Has CJ contradicted himself on ACC’s powers?
MBABANE – )or almost six years now, the Anti Cor ruption Commission (ACC) has been grounded because Chief Justice (CJ) Bheki Maphalala found that sections of the Prevention of Corruption Act, from where the Commission derives its powers, were unconstitutional.
Specifically, the CJ said Sections 11, 12 and 13 of the Act undermine and contravene the principle of audi alteram partem (listen to the other side, or let the other side be heard as well) with regard to the entry and searching of premises, as well as the seizures of property, and the conse quent arrest of the person being in vestigated.
The CJ said the powers of the ACC in this regard were far reaching and had a devastating effect on the dignity of the person being investi gated.
“The right of the individual against arbitrary search or entry into the premises is undermined,” the CJ said.
This was in the case of former Minister of Commerce, Industry and Trade ideon lamini, together with Nigerian business associate )red 1geri and his wife Sindile, against who the ACC had prayed for the issuance of a warrant of arrest.
The trio was alleged to have col luded to defraud government a sum of E1.3 million, which was donated by the Embassy of Qatar, for an On line Shopping Project.
It was alleged that they organised themselves into a criminal enter prise with the aim to commit various crimes through a contentious Public Private Partnership (PPP) arrange ment, which involved setting up an online trading platform through the PPP organisation.
The CJ found that the ACC failed to establish a prima facie case war ranting the prosecution of the three as required by the Prevention Cor ruption Act.
He then expressed himself on the sections that he deemed to be un constitutional.
Maphalala noted that even though Sections 11, 12, 13 and 17 of the Act contravene the fundamental rights and freedoms of the individ ual as enshrined in the Constitution; however, he had not been called upon to determine their constitutionality.
ORDERS
Instead, he said he had been called upon to determine whether the ACC had established a prima facie case against the ex minister, 1geri and Sindile warranting the granting of the orders sought for the entry and searching of premises, seizure of property and consequent arrest in terms of sections 11, 12 and 13 of the Act.
The CJ found that the ACC had failed to establish the prima facie case, hence he dismissed the appli cation. However, a fortnight ago, the CJ granted an order authorising a search and seizure warrant to be issued against the homestead of 1E CHA Executive irector Kha nya Mabuza.
The CJ issued the order in terms of Section 13(a)(b) and (c) of the Pre vention of Corruption Act.
The application, which was ex parte (without notice to or contestation by, any person adversely inter ested), was made by the ACC and it was to be kept secret until it was executed.
In the order, the ACC investigat ing officer was also authorised to be accompanied by other officers from the Commission and/or any other officers that may be needed to ful fill the intended objective.
In the previous matter (ex min ister versus ACC), the CJ stated in his judgment that the drastic nature of the Act flies in the face of the Constitution, which provides the following
“18. (1) The dignity of every per son is inviolable.
(2) A person shall not be subjected to torture or to inhuman or degrading treatment or punishment.
22. (1) A person shall not be sub jected –
(a) to the search of the person or the property of that person;
(b) to the entry by others on the premises of that person;
(c) to the search of the private communications of that person, ex cept with the free consent of that
person first obtained.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required in the interests of defence public safety public order public morality public health town and country planning the development and utilisation of mineral resources or the development or utilisation of any other property in such a manner as to promote the public benefit; is reasonably required for the purpose of promoting the rights or freedoms of other persons; authorises an officer or agent of the government or of a local government authority or of a body corporate established by law for public purposes to enter on the premises of any person in order to inspect those premises or anything on those premises for the purposes of any ta rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to that overnment authority or body corporate as the case may be; authorises for the purposes of enforcing the judgment or order of a court in any civil proceedings the entry upon any premises by order of a court except so far as in respect of paragraph c or d that provision or as the case may be the thing done under the authority of that government local authority or body corporate is shown not to be reasonably justifiable in a democratic society.
According to the C- the powers of the Commission under sections and of the Act are not supported by ection of the Constitution.
To that extent he said these sections of the ct are unconstitutional.
"Section of the ct seeks to give immunity to the Commission in respect of the exercise of its powers under sections and of the Act which as , have pointed out are unconstitutional.
"Incidentally the Constitution is the Supreme law of the land and if any other law is inconsistent with the Constitution that other law shall to the extent of the inconsistency be void Maphalala said.
He said the King and ,ngwenyama and all the citizens of Eswatini have the right and duty at all times to uphold and defend the Constitution.
The C- said any person who by himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates this Constitution or any part of it or attempts to do any such act or aids and abets in any manner any such person commits the offence of treason .