Eswatini’s anti-corruption commission (ACC) has been in a state of virtual paralysis since 2016, following a decision by the chief justice, Bheki Maphalala. The commission interpreted the CJ’s comments that the wide-ranging powers given to the commission in terms of the anti-corruption law, were unconstitutional, to mean just that: he had found that the law was not constitutional. Given those remarks, the ACC believed it was able to do very little, and corruption in Eswatini has soared, unchecked, since then. Now, eight years later, three judges of the high court have held that the judgment did not in fact declare the Prevention of Corruption Act unconstitutional and that the commission had simply misunderstood what the decision had held. So, what caused the mix up?  And what lies behind the court’s not-so-veiled reprimand of the ACC for going into ‘hibernation’ in the wake of the decision, rather than acting promptly to get clarity on what the CJ had actually meant?

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The disputed judgment by Eswatini’s chief justice, Bheki Maphalala, was delivered in 2016. At several points in that decision he said that aspects of the law giving powers to the Anti-Corruption Commission (ACC) were unconstitutional. That in turn was seen as a hammer blow by the ACC which has limped along since then, believing itself effectively powerless. Now though, a full bench of the high court says the ACC was wrong in how it interpreted the CJ’s remarks.

At the time, obviously concerned with the impact of the CJ’s remarks in that 2016 decision, the ACC applied for and was given leave to appeal to the apex court on a point of law, namely whether the CJ had erred in declaring the relevant sections inconsistent with the constitution.

But when that issue was finally heard by the supreme court in 2019, it found that the ACC didn’t have the right to bring a constitutional challenge before it without a prior judgment of the high court, sitting as a constitutional court. The supreme court therefore referred the matter to a full bench of the high court for hearing. Depending on the outcome, the ACC would then have been able to ask the supreme court to decide on any constitutional question that might have arisen from the high court judgment.

Why the delay?

But that was all back in 2019. So why had it taken so long for the ACC to act? Why didn’t it immediately bring the matter to the high court so that the corruption organisation could get back to its work, or alternatively, ask that the legislation governing its operations be re-considered and even amended, by the lawmakers?

You may well wonder. The three judges of the high court, who sat as a full bench to consider the appeal in April, were just as bemused. Their recently delivered decision shows them clearly none the wiser about the delay.

Pointing out that the matter came to the court for a hearing date more than seven years after the disputed judgment, the judges asked why it had all taken so long. But they then added that while the court was not faced with this particular issue, the question was ‘a very pertinent one, following that it had since become common knowledge that the entire commission went into hibernation after the judgment [by the CJ]. Results were the corresponding repercussions in the rate of corruption …. Good, law-abiding citizens reacted by venting their frustrations at the People’s Parliament which assembled … in October 2023.’

No ordinary suspects

In their decision, the three high court judges also gave some more information about the CJ’s original judgment. It had been made in response to an application brought by the ACC, asking for the go-ahead to arrest three suspects, to search their premises and to seize items they might find in the search.

But these weren’t just ordinary suspects.

One was a ‘minister of the crown’ at the time. The second was married to the third, who in turn was ‘a daughter of a high-ranking prince’. The three faced two counts of corruption and four of fraud. And the operation, described by the ACC in the application to the CJ, included them allegedly using their high office and royal connections in a scheme that involved a significant ‘actual and/or potential loss’.

Cases involving members of Eswatini’s royal family or close advisers of Eswatini’s king, Mswati III, are something of a poisoned chalice for the courts. Deference to the royal house is required of all subjects, and a high court judge was previously removed from office because a judgment was perceived as including an implied criticism of the king. For this reason, the application was always going to be a tightrope act for the judge who had to deal with it.

‘Comments in passing’

So what did the CJ say – and do – in his 2016 decision? He refused the application, thus not allowing the search and seizure operation to go ahead. He turned it down on the basis that the information before him didn’t establish sufficiently strongly that the suspects had actually done anything wrong.

Quite apart from that finding, however, he spent a considerable part of the judgment explaining that key elements of the legislation in terms of which the application had been brought, were unconstitutional. It was these comments that effectively put a stop to the work of the ACC, but the high court has now found they were merely comments in passing, rather than being the essence of his judgment.

His ‘comments in passing’ included remarks such as these: ‘The powers of the commission under [the listed sections] are not supported by section 22(2) of the constitution. To that extent these sections of the Act are unconstitutional.’ And, ‘the drastic nature of the Act flies in the face of the constitution’.

In a further passage he wrote about other sections of the law that would give immunity to the ACC in the exercise of its powers, and added that these were sections ‘which as I have pointed out, are unconstitutional’.

Suggestion of ‘treason’

The CJ then warned that acting unconstitutionally had consequences, that any law inconsistent with the constitution was ‘void’ and that anyone who tried to suspend, overthrow or abrogate any part of the constitution commits the ‘offence of treason’.

However, while this section of the judgment seems to show that the CJ had in fact found the disputed section of the law unconstitutional, he then added that, in order to ‘ameliorate the drastic nature’ of the law, the legislature had set up certain provisions as a safeguard.

Among these was the requirement that an investigator had to make a written application to arrest, search and seize, and that any such application ‘should establish a prima facie case warranting prosecution.’

The CJ then found that the application didn’t go far enough to establish a prima facie case, and that the application had thus to be dismissed.

Apparent unconstitutionality ‘saved’

In its examination of the CJ’s judgment, the high court said that remarks in passing were just that, and shouldn’t be confused with the real basis of a decision. Here, the reason for turning down the application was that the ACC hadn’t made a satisfactory case for a search and seizure warrant to be authorised; it wasn’t based on a finding that the relevant provisions were unconstitutional.

The three judges also wrote that the CJ might well have been ‘merely pointing out that the sections standing on their own … were unconstitutional but for the provisions in the act compelling the applicant to make an application before court and demonstrate a prima facie case’.

In this interpretation, the CJ would have meant that through these provisions, the apparent unconstitutionality of the law had been saved.

What should the anti-corruption bosses have done?

The high court judges said that what the ACC should have done, faced with a judgment such as this, was the following: ‘The applicant ought to have approached the learned Chief Justice and sought clarity on its judgment instead of taking a recess for a period spanning over seven years at the expense of the tax payers’ money and the economic stability of this country’.

With its decision dismissing the ACC’s case, the high court has now resolved the true legal basis of the CJ’s decision made nearly eight years ago. But will this finally allow the commission to get back to work and use its powers to arrest, search and seize?

Hard to say – the CJ’s comments about the unconstitutional nature of the corruption laws will obviously be common knowledge, and the next time that someone is arrested by the ACC, or the commission searches someone’s premises, I wouldn’t be surprised to read of an application testing the validity of the action, based on the apparent unconstitutionality of the enabling provisions.