AG LAYS BARE HIS CARDS
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’.