What is our JusticeMakers Project all about?

JusticeMakers is a project of International Bridges to Justice (IBJ). It is implemented in Swaziland by the JusticeMakers 2008 Fellow, Adv. Buhle Dube, under the auspices of the Centre for Human Rights and Development (CHR).

The project has been running since January 2009, and its funding runs up to December 2009. Because of the huge success of this project, it will likely continue to run even after the funding period expires. However, that is dependant upon further funding being secured.

What exactly did the project focus on?

The primary aim of the project was to raise awareness on the prohibition on torture, for both community police and state police. This would be achieved through the combined roll-out of awareness raising workshops and court visits in order to identify cases in which the project cold intervene. The focus was on customary courts primarily because due to the lack of the rules of evidence in these courts, there is a high likelihood of otherwise inadmissible evidence being admitted. In other words, because of lack of proper safeguards, it is possible to secure a conviction on the sole evidence extracted through torture.

Above: Interns Walker Gunning (left) and Phakama Shili (right) capturing proceedings at a community police training session in Mahamba, south of Swaziland.

This project’s key targets were stakeholders involved in the investigation of crimes, referral of cases to these courts, prosecution of these cases and suspects/convicts themselves. The media will also be targeted in an attempt to instill values of balanced reporting and to sensitise them that these human rights violations need to be viewed as such.

The approach used was to place interns at the customary courts, and who would follow cases through, identify victims of torture that we could work with, identify other cases where there were grave violations of human rights and also obtain information from the court records on all cases coming through. Based on this information, we would either seek transfer of some cases to magistrates courts and offer legal assistance, or take some of those cases on appeal or review. Further, we had initially planned to bring constitutional challenges to the enabling Act in the High Court, in as far as it conflicts with the Constitution. Our test case would have been based on sentence of caning, however, our research showed that whilst this sentence still exists in the statute books, court presidents are now loathe to use it.

Above: The first workshop was held in the beginning of 2009, in Mbhuleni (Matsapha). Use of torture was openly acknowledged by community police here as an effective method for extracting a confession. However, they showed gratitude for the knowledge CHR had shared with them, and were quick to invite the local television station, Channel Swazi to come and cover the proceedings.

 

Why did we focus on customary courts?

Swaziland operates under a dual legal system, Roman-Dutch common law on the one hand, and customary law on the other. Statutorily created customary courts apply customary law in dealing with cases involving ‘members of the Swazi nation’ for offences such as theft, domestic violence, assault and offences relating to marital squabbles under customary law. They also preside over disputes involving use of traditional land. The allocation of cases to either Magistrates courts or customary courts has over the years come to be done by the police officers rather than the office of the state prosecutor as envisaged in the Criminal Procedure and Evidence Act. The Swazi National Courts Act 1950 which creates these customary courts prohibits the legal representation of accused persons. This leaves such persons vulnerable, and susceptible to the violation of their fundamental rights. Because of the customary courts’ failure to apply the rules of natural justice, suspects appearing before them cannot even challenge violations of their fundamental rights committed by state agents or private parties during arrest. Of note here is the rising incidence of beating and torture of suspects upon arrest by community police. Community police are members of an informal structure of community policing forum, whose arresting rate is very high, especially in the densely populated informal settlements of the urban or industrialized areas. Because most of the suspects arrested by community police are involved in petty crimes such as theft, robberies and assault, their cases are usually referred to the customary courts for determination. Only when their transgressions are viewed as being serious would they be sent to the Magistrates’ Courts or the High Court. This could for example, happen in cases involving indecent assault, rape, murder or robbery. The torture of suspects, whose cases are then conveniently referred to the customary courts is not an exclusive province of the community police. State police have also been implicated in the torture of suspects in the past. So well orchestrated and concealed are their methods of torture that they only come to the fore if death results. Even in those cases, two of which a coroner’s report exists, are never prosecuted in line with the coroner’s recommendation.

The referral of cases to the customary courts effectively means the tortured suspect cannot raise this with the court, because the procedure for such complaints within the court is non-existent. It also means the customary court can admit evidence elicited through torture, since the rules of evidence do not apply there.

Above: Attendees at a community police workshop in KaPhunga area.

Corporal punishment – these courts have power to sentence an accused to imprisonment or a fine or both. They can also inflict any punishment recognized by Swazi law and custom, provided same is not repugnant to natural justice. In most cases, this punishment involves the use of corporal punishment, in which convicts are sent for whipping. There has not been an incident where this punishment was challenged for its repugnancy to natural justice.

Some of the cases do not even get to involve the state police, as matters are deliberated at chief’s level. Such cases are heard under chiefs’ courts, which have no legal instrument establishing them. Eventually, most of them are appealed through to the customary courts, and the miscarriage of justice continues.

What have we done under this project?

To date we have held more than 10 community police workshops, themed community conversations, simply because we believe a dialogue approach will elicit more cooperation than a straight pedagogical approach. So far we have been proven right, the amount of support from both community police, state police and traditional chiefs has been good. Follow the links below to read more about our various interventions in different areas throughout Swaziland:

Mbhuleni Workshop—this was our very first workshop. It was crucial for the JM team to start here because it is regarded as the seat of torture. Mbhuleni, a crime-riddled informal settlement is most notorious for its uncompromising community police, who have made headline news in the local dailies quite frequently.

New Village Workshop—New Village is set in similar conditions to Mbhuleni, with an equally high crime rate. Here also, torture was openly admitted by the community police who felt there were gains to be made in using torture on suspects.

KaMkhweli Workshop - KaMkhweli lies in the east of Swaziland, between Siphofaneni and Big Bend. This rural community faces a different breed of criminals from those in New Village and Mbhuleni. Read on...

Ngwenya Workshop - Ngwenya is a semi-urban area. The community police here did not outrightly admit to the use of torture, but after a bit of probing they opened up and mentioned that they had since stopped torturing suspects. This particular workshop was attended by members of the state police as well.

Above: Community police listening attentively during a workshop at KaMkhweli area in March 2009.

Watch this space for more detailed reports on the activities of the JusticeMakers project.