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Lawyers For Human Rights v Swaziland (Communication 251 of 2002)

African Commission on Human and Peoples' Rights · [2005] ACHPR 68 · 2005 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication alleging human rights violations before the African Commission on Human and Peoples' Rights
Decision
Communication upheld; State found in violation of multiple Charter provisions and directed to take remedial constitutional measures

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Kingdom of Swaziland violated Articles 1, 7, 10, 11, 13, and 26 of the African Charter. The 1973 King's Proclamation, which repealed the democratic constitution, vested all powers in the King, prohibited political parties, and undermined judicial independence, remained in force after Swaziland ratified the Charter in 1995. The State failed to bring its laws into conformity with the Charter, violating its obligation under Article 1 and restricting fundamental freedoms of association, assembly, fair trial, and political participation.

Outcome

Communication upheld; State found in violation of multiple Charter provisions and directed to take remedial constitutional measures

Facts

Swaziland gained independence in 1968 under a democratic constitution with a justiciable Bill of Rights. On 12 April 1973, King Sobhuza II issued a Proclamation assuming supreme legislative, executive, and judicial power and repealing the 1968 Constitution. The Proclamation prohibited political parties and vested the King with authority to overturn court decisions. In 2001, after the Court of Appeal struck down the Non-Bailable Offences Order, the King reinstated it by decree, demonstrating his power to nullify judicial decisions. Swaziland signed the African Charter in 1991 and ratified it in 1995 but took no steps to bring the 1973 Proclamation into conformity with Charter obligations. Lawyers for Human Rights, a Swazi NGO, filed a communication in 2002 alleging violations of Charter rights. The Respondent State failed to respond to the Commission throughout the proceedings.

Issues

  1. Whether the King's Proclamation of 1973 and subsequent decrees violated the African Charter on Human and Peoples' Rights.
  2. Whether local remedies had been exhausted or were unavailable, rendering the communication admissible.
  3. Whether the Kingdom of Swaziland violated Article 1 by failing to adopt legislative measures to give effect to Charter rights upon ratification.
  4. Whether vesting all judicial powers in the King violated the right to fair trial under Article 7 and the independence of the judiciary under Article 26.
  5. Whether the prohibition on political parties violated the rights to freedom of association (Article 10) and assembly (Article 11).
  6. Whether restrictions on political participation violated the right to participate in government under Article 13.

Orders

  • Communication declared admissible.
  • Kingdom of Swaziland found to have violated Articles 1, 7, 10, 11, 13, and 26 of the African Charter.
  • The Proclamation and the Decree must be brought into conformity with the provisions of the African Charter.
  • The State must engage with stakeholders, including civil society, in the conception and drafting of a new Constitution.
  • The Kingdom of Swaziland must inform the African Commission in writing within six months on measures taken to implement the recommendations.

Rules and key headnotes

State Obligations — Duty to Adopt Legislative Measures — Article 1 of African Charter
A State Party that ratifies the African Charter without taking appropriate measures to bring domestic laws into conformity with Charter provisions violates Article 1, which imposes an obligation to adopt legislative or other measures to give effect to Charter rights.
Admissibility — Exhaustion of Local Remedies — Unavailability and Ineffectiveness
Local remedies need not be exhausted where the likelihood of obtaining a durable remedy is so minimal as to render available remedies ineffective, particularly where the Head of State retains power to overturn court decisions.
Temporal Jurisdiction — Continuing Violations
The African Commission has competence ratione temporis to consider violations that began before a State's ratification of the Charter if those violations continued after ratification and remain ongoing.
Separation of Powers — Independence of Judiciary — Vesting Judicial Power in Executive
Vesting all judicial powers in the Head of State, including the authority to appoint and remove judges and to overturn court decisions, violates the independence of the judiciary guaranteed under Article 26 of the African Charter and undermines the doctrine of separation of powers.
Fair Trial — Ouster of Jurisdiction — Article 7 of African Charter
Decrees that oust the jurisdiction of courts on certain matters or vest judicial power in the executive violate the right to fair trial guaranteed under Article 7 of the African Charter.
Freedom of Association and Assembly — Prohibition of Political Parties
A law prohibiting the formation of political parties violates the rights to freedom of association (Article 10) and freedom of assembly (Article 11) under the African Charter, and a State that ratifies the Charter without repealing such a law violates its obligations under Article 1.
Political Participation — Right to Participate in Government — Article 13
Prohibiting the formation of political parties seriously undermines the ability of citizens to participate in the government of their country, either directly or through elected representatives, and violates Article 13 of the African Charter.

Legislation cited (13)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 10
  • African Charter on Human and Peoples' Rights Article 11
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Swaziland Independence Constitution Order Act No. 50 of 1968
  • King's Proclamation to the Nation No. 12 of 1973
  • Decree No. 2 of 2001
  • Decree No. 3 of 2001
  • Non-Bailable Offences Order of 1993

Cases cited (7)

  • Communication 147/95 and 149/96
  • Communication 60/91
  • Communication 225/98
  • Professor Dlamini v The King (Appeal Case No. 42 of 2000)
  • Sir Dawda Jawara v The Gambia (Communications 147 of 1995 and 146 of 1996)
  • Communication 211/98
  • Communication 52/91, Communication 54/91, Communication 61/91, Communication 129/94

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Lawyers For Human Rights v Swaziland (Communication 251 of 2002) [2005] ACHPR 68 (11 May 2005)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.