King Mswati III of Eswatini. (Photo: Gallo Images / Darren Stewart) 
The unsolved assassination of top Swazi human rights lawyer and political activist Thulani Maseko two years ago this week has had a “chilling effect” on the independence of lawyers in Eswatini “and their ability to practice without fear of threat or reprisal”.
This is one of the main findings of a major report by the International Commission of Jurists (ICJ) investigating the independence of judges and lawyers in Eswatini, with a particular focus on the experiences of lawyers handling public interest and human rights cases.
Titled “No situation is permanent — repression, intimidation, harassment and killing of lawyers in Eswatini”, the report, released on 23 January, was based on interviews in late 2023 and early 2024 with about 30 individuals, 25 of whom are legal professionals working in Eswatini, mostly on sensitive or controversial cases.
The report found that many lawyers fear the same sort of “extrajudicial killing” which befell Maseko, the country’s leading human rights lawyer and political activist, who was shot dead through a window of his home near Mbabane on the night of 21 January 2023. No one has been arrested for his murder.
“Lawyers almost unanimously suspect that his persistent legal representation of individuals challenging the government and the monarchy likely at least partly motivated his killing, engendering a chilling effect on the overall independence of lawyers in Eswatini and their ability to practice without fear of threat or reprisal,” says the ICJ report.
Shot at and pursued
And so other lawyers fear also being extrajudicially killed for involvement in controversial cases. The report notes that lawyer Maxwell Nkambule was shot at and pursued on a highway on 7 December 2022 and another unnamed lawyer was shot at from a car occupied by suspected police officers in October 2021.
Lawyer Maxwell Nkambule. (Photo: International Observatory of Lawyers / Wikipedia)
“The same lawyer also reports two separate incidents in late 2022 where attempts were made to ‘swipe’ cars either driven by them or their children off the road.
“Several other lawyers believed that unmarked cars surveilling them were, in part, doing so in search of opportunities to physically harm them. Lawyers also commonly alleged the circulation of a ‘hit list’ in the lead-up to Thulani Maseko’s killing, which in their understanding, included the names of individuals, including lawyers, who were targeted for assassination.”
The lawyers said they also face adverse economic consequences for taking on cases or clients perceived as “political” ie, “representing clients in any matter pertaining to a disagreement with the king, the royal family, or the government”.
They fear losing government and corporate clients and face pressure from their own firms not to take on political clients.
The lawyers reported experiencing particular obstacles and pressures in relation to cases emanating from the large-scale unrest in the country in June 2021. This included increased threats and harassment and increased pressure not to take on those cases.
Many lawyers reported “a proliferation of spurious criminal charges against their clients relating to the June 2021 unrest” and complained that large numbers of these cases were being bundled together, leaving “no realistic possibility of defending charges in such cases”.
Lawyers believe Chief Justice Bheki Maphalala issued a “directive” for bail to be denied in certain cases relating to the June unrest.
Sexual violence
Women lawyers reported being threatened with sexual violence for defending political clients.
The report said the lawyers interviewed also complained about the shortcomings and lack of independence of their Law Society in executing its mandate to represent their interests to the authorities.
In short, most lawyers were categorical that lawyers engaged in work perceived to be contentious, including work relating to human rights, “can simply not operate independently in Eswatini”.
The ICJ said that it had already concluded in a 2014 report that although the Swazi Constitution requires the judiciary to be “independent … of any person or authority” it was not independent of the executive, particularly King Mswati III. Since then the independence of the judiciary had “substantially worsened”, said the ICJ.
King Mswati III. (Photo: Gallo Images / Darren Stewart)
The lawyers it interviewed questioned the independence of the Judicial Service Commission, which they said did not work transparently. They also complained of “the outsized influence of the king on the appointment of both members of the Judicial Service Commission and the judiciary”.
They said Chief Justice Maphalala’s allocation of cases to judges was not transparent “and resulted in judges perceived to be “independent”, “liberal” or “pro-democratic” seldom being allocated human rights and public interest cases.”
The report added that Swazi lawyers believe Maphalala “abuses his power”, citing an unresolved complaint submitted by the Law Society of Eswatini against him in December 2022 seeking his removal for improperly interfering in the administration of justice.
This included Maphalala appointing a panel of judges to adjudicate a matter to which he was a party.
The ICJ made several recommendations, mostly to the executive authorities, including the prime minister and the minister of justice.
The recommendations included pursuing inclusive and constructive dialogue towards creating a democratic society based on human rights and the rule of law.
The ICJ recommended several measures the government should take to ensure the independence of judges and lawyers, including implementing recommendations to this effect from the African Commission on Human and People’s Rights, the UN Human Rights Committee and the UN special rapporteur on the independence of judges and lawyers.
It recommended that the government cease interfering in the functions of judges and lawyers and “immediately desist” from persecuting, intimidating and harassing lawyers.
It called on the government to review all the charges of public order violations relating to the June 2021 unrest and to quash the convictions and sentences of MPs Mduduzi Bacede Mabuza and Mthandeni Dube, who had voiced support during the unrest for democratic reforms.
Independent panel
It recommended the government form an independent panel of Swazi lawyers and international legal experts to investigate the deaths and injuries of protestors in connection with the June 2021 unrest; the extrajudicial killing of Thulani Maseko; and the harassment, intimidation and targeting of lawyers and human rights defenders.
It recommended to the Swazi legislature that it undertake a comprehensive review of legislation, including the Judicial Service Commission Act, to ensure the administration of justice complied with the Constitution.
Its recommendations to the judicial authorities included establishing an independent review of all standing judicial directives to ensure their compliance with the Constitution and international law and standards.
It recommended to the Law Society that it review its effectiveness in ensuring the independence of judges. It recommended that international donors, including the European Union, should call on Eswatini to implement the reforms mooted in the report.
The executive summary of the report was launched by the ICJ and the Thulani Maseko Foundation in Johannesburg on Thursday in the presence of Thulani Maseko’s widow, Tanele Maseko, and other prominent Swazi and regional human rights champions.
The ICJ said it would release the full report in February, incorporating the response of the Swazi government, which had requested more time to comment, if this response was received.
The report was written and researched by the ICJ’s Timothy Fish Hodgson. Interviews for the research were conducted by him and Kaajal Ramjathan-Keogh, the director of the ICJ’s Africa regional programme. DM