THE APPLICATION OF THE DEATH PENALTY IN COMMONWEALTH AFRICAN STATES: SWAZILAND PRELIMINARY REPORT. DR. GEORGE VUKOR-QUARSHIE I. INTRODUCTION Swaziland is a party to a number of International and Regional Instruments imposing obligations on states to respect and observe prescribed human rights standards in the application of the death penalty. These instruments include: (i) The International Convention on the Elimination of All Forms of Racial Discrimination (acceded to in 1969), (ii) The Convention on the Rights of the Child (ratified in 1999) and (iii) The African Charter on Human and Peoples Rights (ratified without reservation in 1995). It must be stressed immediately that the mere ratification of an international instrument does not lead to the automatic incorporation of the provisions therein into national law because the constitutional law of Swaziland does not accept the monist theory. For treaty norms to become binding in Swaziland there must be the actual enactment of local legislation incorporating such norms into national law coupled with the express repeal of those pieces of local legislation which are at variance with the treaty norms. 1 It must be pointed out immediately that although Swaziland has ratified the international instruments mentioned above, she has not to date, incorporated any of them into the domestic law. It is important to point out at the very outset that Swaziland does not have a criminal code which formally spells out the acts or omissions that attract penal sanctions. The principles of our substantive criminal law are gleaned principally from the Roman-Dutch common law and a miscellany of ancient statutes enacted by the British when Swaziland was a British protectorate. On the other hand, one of the legacies that the British bequeathed the Kingdom is the Criminal Procedure and Evidence Act, No. 67/1938 (hereinafter referred to in this Report as the CPEA). Although the CPEA is antediluvian, it reflects inter-temporal British standards and notions of legality, fairness and due process in the field of criminal justice administration. Thus, at the formal (i.e. theoretical level), Swaziland can boast of a relatively sound but antiquated body of rules and principles governing criminal procedure in death penalty cases. However, in practical terms, many of the basic principles of fair trial remain largely theoretical and hollow propositions. II. THE CRIMINAL JUSTICE SYSTEM OF SWAZILAND We may now take a fleeting and cursory look at the criminal justice system of Swaziland as it relates to the application of the death penalty. In Swaziland there are two major crimes which attract the death penalty; these are murder and treason. The relevant provisions are found in section 296 (1) of the CPEA, which states as follows: Sentence of death by hanging shall be passed by the High Court upon an offender convicted before or by it of murder, and sentence of death by hanging may be passed by such court upon an offender convicted before or by it of treason. Provided that where a woman by any wilful act or omission causes the death of her child under the age of twelve months, but at the time of such act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of such child, then, notwithstanding that the circumstances were such that but for this proviso the offence would have amounted to murder, she shall be guilty of culpable homicide and may be dealt with and punished accordingly (emphasis added). Section 296 (1) additionally provides that it shall not be lawful to impose sentence of death against any person who, at the time of the capital crime was under the age of 18 years. In 1956, section 296 (1) was amended in the following terms: where a court in convicting any person of murder is of the opinion that there are extenuating circumstances it may impose any sentence other than the death sentence. National Coordinator, BIICL Death Penalty Project, Swaziland. Dr George Vukor-Quarshie is a Senior Lecturer at the University of Swaziland as well as a qualified barrister and solicitor of the Supreme Court of Ghana. 1 As articulated by Nathan CJ in R v. Mngomezulu [1977-78] 159
We may now briefly comment on section 296. This section clearly empowers the courts to impose the death penalty in cases of murder and treason. In actuality however, the current judicial attitude in Swaziland is that the penalty of death is reserved for cases of egregious killings where no mitigating circumstances whatsoever exist. This point will be more fully explored in the final Report. We shall now proceed to examine some miscellaneous issues and problems relative to the trial process in capital punishment cases in Swaziland. A. The Pre-Trial Stage In Swaziland, before the police may arrest any suspected felon, the law generally requires a warrant. However, there are also provisions in the CPEA for arrests without warrants. Thus when an offence is committed in the presence of the police, or where the police have reasonable grounds to believe that a suspect has committed any of the miscellany of offences mentioned in Part II of the First Schedule of CPEA (including treason, sedition, murder, culpable homicide, rape, robbery, etc.), they may arrest the suspect without a warrant (section 22) (see also section 23 which lists a number of additional offences for which a suspect may be arrested without a warrant). After arresting a suspect, the police are required to inform him in the language he understands of the reasons for his arrest. Section 30 of the CPEA regulates the period within which a suspect may be detained by the police after he has been subjected to arrest without a warrant. It provides that such a person may not be kept in custody for a longer period than in all the circumstances of the case is reasonable. The courts have interpreted the words in quotes to mean that the police may detain such a suspect for a maximum period of 48 hours. The police may however bring an application before a judicial officer for an extra period of detention. Such application must be supported by evidence which would satisfy the judicial officer that the application is meritorious. Part VI of the CPEA regulates the procedure for searches and seizures of property by officers of the law in carrying out criminal investigations. The general rule is that the police must obtain a search warrant from a magistrate before searching homes or premises. The police generally comply with this requirement. However, under section 47 (1) police officers from the rank of Sub-Inspector have the right to conduct searches without a warrant if they believe that evidence might be lost through the delay in obtaining a search warrant. After arrest, the suspect must be given prompt notice of the charge against him in a language he understands. It should be pointed out that there is no legal aid scheme per se in Swaziland. However, in the death penalty cases, indigent accused persons are furnished with Pro Deo counsel at the expense of the state. It is worth noting that the right to legal representation is now enshrined in section 22 (2) (c) of the draft constitution. The Pro Deo counsel, in practice, is usually assigned by the Registrar of the High Court before the pre-trial conference. The purpose of the pre-trial conference is, inter alia, to determine the number of witnesses that would appear at the trial and those who would not be needed. Once the Pro Deo counsel is appointed, the accused has unlimited and confidential access to him. One of the factors which seriously undermines and violates the rights of a person accused of a capital offence in Swaziland to a fair trial must be mentioned at this stage: by virtue of the highly controversial and greatly despised Non-Bailable Offences Order (No.14/1993), the courts are prohibited from entertaining bail applications for suspects arrested for a miscellany of scheduled offences. Murder is one of the scheduled offences. This issue will be examined in greater detail later in this Report. B. The Trial Stage The trial commences in a death penalty case when the charge is read in open court and the accused is called upon to enter a plea. The charge is crafted to reflect the essential substantive elements of the crime in question. For example, for a charge of murder, Section 131of the CPEA provides that it shall be sufficient to charge that the defendant did wrongfully, unlawfully, and maliciously kill and murder the deceased. Where an accused person pleads guilty to a murder charge, Section 238 (1) (a) mandates that the trial must proceed as if the accused had pleaded not guilty. Where an accused person pleads not guilty, the trial continues as usual. The prosecution must lead the evidence by calling witnesses. The accused may personally or through his counsel cross-examine such witnesses. Unfortunately, most lawyers who represent accused persons in the death penalty cases at the trial and appeal stages do not possess sufficient experience to undertake death penalty litigation. The experienced lawyers do not usually participate in such cases as most death penalty appellants are unfortunately very poor. Thus it is the relatively inexperienced lawyers who take up Pro Deo cases. A case which dramatizes and vindicates this indictment of the quality of legal representation in death penalty cases is the ongoing case of David Simelane. David Simelane is an alleged Swaziland version of the serial killer. He is accused of killing 45 victims (mostly women and children) in
the period between 1999 and 2001. After his arrest, he was kept on remand at the Matsapha maximum security prison. On May 5 2004, at his pre-trial conference, he asked the Registrar of the High Court to provide a pro deo counsel for him because he could not afford the services of an attorney of his choice. Following this development, the leading local daily, The Swazi Times, interviewed some of the leading legal practitioners in the Kingdom to find out if they would be willing to defend David Simelane. The lawyers maintained with near unanimity that they would only defend the accused if the government was ready and willing to hike the normal fees paid in the Pro Deo cases from the rate of E3, 500 to E50 000. It should be reiterated that the accused, under our law, enjoys a miscellany of procedural and other rights. These include the right against self-incrimination, which is provided in section 248 CPEA. Section 22 (9) of the draft Constitution also guarantees this right by providing that a person who is tried for a criminal offence shall not be compelled to give evidence at the trial. The principle that criminal statutes shall not have retroactive effect is endorsed by the criminal law of Swaziland. It is now expressly enshrined in section 22 (5) of the draft Constitution. Under section 155 (2) (c) of the CPEA, when an accused is called upon to enter a plea to a criminal charge, he may plead that he has already been convicted of the offence with which he is charged. The effect of such a plea is that the accused cannot be prosecuted a second time for an offence for which he has already been tried. Section 22 (7) of the draft constitution now enshrines this prohibition against double jeopardy. Where the accused is found guilty of murder the judge informs him that he has a right to lodge an appeal within 14 days stating the grounds for the appeal. The appeal papers are served on the DPP who in turn files heads of argument in response. The Registrar of the Court of Appeal transcribes the record of proceedings and makes copies available to the court, the appellant, as well as to the respondent. The Registrar lists the matter for hearing in the Court of Appeal. If the appellant fails to file his notice of appeal within the stipulated 14 days, he has to apply for leave to file the appeal. Obviously the length of time for the appeal process varies. However, once the Court of Appeal begins to hear the appeal, the process is usually completed within a week. After the appeal is heard, the conviction may be confirmed or overturned and the sentence itself may be commuted or confirmed. C. Post Trial Prisoners who have received the death sentence are held at the Matsapha maximum security prison under the following conditions: each prisoner is confined to a separate cell; he may be visited by friends, relatives and legal representative; he is also entitled to receive visits from clergymen. It is standard practice in death penalty cases that convicted persons appeal to the Prerogative of Mercy Committee for pardon or commutation of their sentences. Part XX of the CPEA regulates the grant of pardons and commutation of sentences in the Kingdom. Section 329 preserves the power of the King at any time to commute or remit any sentence of any court of criminal jurisdiction now or hereafter established in Swaziland, or to grant a pardon either free or subject to lawful conditions of any offender convicted by any such court. Thus the King may, in the exercise of the prerogative of mercy, commute any sentence, effect a free pardon or release on probation, any convicted prisoner. The language employed by section 330 implies that the exercise of the prerogative of mercy is at the discretion of the King and not a justiciable right. Section 79(1) of the draft Constitution is to he same effect. A prisoner who has been condemned to death stays on death row until the execution warrant has been signed. The prisoner is then removed from the Matsapha prison and sent to the Mbabane correctional institute where executions are carried out. He is again confined to a separate cell. He is allowed to have meals of his choice, and he may be visited by relatives, friends, lawyer and clergymen. There is currently a de facto moratorium on executions in the Kingdom. The last executions took place in 1983. Conflicting reasons have been advanced for this. While it is claimed by some that executions have not taken place because the Government has not been able to procure another executioner since the last one died, the official reason given is that the Government has suspended executions while it searches for a more humane way of carrying out the death sentence. D. Prison Conditions Generally, prison conditions in Swaziland are fair and humane. There have however been reports of prisoners dying in prison. For example, The Times of Swaziland reported that 13 prisoners have already died in the first two
months of 2004 alone 2. The report does not indicate the category of prisoners who died. Neither does it suggest that the prisoners died in suspicious circumstances. There have been allegations of torture and ill treatment of prisoners but these are few. The Government routinely permits diplomats, journalists, human rights groups as well as representatives of international organizations to visit prisons. It should also be pointed out that the Prisons Act (No. 40/1964) and the Prisons Regulations 1965 make provisions for prisoners complaints and grievances to be made to any of the following persons or groups: (i) the officer in charge of the prison; (ii) any member of the Visiting Committee which, in terms of section 63 of The Prisons Act, may be appointed by the Deputy Prime Minister to each prison for the purpose of reporting to him on the management of the prison, and the treatment of prisoners there; and (iii) the Commissioner of Prisoners. III. HUMAN RIGHTS ISSUES There have been numerous, alarming reports in the local newspapers about the torture of suspected criminals by the police during interrogations in an endeavour to obtain confessional statements. There are also numerous reports in the newspapers about the killing of suspected criminals for allegedly resisting arrest or attempting to flee from police custody after arrest. In all these cases, the police have stoutly defended their actions by claiming justifiable and reasonable use of force in effecting arrest or preventing the escape of arrested suspects. This issue will be more comprehensively discussed in the final Report The local newspapers have also carried stories detailing overcrowding and poor conditions in the country s prisons. As far as cases involving the death penalty are concerned, the reasons for acute congestion in the prisons are not hard to find: the use of the provisions of the Non-Bailable Offences Order of 1993. Under this law, no recourse to a court to determine bail is permitted in cases where an accused is detained on a charge of murder and some other scheduled offences. Other reasons for the prison congestion include the excessive length of pre-trial detention, the huge backlog of cases, as well as the resignation en masse of the Court of Appeal judges in November 2002. These resignations were triggered by the refusal of the Government to abide by judgments of the Court of Appeal, inter alia, invalidating the Non-Bailable Order and declaring that there were constitutional limitations on the King s power to legislate. Thus up to the time of writing this Report, there is no Court of Appeal in Swaziland. The practical effect of this is that, all appeals which go before that court as of right (e.g. all cases in which the death penalty or life imprisonment have been imposed), or by leave, have been placed in limbo. We also wish to point out that there seems to be in Swaziland, an overwhelming belief in the justification and effectiveness of harsh and severe penalties for persons accused of ritual murder. Indeed, it is generally believed that the courts are too lenient with people who commit ritual murder. This is why many people take the law into their own hands. This phenomenon is referred to in Swaziland by the eponym Mbayayism, named after Mbayiyane Mnisi 3. In this case, the three accused persons were charged with the ritual murder of a 4-year-old girl. They were acquitted even though an accomplice had given evidence in court on how they had planned and executed the murder. Believing that the accused persons had used muti 4 (one of the accused was a witchdoctor) to achieve their acquittal, members of the community to which the accused persons belonged declared war on them as well as the chief of the area for harbouring killers in his chiefdom. They burnt down the homesteads of the accused persons as well as that of the chief. Later they caught up with Mbayiyane Mnisi and stoned him to death. It must be quickly stressed that the frequent resort to mob justice does not necessarily mean that the majority of Swazi's support the imposition of capital punishment. What it does seem to suggest is that where the members of a particular community believe that a person has committed ritual murder or has practised witchcraft, such a person should be put away for a long spell and should not be allowed to come back to the community. Another factor which promotes the non-application of internationally accepted safeguards in the death penalty cases in the Kingdom is the fact that although Swaziland is party to some international and regional instruments which impose obligations on state parties to observe prescribed human rights norms in the administration of criminal justice, these instruments have not been incorporated into the domestic law. They therefore remain brutem fulmen. IV. PRELIMINARY CONCLUSIONS 2 March 8, 2004, p9 3 R. v. Betty Mangenendlini and Mbayiyane Mnisi, Criminal Case 82/91 High Court(unreported) 4 witchcraft
We may now advance some preliminary suggestions for reform and improvement of the criminal justice system in the death penalty cases in Swaziland: (a) It is of paramount importance that the independence of the judiciary is not only guaranteed in theory but observed in practice. Judges must be free from interference from the executive as well as the traditional elite, which is constituted principally by the chiefs, the princes, the princesses and the members of the Swazi National Council. The executive branch of the Government must not defy court rulings that they find unfavourable and unpalatable. (b) The Non-Bailable Offences Order must be scrapped because it violently undermines the principle of the presumption of innocence which is now enshrined in the draft Constitution of Swaziland. (c) The torture of suspects by the police must cease. This is only possible if an impartial and independent body is established to investigate and sanction policemen who engage in the practice of torturing suspects. Additionally, the police should be exposed to proper and periodic training in human rights norms. At present, this is not part of the police training programme. It must however be pointed out that the International Committee of the Red Cross has initiated a programme for the training of senior police officers in human rights and international humanitarian law in the Kingdom. (d) Most legal practitioners who defend accused persons in death penalty cases, as well as the judges who preside over such cases, are not au fait with the current international strategies and case law. This means that many persons accused of capital crimes do not receive effective legal representation. Obviously, an intensive educational programme and training in death penalty litigation is needed to correct this..