Position of lawyers in eSwatini
eSwatini (formerly known as Swaziland) is an absolute monarchy. Freedom of association and assembly are restricted, especially with regard to government opposition protests or gatherings. Freedom of expression is also limited.
The position of lawyers in eSwatini is under pressure. This became very clear in 2014, when lawyer Thulani Maseko, together with journalist Bheki Makhubu, was convicted for ‘contempt of court’, after they wrote articles in which they raised questions about the integrity, impartiality and independence of the Swaziland judiciary.
In January 2019, Mr. Maseko, now Secretary of the Law Society of Swaziland Secretary, criticised recent appointments of judges in the kingdom saying there was no transparency in the choices and the Swazi Constitution was ignored. Mr. Maseko said the appointments ‘undermined the integrity, independence and accountability of the judiciary’. He added the appointments put the judiciary and the entire justice system into disrepute and undermined the rule of law. The independence of judges in eSwatini has been questioned for many years. In 2015, the International Commission of Jurists (ICJ) in a submission to the United Nations called for an overhaul of laws and regulations in the kingdom to take power away from the King.
Legal practice in eSwatini
The bar association in eSwatini, also known as the Law Society of Swaziland, was brought by the Legal Practitioners Act 1964. The Law Society intends to play a proactive role in matters such as guarding the rule of law, good administration of justice and the effective monitoring of the conduct of lawyers.
Parties in Swazi National Courts, including suspects in criminal proceedings, and in the Small Claims Court, are not entitled to legal representation and have no legal right to financial assistance. The government only provides legal assistance to suspects of crimes for which the death penalty can be imposed. Some NGOs provide legal assistance on an ad hoc basis.
Not allowing legal representation in criminal cases at Swazi National Courts is contrary to international standards. The lack of a legal aid system is seen as a violation of the right to a fair trial.