AG LAYS BARE HIS CARDS

Observer on Saturday - - News - By Sicelo Maziya

he At­tor­ney Gen­eral Um­n­gani Si­fiso Khu­malo is not a mem­ber of the Ju­di­ciary and that is not only unique to Eswatini but com­mon with mem­bers of the Com­mon­wealth coun­tries.

Se­nior Coun­sel Mn­deni Vi­lakati of the At­tor­ney Gen­eral on Of­fice made the clarity dur­ing the com­mem­o­ra­tion of World Press Free­dom Day at the Swazi­land Theatre Club Thurs­day evening. “It is ap­pro­pri­ate that I be­gin my con­tri­bu­tion to the dis­cus­sion with a cor­rec­tion. The pro­gramme sug­gests that the at­tor­ney Gen­eral is part of the Ju­di­ciary of this coun­try. This is er­ro­neous. The at­tor­ney gen­eral is not a mem­ber of the Ju­di­ciary. He is part of the Ex­ec­u­tive or­gan of state. It is for this rea­son that our con­sti­tu­tion pro­vides for the at­tor­ney gen­eral in Chap­ter VI which reg­u­lates the Ex­ec­u­tive,” he said.

Vi­lakati on the theme of the night dubbed ‘Keep­ing the Power in check; Me­dia, Jus­tice and the Rule of Law’ re­marked that power man­i­fested it­self in mul­ti­ple ways and ex­er­cised by state ac­tors and non-state ac­tors alike. Vi­lakati said state ac­tors maybe Cab­i­net min­is­ters, civil ser­vants, Mem­bers of Par­lia­ment and judges. He said he pre­ferred to con­fine him­self to an ex­er­cise of power that he is rea­son­ably fa­mil­iar with, namely Ju­di­ciary power. Vi­lakati fur­ther said no con­sti­tu­tional in­stru­ment that he was un­aware of de­fined the value of the rule of law. He said this was be­cause it was such a wide doc­trine. He fur­ther cited Jus­tice Ed­win Cameron of the Con­sti­tu­tional Court of South Africa in his book ‘Jus­tice; A Per­sonal Ac­count’ where he de­scribes the rule of law as “the no­tion that all power, es­pe­cially state power, must be ex­er­cised un­der law and ac­cord­ing to the dic­tates of law.” Vi­lakati said power was sub­ject to law, adding that judges in a con­sti­tu­tional court state with a supreme con­sti­tu­tion wield enor­mous power. The Ju­di­ciary is the ul­ti­mate ar­biters of what the law and the con­sti­tu­tion mean. He fur­ther said me­dia was one of the pil­lars of a con­sti­tu­tional democ­racy. Vi­lakati said the role of the me­dia was checking Ju­di­ciary power was in a way viewed best ar­tic­u­lated by an English Judge Lord Di­plock in At­tor­ney Gen­eral v Lev­eller Magazine (1979) AC 440 when he said “if the way that courts be­have can­not be hid­den from the public ear and eye, this pro­vides a safe­guard against Ju­di­ciary ar­bi­trari­ness or idio­syn­crasy and main­tains the public con­fi­dence in the ad­min­is­tra­tion of jus­tice”. Vi­lakati said the ju­di­cial sys­tem had its own safe­guards against abuse of power. He men­tioned the duty to give writ­ten rea­sons and ap­peal­ing to a higher court. Vi­lakati fur­ther quoted Jus­tice Cameron by say­ing he re­minds ev­ery­one the ul­ti­mate court was the court of rea­son. De­ci­sions of all courts must be vig­or­ously stud­ied and anal­ysed. Vi­lakati fur­ther opined that to many peo­ple the me­dia is of­ten the source of in­for­ma­tion mem­bers of the public rely on for study and analysing pro­nounce­ments of the courts. He said free­dom of ex­pres­sion, in­clud­ing me­dia free­dom, was not ab­so­lute or un­fet­tered. It must be ex­er­cised sub­ject to the rights and free­doms of oth­ers.

He said in some ju­ris­dic­tions, the me­dia cov­ered crim­i­nal in­ves­ti­ga­tions and crim­i­nal tri­als by cre­at­ing a per­cep­tion of guilt re­gard­less of any ver­dict in a com­pe­tent court of law and in the process trench­ing upon the right to a fair trial. “Our me­dia should guard against the in­sid­i­ous phe­nom­e­non of ‘trial by the me­dia’.

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