-in-stings-to-weed-out-violent-officers.html?pagewanted=all&src=pm


25

first-time petty offenders are sent to prison; especially with juvenile and child offenders this

practice can be counter-productive. The review of the Prison Act under the current drafting of

the Correctional Service bill, as well as the review of other legislation, would need to ensure

compliance with international standards, such as the UN “Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment”27

the availability and

application of alternative forms of imprisonments wherever such alternative forms would

benefit society. Among those alternative measures of imprisonments and ways of reducing

overcrowding in correctional centres28

are:

Home confinement, daily reporting to police, community supervision and service,

electronic monitoring, overnight confinement, extra-mural employment

Abolishment or reduction of sentences of less than six months to be considered

Removing authority for imprisonment from traditional courts to some extent

Obliging courts to consider and reject alternative sentencing options before imposing

imprisonment sentences

Setting maximum inmate levels per correctional centre and granting authority to refuse

taking on inmates above limit

Making use of community-based sanctions for probation/parole violators

In addition, any detention of prisoners beyond the statutory time limits is not only a violation of

human rights, but can also be a criminal offence. The Correctional Services are therefore under

duty to inform prisoners on their rights under sect. 136 Criminal Procedure and Evidence Act

(time limits of 31 days/six months to pre-trial detention) and pro-actively need to enforce this

provision.

Furthermore, the review of the Prison Act will have to incorporate, inter alia, the following

points:

Establishing a complaints mechanism for inmates with time limits and the option of

judicial review

A self-sustaining rehabilitation service as a mid- and long-term goal

Unconditional abolishment of corporal punishment

27 See Annex J.1. 28 See Hendrik Jacobus Bruyns, The Impact of Prison Reform on the Inmate Population of Swaziland, 2007,

uir.unisa.ac.za/handle/10500/1723?show=full.


26

The Correctional Services will further extend their transparency to the public at large. This will

involve regular participatory planning with all stakeholders involved in rehabilitation,

cooperation with the Commission on Human Rights and Public Administration, and reaching

out to citizen’s initiatives and members of the communities.

In-prison rape is an issue surrounded by taboo and shame, and the stigma of victims as well as

power structures among prisoners hinder reporting of such cases through official channels.

Nonetheless, even in comparatively well equipped and financed correctional centres, many

inmates are victims of sexual abuse.29

It is still common believe that not much can be done

when victims do not report the abuse. However, in practice the occurrence of sexual abuse in

correctional centres corresponds to how much authorities do about it. Other countries have

implemented successful programmes taking into account the special vulnerabilities of certain

prisoners (young, immigrants, people perceived to be gay or transgender, or who are physically

weak or new to incarceration). Areas covered include supervision, inmate screening for

vulnerability to abuse, medical and mental health services, reporting mechanisms,

investigations, staff training, administrative sanctions, internal monitoring, and external

audits.30

9. Judiciary

The judiciary plays a pivotal role for implementing this Strategic Plan: All rights contained in

the Constitution are only worth as much as they are enforced by the courts. Hence, fair

elections, constitutional legislation, human rights in all sectors of society, the fight against

corruption, and an effective prosecution of criminal offenders in line with the Constitution can

only take place if fully supported by a properly functioning judiciary.

The Swazi judiciary has undergone substantial reforms in the past. However, serious challenges

remain: The backlog of cases is too high for justice to be delivered in an adequate time;

officials and the courts’ clients often can hardly trace their cases through the systems of the

Police, Prosecution, Judiciary and Correctional Services; cases are assigned to individual judges

on an discretionary and sometimes arbitrary basis; quantitative performance of judges is hard to

29 See for example U.S. Department of Justice, Sexual Victimization Reported by Former State Prisoners, 2008, http://bjs.ojp.usdoj.gov/content/pub/pdf/svrfsp08.pdf. 30 U.S. Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape (May 2012),

http://www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf; U.S. Prison Rape Elimination Act of 2003, http://www.justdetention.org//pdf/PREA.pdf; Pat Kaufman, Prison Rape: Research Explores Prevalence, Prevention, National Institute of

Justice Journal No. 259, March 2008, https://www.ncjrs.gov/pdffiles1/nij/221505.pdf.

http://bjs.ojp.usdoj.gov/content/pub/pdf/svrfsp08.pdf

http://www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf

http://www.justdetention.org/pdf/PREA.pdf

https://www.ncjrs.gov/pdffiles1/nij/221505.pdf


27

monitor; neither is a systematic appraisal system in place, nor a detailed disciplinary and ethical

system; at the superior courts, several judges are still on fixed-term contracts; the Judicial

Commissioner lacks any judicial staff and technical office support; Traditional Courts largely

operate under sometimes dire conditions; women are yet to be seen on the bench of Traditional

Courts; constitutional capacity is still in the process of being built up among the judges.

In addition, the court system is not sufficiently transparent to the public. Simple information,

such as the contact details of the courts, is not available on the website of the Ministry

dedicated to the judiciary, let alone information on the roles and competences of each court, or

on relevant legislation.

One of the major tasks for the next years will be to set up a case management system at all

courts ensuring inter alia the following functions:

Assessing status and location of cases (including and above all for victims)

Checking compliance with case assignment rules

Reviewing judges’ and courts’ statistical performance

Information to court users

Integrating the system to the Police, the Prosecution, and the Correctional Services for

criminal matters, and to other courts

Controlling and following-up on defendants who have been granted bail

Case assignment needs to be based on objective criteria in all courts (including the Small

Claims Courts newly established under Act 1 of 2011) implementing, inter alia, the following

principles:

The criteria are transparent to the public

The criteria eliminate all arbitrary assignment and are so abstract that the case is

assigned to a judge before it has been lodged with court, for example:

o A judge is assigned cases by the first letter of the family name of the defendant

o Judges are assigned cases in the order of their receipt by the registrar

o Cases are assigned by a tampering proof, encrypted computer lottery


28

A system that would be fully transparent to the court user (assignment by letters) would

probably be the most replicable one and thus creating most trust among court users,

given the past arbitrariness.

Cases that are assigned to a judge cannot be reassigned unless the whole court is

reorganised (this eliminates arbitrary assignment and allows monitoring of the judges’

performance)

The following information on courts and the administration of justice will have to be publicly

available in the future:

Contact information of all courts

Overview on jurisdiction/function of courts

Court divisions

Name and functions of registrar

Number and names of judges

Number of judges with time-limited contracts

Case assignment regulation

Overview on lines of appeal

Link to Swazilii-database

VISION, CORE VALUES, AND OBJECTIVES

The vision of the Ministry of Justice and Constitutional Affairs is a society, where Justice, the

Constitution, and human rights prevail in every aspect.

The overall objectives of the Strategic Plan are:

1. All Commissions and Departments of the Ministry are fully empowered to implement

the Constitution and to actively preserve the constitutional rights of all citizens

2. All public stakeholders and all citizens are aware of the Constitution, and put it into

practice

3. Increase efficient and effective justice service delivery to clients


29

4. Strengthen coordination, transparency and inclusiveness with all stakeholders

These overall objectives are in line with the principles of leadership laid down in sect. 239 (a)

of the Constitution (rule of law, accountability, transparency).

The core values of the Ministry of Justice and Constitutional Affairs are:

1. Professionalism

2. Accountability

3. Transparency

4. Respect

5. Empathy

The specific objectives of the Departments and Commissions of the Ministry are as follows:

Administration

1. Coordinate an effective and transparent implementation of the Strategic Plan

2. Provide full transparency to the public on the Ministry’s work

Attorney General

1. Ensure constitutionality of all legislation

2. Maintain to develop future legislation in a participatory and transparent way

3. Build up constitutional awareness and capacity throughout society

Commission on Human Rights and Public Administration, Integrity Commission

1. Raise awareness on human rights in all sectors of society

2. Investigate and monitor all possible violations of human rights

3. Ensure integrity in public service by implementing the Code of Leadership

Elections and Boundaries Commission


30

1. Ensure maximum voter participation in democratic, free, fair, credible, transparent and

peaceful elections

2. Conduct elections in line with the Constitution, all other laws, and with international

standards and practices

3. Ensure full transparency on the election and on delimitations

Anti-Corruption Commission

1. Prevent corruption through transparent implementation of the National Anti-Corruption

Policy

2. Educate the public on anti-corruption legislation and the consequences of corruption,

and enlist public support and participation in combating corruption

3. Seek out and minimize acts of corruption through professional and effective

investigation

Judicial Service Commission

1. Ensure transparent and objective selection for all appointments

2. Ensure full accountability of judicial and other officials

3. Ensure an independent and objective delivery of justice

Director of Public Prosecutions

1. Ensure the prosecution of all criminal violations of constitutional and human rights

2. Ensure criminal proceedings in line with the Constitution and human rights

3. Reach out to and protect vulnerable victims in the criminal process

Correctional Services

1. Provide effective and efficient security and a values-based Justice Reform Initiative in

enabling a crime-free society


31

2. Contribute professionally to public safety by actively encouraging and assisting

offenders to become law-abiding citizens while exercising best practices in penal

reforms

Judiciary

1. Deliver efficient justice in an independent and objective way

2. Build up constitutional case law and capacity throughout the Judiciary

3. Provide full transparency on the judicial processes and institutions


COORDINATION AND INTERRELATION OF ALL DEPARTMENTS AND COMMISSIONS


PLAN OF ACTION

Administration of the Ministry of Justice

Attorney General

Commission on Human Rights and Public Administration and Integrity

Elections and Boundaries Commission

Anti Corruption Commission

Judicial Service commission

Director of Public Prosecutions

Correctional Services

Supreme Court

High Court

Master of High Court

Magistrates Courts

Small Claims Courts

Industrial Court of Appeal

Industrial Court

Judicial Commission

Traditional Courts


1. ADMINISTRATION OF THE MINISTRY OF JUSTICE

No. Action Who

2013

2014

2015

2016

2017

Additional

Funding (kE) Indicator of Success

a.

Implement the Strategic Plan’s monitoring

mechanism (see Annex 0) and provide overall

coordination

Admin X X X X X -

Monitoring reports

available from all

Commissions and

Departments

b.

Provide secretarial support to the monitoring body

(1 staff allocated part time to review draft progress

reports and ensure quality of reporting to the

Monitoring Body)

Admin X X X X X - Staff allocated

c. Dedicate one website to the Strategic Plan Admin X - Website online

d.

Publish the progress reports which are to be

submitted according to the Monitoring Mechanism

(see below Chapter 0) of all Commissions and

Departments on the Strategic Plan website

Admin X X X X X - Reports are online

e.

Provide an annual statistical overview on the staff

and salary structure of the Ministry, and make all

reports on the Ministry publicly available

Admin X X X X X Reports are online


2. ATTORNEY GENERAL

2.1 Legislative Section

No. Action Who

2013

2014

2015

2016

2017

Additional


a. Put an alphabetical list of all legislation in force

online AttGen X - List available online

b.

Make all legislation in force available online in the

languages in which the text is available, possible

through a mutually benefitting agreement with the

editor of Swazi statutes and provide a hard copy for

public use at public key points

AttGen X X X 150 All legislation online

c.

Translate all key legislation that is not available in

SiSwati for subsequent publication in print and

online

AttGen X X X X X 1.500

All key legislation is

available in English and

SiSwati

d.

Review the constitutionality of all legislation, in

particular but not exclusively of the legislation

listed in the “Law reform list” (see below at

Chapter F), by setting up working groups with the

respective Departments, Commissions and

stakeholders

AttGen X X X X X

National and

int’l expertise:

2.500

20 % of the list in Chapter 0

reviewed by end of each

year

e.

In cooperation with the Parliament’s administration

review the role of the AttGen when providing

advice to Parliament with regards to conflicting

interests between the legislative and executive

power (incl. the review of needs for building legal

AttGen X X -

Proposal for avoiding

conflicts of interest

published


No. Action Who

2013

2014

2015

2016

2017

Additional


capacity at the Parliament)

f.

Develop, adopt and publish online a guideline for

inclusion of public and private stakeholders in the

legislative procedure, including inter alia the above

mentioned principles (D.2.1) and tools, such as

concept papers for Parliament preceding the

submission of formal drafts, and publish online the

respective guideline

AttGen X X X X X - Guideline adopted,

published, and applied

2.2 Litigation Section

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Dedicate one staff as (part time) focal point for the

Master of the High Court in order to allow for

speedy service delivery of the Master

AttGen X X X X X - Regulation adopted and in

force

b. Progressively recruit 3 permanent experts for the

litigation section

Admin

(AttGen) X X X 3 lawyers: 600/y Staff recruited


2.3 Constitutional Affairs Section

No. Action Who

2013

2014

2015

2016

2017

Additional

funding (kE) Indicator of Success

a.

Organisational set up:

Operationalise the unit through the

recruitment of technical and administrative

Personnel (3 lawyers and 1 secretarial

assistant)

Allocate office space and procurement of 4

office equipments (desk, computer, printer,

telephone, fax, internet)

Training of Commission’s staff on regional

and international comparative constitutional

law standards and practices

Establish a library of national, international

and comparative handbooks and access to

relevant databases of Anglophone Africa

(e.g. Butterworths Constitutional Law

Reports, Constitutional Law of South Africa

etc.)

Admin

(AttGen) X

3 lawyers:

600/y

1 assistant:

120/y

4 offices (50

each): 200

training: 100

library: 50

ConAffairs is operational

b.

Present the new Department on a dedicated

website, among other, explaining its functions,

presenting its staff, providing the Action Plan for

the ConAffairs Section

AttGen X - Regulations available

online

c. Stock taking exercise in consultation with all public

and private (NGOs) stakeholders to research open ConAffairs - All line ministries,

Parliament, Judiciary, the


No. Action Who

2013

2014

2015

2016

2017

Additional


constitutional questions Bar, and NGOs are

consulted

d.

Develop and maintain an online publicly available

rooster of constitutional cases (listing all relevant

court decisions under the respective section of the

Constitution)

ConAffairs X - Rooster online

e.

Facilitate the drafting and updating of an online

publicly available explanatory note by an

appropriate editor taking into account the system of

the Constitution and case law, under participation

of academia, the Bar, independent national lawyers,

and international experts

ConAffairs X - Explanatory note online

f.

Facilitate the drafting and updating of a

professional commentary taking into account case

law, int’l comparisons, academic literature, under

participation of academia, independent national

lawyers, and international experts

ConAffairs X X X X

Editing and

printing costs:

50/y

Commentary available

online

g.

Set up a Commission for constitutional review

including academia, Departments and

Commissions of MOJCA, NGOs, international

advisers/observers (SADC, ACHPR etc.)

AttGen X - Commission established

h.

Review the Constitution in public and non-public

sittings, in particular with regards to separation of

powers, and independence of the Judiciary

AttGen X X - Review conducted


No. Action Who

2013

2014

2015

2016

2017

Additional


i. Adopt a report, submit it to Parliament and make it

available to the general public AttGen X -

Recommendations publicly

available

g.

Liaise with public and private training institutions

for

taking on teaching assignments

draft teaching and training curricula on

constitutional law (schools, universities,

vocational training centres)

buy in contributions from academia to

selected constitutional law issues

ConAffairs X X X X X -

Curricula are developed,

Department’s staff

contributes to teaching, law

professors provide input to

constitutional law questions

h.

Conduct events such as an annual two day

constitutional justice seminar (together with the

Supreme Court and institutions such as the

Constitutional Affairs Section, Law School, the

Bar, Traditional Courts, the Judicial Commissioner,

NGOs, regional, international, and foreign experts)

reviewing decided or pending cases and possible

legislative consequences

ConAffairs X X X X X 150/y Seminar is reported in the

media

i. Publish the proceedings for example as a Swazi

Yearbook on Constitutional Law ConAffairs X X X X X 10/y

Proceedings of the seminar

are published in print and

freely available online

j.

Facilitate the building of constitutional

jurisprudence through measures such as awarding

an annual Constitutional Law prize for the best

paper on Constitutional Law by an academician or

ConAffairs X X X X X 5/y; 25 in total

Prize is publicly announced

and awarded by a

committee composed of

ConAffairs, the Judiciary,


No. Action Who

2013

2014

2015

2016

2017

Additional


law student and publish the paper in the Swazi

Yearbook on Constitutional Law

the Bar, and Academia

k.

Organise a Constitutional Law Summer School for

students and other interested stakeholders of

different background with input from Courts, the

ConAffairs Section, the Bar, and regional and

international experts

ConAffairs X X X X

Cost for travel,

rent,

organisation:

200/y; 800 in

total

Summer school of

minimum 3 days is carried

out

l.

Liaise and cooperate with regional and

international constitutional law and human rights

bodies (e.g. ACHPR); conduct study visits to

different regional and international constitutional

law bodies, under participation of the ConAffairs

Section, the Judiciary and academia

ConAffairs X X X X X

Cost for int’l

travel for up to

5 people: 100/y;

500 in total

5 study visits carried out;

information on cooperation

available online

m.

Review needs for constitutional advise at

Parliament and support provision of corresponding

staffing/capacity to Members of Parliament in

order to enable them to exercise their oversight

function towards government

ConAffairs X Consultancy:

100

Study with

recommendations available


2.4 Legal Aid System

No. Action Who

2013

2014

2015

2016

2017

Additional


a. Recruit 1 lawyer, and one 1 junior assistant for the

duration of 2 years

AttGen

(Admin) X X X

1 lawyer: 200/y

1 assistant:

120/y

Staff recruited

b.

Review the Legal Practitioners Act and

corresponding regulations (High Court Act,

Magistrates Court Act etc.) and establish a

comprehensive system of legal aid (for more details

see above D.2.4).

AttGen X - Draft amendments available

c.

After coming into force of the amendments of legal

aid, roll out a public awareness campaign on the

new regulations and the availability of legal aid in

English and SiSwati

AttGen X X 50/y

Legal aid presented in the

media and all chiefdoms

covered by awareness

campaign


3 COMMISSION ON HUMAN RIGHTS AND PUBLIC ADMINISTRATION and INTEGRITY

No. Action Who

2013

2014

2015

2016

2017

Additional


a. Adopt the Bill on the CHRPA AttGen

(CHRPA) X -

Regulation adopted and in

force

b.

Organisational set up:

Operationalise the Secretariat through the

recruitment of the minimum technical and

administrative personnel (1 executive

secretary, 1 human rights lawyer, 6

investigators, 1 public relations officer, 1

integrity officer, 1 accountant, 2 assistants

(administration, library etc.)

Allocate office space in Mbabane and

procure 12 office equipments (desk,

computer, printer, telephone, fax, internet,

etc.)

Train Commission and Commission’s staff

on regional and international human rights

standards and practices, and on integrity

and financial declarations

Establish a library of national, international

and comparative handbooks and access to

relevant databases of Anglophone Africa

Ensure that the Commission is furnished

with a sufficient own budget for running its

CHRPA

(Admin) X (tbd)

Commission is operational

and is accredited by the

International Coordinating

Committee of NHRIs as

being compliant with the

“Paris Principles”.


No. Action Who

2013

2014

2015

2016

2017

Additional


activities

c. Progressively build up the staffing of the

Secretariat to full capacity (26 staff) Admin X X (tbd)

26 staff are recruited and

working

d. Pilot a regional branch of the Commission and

progressively reach out to all other regions CHRPA X X X (tbd)

Branches are operational

and used by the public

e.

Present the Commission on a dedicated website

(linked to the MOJCA’s website), among other,

explaining its functions, presenting its

Commissioners and staff, and informing on its

work and on human rights

CHRPA X (tbd)

Website with

comprehensive information

online

f.

Raise awareness of the Commission and of human

rights throughout all sectors of society using

different tools and distribution channels, including

a human rights library, and giving particular

attention to vulnerable members of society and

those with little access to public information

CHRPA X (tbd)

Information on the

Commission has been

distributed via different

channels and has reached

all regions

g.

Conduct targeted training on human rights in

different public sectors (including law

enforcement) and on all levels of administration

CHRPA X X X X X (tbd)

Trainings have been

conducted in all line

ministries, central agencies,

all regions, and chiefdoms

h. Develop training curricula and other relevant

material on human rights for school and university

CHRPA

(MoE) X X (tbd)

Curricula are available to

the Ministry of Education

and the University


No. Action Who

2013

2014

2015

2016

2017

Additional


i.

Review, develop and/or promote for adoption

legislation (see above D.2.1) and policies on

human rights

CHRPA X X X X X - All relevant legal drafts by

AttGen are reviewed

j.

Investigate and decide on all complaints received

with regards to human rights and public

administration, gradually building thematic and

regional specialisation in the investigative team

CHRPA X (tbd) 70 % of all cases submitted

are decided

k.

Provide legal advice and take up legal action on

suitable cases challenging legislation and

representing complainants in court (under

corresponding legislative amendments)

CHRPA (tbd)

Each year at least 4 cases

have been taken up and are

reported in the media

l.

Pro-actively monitor institutions and sectors of

society with real or at least perceived challenges in

human rights (correctional centres, law

enforcement etc.)

CHRPA X X X X (tbd)

Each year at least

4 institutions have been

monitored and the visits are


m.

Report annually on the activity of Commission and

the situation of human rights, inter alia providing

statistics, naming agencies and institutions of major

concern (as an incentive for performing well),

present the report to Parliament, to the public, the

media and make it available online

CHRPA X X X X X (tbd) Annual reports are

available online

n. Liaise nationally and internationally with other

stakeholders on human rights (contribute to

conferences, constitutional jurisprudence building,


Information on the

international cooperation is

available online


No. Action Who

2013

2014

2015

2016

2017

Additional


teaching and training, etc.); maintain contacts and

exchanges with foreign, regional and international

human rights bodies (ACHPR etc.).

o.

Establish an advisory board or conduct a regular

roundtable with representatives of NGOs in order

to include the input of civil society in the work of

the Commission

CHRPA X X X X X - Meetings of at least every 6

months

p.

In the framework of organisational, legislative and

constitutional review, align the functions between

the Anti-Corruption and the Integrity Commission

AttGen,

ConAffairs,

IntCom

X X - Possible recommendations

are adopted

q.

In cooperation with the ACC, establish and operate

an asset declaration system according to

international standards (see above D.3); ensure

asset forfeiture (sect. 242 (2) Constitution) in

cooperation with the ACC and law enforcement in

cases of inexplicable wealth


The asset declaration

system is operational and

declarations are submitted

r.

In cooperation with the ACC oversee the

developing of a sufficiently detailed code of

conduct in line with international standards

(definition of conflict of interest; consequences

such as recusal, etc.) and oversee the system of

implementation of the code in all sectors of public

administration; publish annually on the

implementation of the code

CHRPA X X X X

The legislation on the

Leadership Code of

Conduct is adopted and

annual information on its

implementation is available

online


4 ELECTIONS AND BOUNDARIES COMMISSION

No. Action Who

2013

2014

2015

2016

2017 Additional


a. Contribute to the revision of the electoral laws in

line with international standards

EBC

(AttGen) X -

Draft laws are ready for

adoption (by end of of

2013)

b. Contribute to the drafting of legislation on the EBC

in line with international standards

AttGen

(EBC) X -

Draft law is ready for


2013)

c. Define a clear procedure for legally challenging

election procedures and outcomes

AttGen

(EBC) X -

Draft law is ready for


2013)

d. Implement all recommendations of observer

missions (see above D.4) EBC X X X X X -

Follow-up reports of

international missions

document implementation

of previous

recommendations

e. Ensure an adequate number and proximity of

polling centres and stations EBC X X X X X

(See EBC-

Strategy)

Every Inkhundla has an

accessible voting station

f. Implement the Strategic Plan of the EBC EBC X X X X X - (See EBC-Strategic Plan

2010-2013)

g.

Establish a computerised voter registration before

the national election 2013; display the full voters’

register well ahead of elections

EBC X (See EBC-

Strategy)

Based on information

technology, voters’ register

is available online


No. Action Who

2013

2014

2015

2016

2017 Additional


h. Train all voting personnel involved in elections EBC X X X X X - All voting personnel

received training

i.

Facilitate civic and voter education in order to raise

awareness on the electoral rights and processes

throughout society

EBC X X X X X (See EBC-

Strategy)

Awareness raising events

have been carried out in all

regions and Tinkhundla

j. Ensure sanctioning of election offences EBC X X X X X -

All irregularities with

possible criminal

implication are reported to

law enforcement

k.

In line with the Constitution, establish a full

transparent process on delimitations and on

elections towards media and via online information

on the EBC’s website (election timetables, voting

results, EBC’s strategy, relevant laws etc.)

EBC X X X X X

Set-up of website:

100;

maintenance: 5/y

Website is online with

comprehensive information

available

l.

Cooperate with all other Ministry stakeholders,

such as the CHRPA on human rights issues in

elections, and the ACC on corruption issues

EBC X X X X X - Regular coordination with

other stakeholders


5 ANTI-CORRUPTION COMMISSION

No. Action Who

2013

2014

2015

2016

2017

Additional

funding (kE) Indicator of success

a.

Operationalise the Commission in line with the

National Anti-Corruption Policy 2013-2017 and in

order to allow for the effective investigation of all

reported cases without a substantive backlog

(recruitment of additional staff)

Admin X

Cost for

additional staff:

(tbd)

Additional staff recruited

b.

Coordinate and monitor the National Anti-

Corruption Policy 2013-2017, and report on its

implementation to the Monitoring Body of the

MOJCA Strategic Plan (see below chapter 0)

ACC X X X X X - ACC implements Policy

according to plan

c.

Support implementation of all preventive and

suppressive measures and of the institutional

transformation as foreseen in the National Anti-

Corruption Policy 2013-2017

ACC X X X X X -

All preventive measures

are implemented

according to plan

d. Adopt the necessary legal act of providing the ACC

direct and unlimited access to all asset declarations

AttGen

(ACC) X -

Legislation is drafted and

adopted

e.

Develop legislative amendments in cooperation

with the AttGen in order to allow the Commission

to apply special investigative means for collecting

evidence (wiretapping, videotaping, etc.) and to

conduct integrity tests

ACC X

Procurement of

SIM appliances:

50

Legislation is drafted and

adopted

f. Conduct regularly targeted and random integrity

tests in the public administration including the

Judiciary (sect. 2 PrevCorruptAct) in line with

ACC X X X X X -

Tests are carried out and

statistical information is

available online


No. Action Who

2013

2014

2015

2016

2017

Additional


international standards

g.

In the framework of organisational, legislative and

constitutional review, align the functions between

the Anti-Corruption and the Integrity Commission

and appropriately reflect the role of the Anti-

Corruption Commission in the Constitution

AttGen,

ConAffairs,

IntCom

X X - Proposal is available

h.

Cooperate with the Integrity Commission on

establishing and operating an asset declaration

system according to international standards, and on

ensuring asset forfeiture (sect. 242 (2)

Constitution) in cooperation with the Integrity

Commission and with law enforcement in cases of

inexplicable wealth

ACC X X -

The asset declaration

system is operational and

declarations are submitted

i.

Cooperate with the Integrity Commission on the

further development of the Leadership Code of

Conduct, providing more guidance on the

definition of conflict of interest in line with

international standards, through a more detailed

code of conduct or sector tailored code of conducts

(clear definition of conflict of interest;

consequences such as recusal, etc.)

ACC X X -

The legislation on the

Leadership Code of

Conduct is adopted and

annual information on its

implementation is

available online

j. Review all relevant draft legislation on corruption

risks

ACC

(AttGen) X X X X X -

All relevant legal drafts by

AttGen are reviewed

k. Maintain and further develop online and print

transparency on the Commission’s work, its staff ACC X X X X X - All information on the

ACC and its work is


No. Action Who

2013

2014

2015

2016

2017

Additional


structure, past and current strategies and policies

concerning the Commission, and annually report to

the public on the Commission’s activities (case

statistics, outcomes, backlog, challenges etc.), and

on the level of implementation of the National

Anti-Corruption Policy

available online


6 JUDICIAL SERVICE COMMISSION

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Draft regulation with objective criteria for the

selection and promotion of judges and other

judicial officials implementing inter alia the

principles listed under C 4

JSC

(AttGen) X -


force

b.

Draft guidelines with objective criteria for the

appraisal of judge’s performance implementing

inter alia the principles listed under C 4

JSC

(AttGen) X -


force

c.

Draft objective criteria for imposing disciplinary

sanctions and review and update existing

regulations on disciplinary procedures

implementing inter alia the principles listed under

C 4

JSC

(AttGen) X -


force

d.

Draft and adopt a judicial code of conduct in line

with international standards, in particular the

Bangalore Principles in cooperation with the

Integrity Commission (sect. 244 (f) Constitution)

JSC

(IntCom) X -


force

e. Publish online on the Commission’s website all

above regulations

JSC

(Admin) X -

Regulations available

online

f.

Publish at least twice a year (31 March and 30

September) and at least online information and

statistical data (for minimum information see above

D.6)

JSC

(Admin) X X X X X - All data available online


No. Action Who

2013

2014

2015

2016

2017

Additional


g.

Conduct a roundtable at least annually with judges

and registrars from the courts, representatives of

the Bar, NGO’s and other relevant groups to review

inter alia

status of judicial reforms

assessment of further reform needs

JSC X X X X X -

Annual roundtable

conducted and reported on

in the media

h.

Provision of secretarial support to the Commission:

Recruit 1 lawyer

Recruit 1 secretarial assistant

Allocate 1 office room to secretariat

Procurement of 2 office equipments (desk,

computer, printer, telephone)

Training of Commission’s staff on regional

and international standards and practices in

judicial selection, appraisal and

disciplinary proceedings, reporting to

public

Admin

(JSC) X

lawyer: 200/y

assistant: 120/y

office: 10

training: 50

Additional staff recruited

and workplaces installed

i. Phase out all limited contracts for judges JSC X X X - All judges in Swaziland

are on life tenure

j. Set up a full-time judicial academy (for potential

issues see above D.6) JSC X X X

500/y (depending

on the final

structure)

Regular trainings are

conducted ensuring

participation of each judge

every 3 years; statistical

annual information is


No. Action Who

2013

2014

2015

2016

2017

Additional


available online

k.

After adoption of the judicial code of conduct, train

all judges on the code of conduct, on ethical

conflicts, and on disciplinary proceedings

JSC X X X 100/y All judges are trained on

ethics

l.

Contribute to the constitutional review of the

independence of the Commission in line with

regional and international standards (see above

D.2.3)

JSC

(ConAff) X X -

Recommendation is

available


7 DIRECTOR OF PUBLIC PROSECUTIONS

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Take part in the working group led by the Attorney

General under participation of the DPP, the High

Court, the HMCS and other stakeholders (such as

Prison Fellowship, SACRO etc.) with the aim of

providing input to the review of the Prison Act, of

reducing pre-trial detention and of encouraging

alternatives to short-term imprisonments

AttGen

(HMCS,

HCourt,

DPPros,

SACRO)

X X - Draft Bill on Correctional

Services

b.

Base the DPPros case management on information

technology and integrate it with the Judiciary and

the Correctional Services

DPP

(Admin)

Procurement of

hard- and

software: 870

Training: 60

Hard- and software is

operational and staff is

using it

c.

Establish a unit on abuse of power by law

enforcement officials, such as wrongful

imprisonment; raise public awareness on the unit;

provide the unit with its own investigator

DPPros

(Admin) X X -

Unit is running and

information on it is

available online and


d.

Ensure a dedicated local presence at each of the

Magistrates’ Courts meeting the special needs of

victims (sexual abuse, women, children etc.)

DPPros

(MagCt) X X

Cost for set-up

of offices: 150

each (750 total,

excl. Mbabane)

Each of the 6 Magistrates’

Courts has an operational

local presence and

information is available

online

e.

Publish information on complaints received about

police stations not following up or investigating

properly

DPPros X X X X X Annual report is available

online


No. Action Who

2013

2014

2015

2016

2017

Additional


f.

Set up four specialised units covering the following

areas: Tax offences, intellectual property, human

trafficking, environmental crimes

DPPros

(Admin) X X

4 lawyers

(200/y each) per

unit: 3,200/y

16 offices (50

each): 800

Units are set up and running


8 CORRECTIONAL SERVICES

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Improve, expand and develop the physical

infrastructure (incl. construction of Ka-Langa and

Hluthi Correctional Facilities)

HMCS X X X X X see HMCS-

Strategic Plan see HMCS-Strategic Plan

b. Develop effective and efficient rehabilitation and

reintegration programmes HMCS X X X X X

see HMCS-


c. Provide adequate stores and supplies for inmates

and staff HMCS X X X X X

see HMCS-


d. Build human capacity (incl. training of all officers

in stress and anger management) HMCS X X X X X

see HMCS-


e. Transforming Prison Enterprises HMCS X X X X X see HMCS-


f. Adequately provide medical care to prisoners HMCS X X X X X see HMCS-


g. Facilitate access to speedy administration of justice HMCS X X X X X see HMCS-


h.

Control and mitigate the impact of HIV/AIDS (incl.

the facilitation of access for NGOs which provide

assistance on HIV)

HMCS X X X X X see HMCS-


i. Improve effective management of all Correctional

centres HMCS X X X X X

see HMCS-



No. Action Who

2013

2014

2015

2016

2017

Additional


j.

Ensure continuous improvement in services

through quality management systems and the

promotion of information-based decision making

(incl. IT-based case management integrated with

police, Judiciary and the DPPros)

HMCS X X X X X

see HMCS-

Strategic Plan;

220 for

integrating the

case

management

see HMCS-Strategic Plan

k.

Take part in a working group led by the Attorney

General under participation of the Director of

Public Prosecutions, the High Court, the

Correctional Services and other stakeholders (such

as Prison Fellowship, SACRO etc.) with the aim of

providing input to the review of the Prison Act/ the

draft Correctional Services Bill (for key issues see

C 8)

AttGen

(HMCS,

HC,

DPPros,

NGOs)

X X - Draft Bill

l.

Ensure implementation of the Constitution, in

particular through informing prisoners on their

rights under sect. 136 Criminal Procedure and

Evidence Act (time limits of 31 days/six months to

pre-trial detention) and pro-actively enforcing this

provision

HMCS X X X X X -

Written information is put

up at each prison; annual

report

m.

Regularly coordinate rehabilitation planning and

efforts with all public and private stakeholders

involved in rehabilitation

HMCS

SACRO X X X X X -

Planning meetings

conducted at least every 3

months

n. Establish Correctional Boards at each of the 12

prison facilities with participation of members of

the respective community and NGOs as a platform

HMCS X - Boards are established and

meet at least annually


No. Action Who

2013

2014

2015

2016

2017

Additional


for cooperation with the communities

o.

Develop and implement a policy for preventing in-

prison sexual abuse based on successful

international practices (see above D.8)

HMCS X X Consultancy: 50

Policy adopted, published

online and reports on

implementation are

available annually

p.

Ensure transparency and cooperation through

publishing the HMCS Strategic Plan online;

statistical reports (containing inter alia number of

inmates, men/women, percentage of pre-trial

detention, maximum and average duration of pre-

trial detention); annual visitor’s days for interested

civil society members, NGO and media to each

prison facility; support to visits or investigations

carried out anytime by the CHRPA; access for

NGOs or international organisations which provide

assistance on rehabilitation, legal aid, sexual abuse,

set-up of possibilities for conjugal visits; etc.

HMCS X X X X X -

Documents are online and

continuous cooperation

ensured

\


9 SUPREME COURT

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Establish an objective case assignment system


C 9

Registr. X Consultancy: 80 Regulation on case

assignment is in force

b.

Establish a transparent integrated case management

system implementing inter alia the principles listed

under C 9

Registr. X X

Procurement of

hard- and

software: 9.300

(whole

judiciary)

Training: 200

(whole

judiciary)

Hard- and software

procured; staff trained

c. Provide adequate staff and office space to the

Registrar (recruitment of 1 staff) ChiefJ X

200/y

1 office: 50

Staff recruited and office

set up

d. Establish an office for inspection of the courts ChiefJ X

recruiting 2

lawyers/judges:

600/y each

2 offices: 50

each

Staff recruited and offices

set up

e.

Publish and regularly update concrete information

on all courts on the Judiciary’s website linked to

the MOJCA’s website (see for minimum

information above at C 9)

Registr. X X X X X - Information is online


No. Action Who

2013

2014

2015

2016

2017

Additional


f. Conduct the constitutional justice seminar annually

together with ConAffairs

ConAffairs

(ChiefJ) X X X X X

(see

ConAffairs)

Seminar is reported in the

media; proceedings of the

seminar are published

online and in print

g. Procurement of international and comparative

constitutional law books for Court’s library Registr. X 20

Books available at Court’s

library

h. Publish all judgements online Registr. X X X X X -

All decisions are online

within two weeks after

having been rendered

i. List all pending cases online with name and date of

registering Registr. X X X X X -

All pending cases are online

with name and date of

registering


10. HIGH COURT

No. Action Who

2013

2014

2015

2016

2017

Additional


a.



C 9

Registr. X See SC Regulation on case


b.



under C 9

Registr. X X see SuprCourt Hard- and software


c. Provide adequate staff to Registrar (recruitment of

1 staff) ChiefJ X 200/y Staff recruited

d. Procurement of international and comparative



library

e. Publish all judgements online Registr. X X X X X -




f. List all pending cases online with name and date of

registering Registr. X X X X X -

All pending cases are online

with name and date of

registering


11. MASTER OF THE HIGH COURT

No. Action Who

2013

2014

2015

2016

2017

Additional


a.

Recruit one lawyer to facilitate legal advice at the

Master’s office and to coordinate all legal action

with the focal point at the Attorney General’s

Office

Registr. X 1 lawyer: 200/y Staff recruited

b. Adopt the revised Administration of Estates Act

28/1902

AttGen

(MastHC) X - Law adopted


12. MAGISTRATES’ COURTS

No. Action Who

2013

2014

2015

2016

2017

Additional


a.



C 9



b.



under C 9




1 staff per Magistrate Court = total of 6) ChiefJ X 6 staff: 1.200/y Staff recruited

d. Participate in the annual constitutional justice

seminar (see ConAffairs at D.2.3) Magistr. X X X X X -

Magistrates’ Courts’ Judges

participate in the seminar

and contribute to the

presentations

e.

At each of the 6 courts, dedicate one or more

magistrate specifically to cases on sexual abuse and

provide appropriate equipments and settings,

including anatomical aids, video and child friendly

interpreters

ChiefJ

(PrMag) X X

Costs for

equipment and

set up of rooms:

150

Training: 200

Child friendly rooms set up

at all 6 courts

f.

Procurement of basic international and comparative

constitutional law books for the library of each of

the four courts

Registr. X 20 Books available at Courts’

libraries


13. SMALL CLAIMS COURTS

No. Action Who

2013

2014

2015

2016

2017 Additional

Funding (kE) Indicator of success

a.



C 9

SCCom X See SC Regulation on case


b. Participate in the annual constitutional justice

seminar ComSC X X X X X -

Court’s Judges participate

in the seminar and

contribute to the

presentations


14. INDUSTRIAL COURT OF APPEAL

No. Action Who

2013

2014

2015

2016

2017

Additional


a.



C 9



b.



under C 9




1 staff) ChiefJ X - Staff recruited


seminar (see ConAffairs at D.2.3) ChiefJ X X X X X -


in the seminar and

contribute to the

presentations

e. Procurement of international and comparative



library

f. Publish all judgements online Registr. X X X X X -





15. INDUSTRIAL COURT

No. Action Who

2013

2014

2015

2016

2017

Additional


a.



C 9

Registr. X Regulation on case


b.



under C 9



c. Participate in the annual constitutional justice

seminar (see ConAffairs at D.2.3) ChiefJ X X X X X -


in the seminar and

contribute to the

presentations

d. Procurement of international and comparative



library


16. JUDICIAL COMMISSION

No. Action Who

2013

2014

2015

2016

2017

Additional


a. Establish a case management system implementing

inter alia the principles listed under C 9 Registr. X X see SuprCourt

Hard- and software


b.

Provision of legal support to the Commissioner:

Recruit 1 lawyer

Allocate 1 office room to secretariat

Procurement of 1 office equipment (desk,

computer, printer, telephone, fax, 1 locker

for storing cases)

ChiefJ

(Admin) X X

Lawyer: 200/y

Office: 20

Lawyer recruited and office

set up

c. Promote appointments of women judges and

women clerks to the courts JC X X X X X -

Women are suggested for

appointment


seminar (see ConAffairs at D.2.3) JC X X X X X -


in the seminar and

contribute to the

presentations

e. Annual report on number of reviews and appeals;

summary of major concerns JC X X X X X -

Report available to the

media, the public and online

f. Procurement of basic international and comparative

constitutional law books

SC

Registr. X 5

Books available at

Commissioner’s library


17. SWAZI TRADITIONAL COURTS

No. Action Who

2013

2014

2015

2016

2017

Additional


a. Display the Bill of Rights in English and Swazi at

every Court location

JudCom

(CHRPA) X X X X X 15

Bill of Rights displayed in

all Courts

b. Display an explanation of appeals possibilities in

English and Swazi at every Court location JudCom X X X X X 15

Explanation displayed in all

Courts

c.

Recruit and train 21 paralegals for researching and

advising Traditional Courts inter alia on

constitutional law aspects of cases

ChiefJ X X

paralegals:

4.400/y

training: 100

21 paralegals recruited and

advising Traditional Courts


seminar (see ConAffairs at D.2.3) CourtPres X X X X X -

Presidents of Traditional

Courts participate in the

seminar and contribute to

the presentations

e. Upgrade the office facilities and equipments of the

Courts

ChiefJ

(Admin) X X X

Costs for

renovations: 300

per each of the

21 courts

Facilities are renovated and

adequately equipped


LAW REFORM LIST (NON-EXHAUSTIVE)

Title

(of law in need for review with regards to the Constitution) Topic

Dra

ft n

ew l

aw

Rev

iew

exis

tin

g l

aw

Com

ing i

nto

forc

e

pen

din

g

1. Constitution of the Kingdom of Swaziland 1/200431

Constitution X

2. Disciplinary Inquiry Regulations 3/1972 Judiciary X

3. High Court Rules 20/1954 Judiciary X

4. Judicial code of conduct (in line with Bangalore Principles) Judiciary X

5. Judicial Service Commissions Act 13/1982 and Regulations 1968 Judiciary X

6. Judiciary Act 38/1968 Judiciary X

7. Legal Aid Act Judiciary X

8. Legal Practitioners Act 15/1964 Judiciary X

9. Legislation for juvenile offenders Judiciary X

10. Sheriff’s Act 17/1902 Judiciary X

31 Government’s Programme of Action (2008-2013), No. 21: “it will be necessary to review our own Constitution during this Administration’s term of office”.


11. Swazi Courts Act 80/1950 Judiciary X

12. Children’s Welfare and Protection Bill 2011 Sexual abuse X

13. Sexual Offences and Domestic Violence Bill 2009 Sexual abuse X

14. Codify all criminal law (according to Supreme Court 37/2010) Criminal Law X

15. Criminalise the use of torture and ensure impartial and effective investigation in line with

the Convention Against Torture*

Criminal Law X

16. Define and criminalize torture and stipulate effective measures to prevent and punish any

violations*

Criminal Law X

17. Prohibit corporal punishment in all settings (accepted by SZ for adults)* Criminal Law X

18. Review decriminalization of same-sex activity (in year 2014)* Criminal law X

19. Administration of Estates Act 28/1902 Discrimination X

20. Adoption of Children Act 64/1952 Discrimination X

21. Age of Majority Act 11/1853 Discrimination X

22. Allow women to open bank accounts in their own names*/access to credit Discrimination X

23. Deeds Registry Act 37/1968 Discrimination X

24. Girls and protection of Women’s Act 39/1920 Discrimination X

25. Laws on Succession32

Discrimination X

* UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Swaziland – Addendum, see Annex 0. 32 See Poverty Reduction Strategy and Action Plan (2005), Objective 6.4 “Legal Protection of the Poor”, Action 149: Amending and/or Repealing Laws on Succession.


26. Maintenance Act 35/1970 Discrimination X

27. Marriage Act 47/196433

Discrimination X

28. Wills Act 12/1955 Discrimination X

29. Human Rights and Public Administration Commission Bill, 2011 Human rights X

30. Adopt legislation that protects children in accordance with the concluding observations

and recommendations by the United Nations Committee on the Rights of the child in

200634

Human rights

X

31. Align the national legislation with international standards to guarantee freedom of

assembly and association, in particular as regards the notification of the organisation of

peaceful assemblies

Human rights

X

32. Take immediate steps to repeal laws which criminalize and/or restrict freedom of

expression and of the media, in particular the Sedition and Subversive Activities Act

46/1938, the Proscribed Publications Act 17/1968

Human rights

X

33. Institute an urgent review of laws, Regulations and procedures relating to the use of force

and firearms by law enforcement officials

Human rights X

34. Repeal or urgently amend the Suppression of Terrorism Act 5/2008 and other pieces of

security legislation to bring them in line with international human rights standards

Human rights X

35. Ratify the Protocol on the Rights of Women in Africa35

Human rights X

33 See Poverty Reduction Strategy and Action Plan (2005), Objective 6.4 “Legal Protection of the Poor”, Action 140: Amend and Repeal Obsolete and Discriminatory Laws in Swaziland; UN Human Rights Council,

Report of the Working Group on the Universal Periodic Review - Swaziland - Addendum - Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review (12 March 2012). 34 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Swaziland - Addendum - Views on conclusions and/or recommendations, voluntary commitments and replies presented by the

State under review (12 March 2012).

35 ACHPR, Swaziland: Promotion Mission, 2006.


36. Freedom of Information legislation Integrity X

37. Law on asset declarations Integrity X

38. Completion of codification36

Swazi Law X

39. Protocol to the African Charter On Human And Peoples’ Rights on the Establishment of

an African Court on Human and Peoples’ Rights (ratification)37 38

Int’l treaties X

40. Ratify the International Convention for the Protection of All Persons from Enforced

Disappearance

Int’l treaties X

41. Ratify the Rome Statute of the International Criminal Int’l treaties X

42. Ratify the Optional Protocol to the Convention Against Torture Int’l treaties X

43. Enact legislation, as a matter of priority that criminalizes the use of torture and ensure

impartial and effective investigation in line with its obligations under the Convention

Against Torture

Int’l treaties

X

44. Ratify the International Convention on Protection of the Rights of All Migrant Workers

and Members of Their Families (ICRMW)

Int’l treaties X

45. Elections Order 2/1992 Elections X

46. Voters Registration Order 3/1992 Elections X

47. Code of conduct for HMCS officers Corrections X

48. Correctional Service Bill Corrections X

36 See Poverty Reduction Strategy and Action Plan (2005), Objective 6.4 “Legal Protection of the Poor”, Action 148: Completion of the Codification of Swazi Law and Custom Exercise. 37 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Swaziland - Addendum - Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review (12 March 2012). 38 See Poverty Reduction Strategy and Action Plan (2005), Objective 6.4 “Legal Protection of the Poor”, Action 146: Ratify and Domesticate All International Human Rights Instruments.


49. Prisons Act 40/1964 Corrections X

50. Prevention of Corruption Act 3/2006 Corruption X


74

IMPLEMENTATION AND MONITORING

a. Mechanism

Implementation: Institutions responsible for carrying out the actions are marked in the

Strategic Plan along with timelines and output indicators. The output

indicators (“indicators of success”) show the change which the action will

have entailed once it is implemented by the end of the indicated timeline.

Reporting: Institutions will regularly report according to a simple and unified

template provided together with the Strategic Plan (see following page).

Departments and Commissions submit their progress reports every 6

months (31 March and 30 September). The Secretariat of the Monitoring

Body reviews the draft progress reports and clarifies any information

missing within two weeks. The progress reports are the basis for the

meetings of the Monitoring Body.

Monitoring body: The following institutions are represented in the Monitoring Body:

All Departments and Commissions

The Judiciary is represented by the Registrar of the Supreme

Court, the Judicial Commissioner, one Judge designated by the

Chief Justice and stemming from a different court at each session

The Constitutional Affairs Unit

The organisation responsible for rehabilitation (such as SACRO)

Two representatives of NGOs (nominated by the NGOs

themselves and possibly on a rotating basis)

An international donor involved in the implementation of the

Strategic Plan

The Monitoring Body is chaired by the Administration.

Meetings: The Monitoring Body meets during the first year every 3 months and

during the following years at least every 6 months, about one month after

progress reports are due (April/May and October/November).

Secretariat: The Secretariat follows up on reporting obligations, consolidates and

publishes progress reports, and invites to the monitoring meetings. The

Administration provides for adequate staffing of the Secretariat (at least 4

weeks of full time support before each meeting of the Monitoring body).

Transparency: The following documents will be put online:

Strategic Plan (two weeks after adoption)

Progress reports of each Department and Commission (one week

after each meeting of the monitoring body, but no later than 6

weeks after the deadline for submission)


75

Departments or Commissions that are late with submission or

have failed to submit reports will be indicated on the Strategic

Plan’s website

Updating: Once a year, the Monitoring Body will decide on the possible updating of

the Strategic Plan, i.e. taking on new actions that appear to be relevant.

Mid-Term Review: During the first half of year 2015, the Monitoring Body will conduct a

Mid-Term-Review of the Strategic Plan. The aim of the review will be to

evaluate progress against initial objectives and, in the light of that

assessment, to make adjustments to actions for the remainder of the

Strategic Plan period. The result of the review will be made public.

Strategies: The above monitoring mechanism applies also to the more specific

strategies of Departments and Commissions, which are already in force or

which will be adopted.


b. Reporting Template

Name Date

Mr Ex Ample, Attorney General 20 June 2013

2.3 Constitutional Affairs Section

No. Action Who

2013

2014

2015

2016

2017

Progress Next steps

c.

Stock taking exercise in consultation with all public

and private (NGOs) stakeholders to research open

constitutional questions

ConAffairs X

All stakeholders have

been interviewed

except Parliament,

because of election

Interviews with

Parliament after

constituting


77

ANNEX

REFERENCED DOCUMENTS

Asset declaration:

OECD, “Asset Declarations for Public Officials, A Tool to Prevent Corruption” (2011)

www.oecd.org/dataoecd/40/6/47489446.pdf

U4/Richard Messick, “Income and assets declarations: Issues to consider in developing a

disclosure regime” (2009)

www.cmi.no/publications/publication/?3396=income-and-assets-declarations

UNODC/World Bank, “Income and Asset Declarations: Tools and Trade-offs” (2009)

http://multimedia.unodc.org/documents/corruption/Publications/StAR/StAR_Publication_-

_Income_and_Asset_Declarations.pdf

Erastus B.I.N. Rweria, The Status of Wealth Declarations by Public Officers in Kenya: are we

getting anywhere? (2005)

www.marsgroupkenya.org/Reports/Government/feb_07/THE_STATUS_OF_WEALTH_DECL

ARATIONS_BY_PUBLIC_OFFICERS_IN_KENYA.pdf

Elections:

Report of the Commonwealth Expert Team, Swaziland National Elections (2008)

http://www.thecommonwealth.org/document/181889/34293/184655/2008_swaziland_elections.

htm

Human Rights:

African Commission on Human & Peoples’ Rights, Swaziland: Promotion Mission (2006)

http://www.achpr.org/files/sessions/41st/mission-

reports/swaziland/misrep_promo_swaziland_2006_eng.pdf

UN Human Rights Council, Report of the Working Group on the Universal Periodic Review,

Swaziland (2011)

http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/19/6&Lang=E

UN Human Rights Council, Report of the Working Group on the Universal Periodic Review -

Swaziland - Addendum - Views on conclusions and/or recommendations, voluntary

commitments and replies presented by the State under review (2012)

http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/19/6/Add.1&Lang=E

http://www.oecd.org/dataoecd/40/6/47489446.pdf

http://www.cmi.no/publications/publication/?3396=income-and-assets-declarations

http://multimedia.unodc.org/documents/corruption/Publications/StAR/StAR_Publication_-_Income_and_Asset_Declarations.pdf

http://multimedia.unodc.org/documents/corruption/Publications/StAR/StAR_Publication_-_Income_and_Asset_Declarations.pdf

http://www.marsgroupkenya.org/Reports/Government/feb_07/THE_STATUS_OF_WEALTH_DECLARATIONS_BY_PUBLIC_OFFICERS_IN_KENYA.pdf

http://www.marsgroupkenya.org/Reports/Government/feb_07/THE_STATUS_OF_WEALTH_DECLARATIONS_BY_PUBLIC_OFFICERS_IN_KENYA.pdf

http://www.thecommonwealth.org/document/181889/34293/184655/2008_swaziland_elections.htm

http://www.thecommonwealth.org/document/181889/34293/184655/2008_swaziland_elections.htm

http://www.achpr.org/files/sessions/41st/mission-reports/swaziland/misrep_promo_swaziland_2006_eng.pdf

http://www.achpr.org/files/sessions/41st/mission-reports/swaziland/misrep_promo_swaziland_2006_eng.pdf

http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/19/6&Lang=E

http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/19/6/Add.1&Lang=E


78

Integrity testing:

OSCE, Best practices in combating corruption (2004), Chapter 12, page 141 (“Integrity

testing”)

www.osce.org/eea/13738

“The United Nations Handbook on Practical Anti-Corruption Measures for Prosecutors and

Investigators” (2004), pages 91-97 (“Integrity testing”)

www.unodc.org/pdf/corruption/publications_handbook_prosecutors.pdf

The World Bank, Fighting Corruption in Public Services Chronicling Georgia’s Reforms

(2012), p. 16 (“Undercover” operations)

https://openknowledge.worldbank.org/handle/10986/2234

Judiciary:

Opinion no 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention

of the Committee of Ministers of the Council of Europe on standards concerning the

independence of the judiciary and the irremovability of judges

https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE%282001%29OP1&Sector=secDGHL&Language=

lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackCo

lorLogged=c3c3c3

Opinion no 4 (2003) of the Consultative Council of European Judges (CCJE) to the attention of

the Committee of Ministers of the Council of Europe on appropriate initial and in-service

training for judges at national and European levels

http://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2003)OP4&Sector=secDGHL&Language=lanEngli

sh&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogg

ed=c3c3c3

United Nations, Basic Principles on the Independence of the Judiciary (1985)

www2.ohchr.org/english/law/indjudiciary.htm

The Bangalore Principles of Judicial Conduct as endorsed through ECOSOC Resolution

2006/23

http://www.unodc.org/pdf/corruption/corruption_judicial_res_e.pdf

http://www.judicialintegritygroup.org/index.php/jig-principles

Globalex, The Law and Legal Research in Swaziland, Buhle Dube and Alfred Magagula

(update June 2012)

http://www.nyulawglobal.org/Globalex/Swaziland1.htm

http://www.osce.org/eea/13738

http://www.unodc.org/pdf/corruption/publications_handbook_prosecutors.pdf

https://openknowledge.worldbank.org/handle/10986/2234

https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE%282001%29OP1&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3



http://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2003)OP4&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3



http://www.unodc.org/pdf/corruption/corruption_judicial_res_e.pdf

http://www.judicialintegritygroup.org/index.php/jig-principles

http://www.nyulawglobal.org/Globalex/Swaziland1.htm


79

Legal Aid:

LKM/UNDP, Final Report on National Feasibility Study for the Establishment of a Legal Aid

System for the Kingdom of Swaziland (2011)

Not published online

UNODC, “Access to Legal Aid in Criminal Justice Systems in Africa Survey Report” (2011)

www.unodc.org/pdf/criminal_justice/Survey_Report_on_Access_to_Legal_Aid_in_Africa.pdf

Penal Reform International, “Lilongwe Declaration on Accessing Legal Aid in the Criminal

Justice System in Africa” (2004)

www.penalreform.org/files/rep-2004-lilongwe-declaration-en.pdf

African Commission on Human & Peoples’ Rights, Principles and Guidelines on the Right to a

Fair Trial and Legal Assistance in Africa (2003)

http://www.achpr.org/instruments/fair-trial/

Policy documents:

National Development Strategy (1999-2022)

http://www.ecs.co.sz/nds/nds_chapter1.htm

Poverty Reduction Strategy and Action Plan (2006), Volume 1 and 2

http://www.gov.sz/images/stories/PRSAP%20vol%201.pdf

http://planipolis.iiep.unesco.org/upload/Swaziland/Swaziland_PRSAP_vol%202.pdf

Government’s Programme of Action (2008-2013)

http://www.gov.sz/images/stories/PM%20Action%20Programme%20March%202009.pdf

The Swaziland Investor Roadmap (2011-2013)

http://www.sipa.org.sz/ (Action Plan not published online)

Economic Recovery Strategy (2011-2014)

Not published online

Correctional Services:

UN “Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment” (1988), A/RES/43/173,

http://www.un.org/documents/ga/res/43/a43r173.htm

http://www.unodc.org/pdf/criminal_justice/Survey_Report_on_Access_to_Legal_Aid_in_Africa.pdf

http://www.penalreform.org/files/rep-2004-lilongwe-declaration-en.pdf

http://www.achpr.org/instruments/fair-trial/

http://www.ecs.co.sz/nds/nds_chapter1.htm

http://www.gov.sz/images/stories/PRSAP%20vol%201.pdf

http://planipolis.iiep.unesco.org/upload/Swaziland/Swaziland_PRSAP_vol%202.pdf

http://www.gov.sz/images/stories/PM%20Action%20Programme%20March%202009.pdf

http://www.sipa.org.sz/

http://www.un.org/documents/ga/res/43/a43r173.htm


80

Hendrik Jacobus Bruyns, The Impact of Prison Reform on the Inmate Population of Swaziland

(2007)

uir.unisa.ac.za/handle/10500/1723?show=full