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The Judiciary as a Corporate Entity
Issues of Information and the Civil Society



Introduction

The Judiciary is a unified state court system under the administrative head; the Chief Justice of the country. As an organ of state the Judiciary still has to conform to government policy and the laws regulating the dissemination of information. Of importance, though, is that following the reform of the Judiciary after the promulgation of the constitution, the Judiciary now operates in terms of its drawn Strategic Plan 2007 - 12. One of the Key Strategic Focus Areas is to ensure that the judicial system remains technologically compliant - to facilitate, inter alia, online access of relevant information.
As an organisation, the Judiciary, operates, and has to survive, within two environments;
(1)    The micro-environment, comprising of civil society as its consumers, the other stakeholders (which include the civil society) as its suppliers, and the other possible dispute handlers that can pose as competitors. The Micro-environment refers to the organisation itself. It is the environment in which the manager operates.

(2)    There is the Macro-environment as well. It includes the economic (National and Global) circumstances, Social, Political, Technological circumstances. The Macro-Environment has an influence on the micro-environment both directly and indirectly through the market-environment.
These are some of the several management thoughts which will had major contributions in our movement, in 2006, from an emphasis on Strategic Planning to Strategic Management and finally to Strategic Intent; all these aspects received great attention from the leadership of the Judicial Sector, and that includes making the Judiciary visible by managing and disseminating accurate information to the public. It is without doubt that operationalising the above aspects will, in reality, be to their great advantage. However, the success of this vision can, and will, need dynamic and collaborative leadership, between the Judiciary and the Executive arms regarding the necessary financial assistance and also to ensure Good Corporate Governance.

The Organisation and its Stakeholders

It is imperative, for the Judiciary as an organisation, to recognise the importance of stakeholders and their rights. Communication with stakeholders is considered to be an important feature of corporate governance as indicating cooperation between stakeholders and corporations. The Judiciary, if for a moment it can be given the status of a corporation has a duty to present a balanced assessment of its position when reporting to stakeholders. Both positive and negative aspects of the activities of the company should be presented to give an open and transparent account thereof.

Stakeholder Ministers
Most importantly it acknowledged that a minister other than the public entity's portfolio Minister ( the Minister of Justice and Constitutional Affairs), for example, the Minister for Finance have an interest in the work of the Judiciary as a public entity. Such a stakeholder Minister's interest may arise in a number of ways. The functions of the Judiciary may affect the stakeholder Minister's portfolio responsibilities or stakeholders, such as being engaged in a project that is co-funded by the stakeholder Minister’s portfolio

Apart from the above, stakeholder communication should consist of a discussion and interpretation of the business including: its main features; uncertainties in its environment; its financial structure and the factors relevant to an assessment of future prospects; and other significant items which may be relevant to a full appreciation of the business.

The discussion should go beyond a mere analysis of the results for the year. It should cover trends and changes, profit forecasts and future projections as well as information and events beyond the balance sheet date that are relevant to a full appreciation of the corporation's affairs.

The focus has been on improved transparency and disclosure so that stakeholder communication per se;

  • Is clear and concise such that that can be readily understood by the average stakeholder;
  • Is objective, unbiased and balanced and covers positive as well as negative aspects;
  • Deals with comments made in previous communications and whether or not these have been borne out by events;
  • Follows a top-down structure by discussing individual aspects of the business in the context of the corporation as a whole;
  • Is a narrative rather than a numeric analysis although figures should be used where appropriate;
  • Interprets ratios or numeric information in relation to the financial
  • Statements in terms of government laid down procedures;
  • Looks toward the future as well as reviews the past;
  • Is prompt, relevant, open and transparent. Substance should take
  • Precedence over legal form.

Independence of the Judiciary
The safety of the state is entirely dependent on an Independent Judiciary because it has the capacity and an obligation to promote and preserve the Rule of Law. The Rule of Law is a basic tenet of any democratic country, requiring an independent Judiciary that functions reasonably and efficiently.

The Judicial Sector has the primary mandate to administer justice. It also has to interpret and to uphold the Constitution. Courts are often called the custodians of the Constitution because their rulings protect the rights and civil liberties of the citizens as guaranteed by the constitution. The Judiciary has Judicial Review Power. In terms of the constitutional doctrine of Separation of Powers it has power to review the decisions and actions of the Legislature and the Executive, Motala & Ramaphosa, (2002). Judicial Independence connotes, not just the independence of the judicial arm from interference by the other arms of the state, but includes independence of each judicial officer from any interference by other members of the bench.

The Judiciary and its Customers
In the Service Sector, the provision and delivery of service involves a variety of interactions between an organisation and its customers. The concept can properly be advanced further by introducing the element of quality in service delivery. One definition of Quality Service Delivery as a concept is:-

“A measure of how well the service level delivered matches customer expectations. Delivering quality service means conforming to customer expectations on a consistent basis.”

The Judiciary of Swaziland must, also, be viewed as an organization - a system designed to serve the needs of those who use the courts and involving processes and tasks that are interlinked and affect one another.

LEADERSHIP AND MANAGEMENT IN THE COURTS

Court systems require effective leadership and management practices to respond to many important issues, such as public trust and confidence, court and community collaboration, and timeliness and consistency. Strategic planning and team building must also become part of the inherent culture of our courts to bring about pertinent, effective change in the justice
system.

The drawing of the Strategic Plan for the Judiciary of Swaziland 2007-2012 is but one commendable activity. But the Judiciary, as an organisation, needs to go a step further; that of ensuring that most of its members are aware of the vision and they are part of the strategic journey forward. Although it is good to have written strategy for an organisation, it is, however, vital that the members of the organisation or, in particular, its stakeholders become part of the strategy. Most public entities have a wide range of stakeholders with an interest in their operations. Common stakeholder groups include:

• Staff of the public entity;
• The public entity's customers and clients, and the broader community;
• The portfolio Department;
• Other State Government Departments and agencies who are co-operating
with the public entity or who rely on the public entity for goods or services;
• The public entity's business partners including companies, government
organisations and Non-government Organisations (NGOs).

The written strategy, which is referred to as the Formal Strategy, is a document which sets out everyone’s responsibilities to which managers and staff sign up as a roadmap to achieving the organisational goals. And Stakeholder expectations are one of the attributes that are likely to influence that form of a strategic alliance.

Monitoring and Evaluation

Time has come whereby the Judiciary is to embark on the process of assessing the suitability of its strategy; that is, to establish whether the strategy addresses the circumstances in which the organisation is operating, and acceptability assessment which concerns the achievement or otherwise of the expected performance outcomes, such as risk, return, and stakeholder reactions, following the implementation of a greater part of the strategy.
The most critical elements of modern judicial reform come with the realisation and acceptance that the court is a service agency. The service it provides is to resolve disputes in society [by providing a forum, and by taking responsibility for matters entrusted to it with an understanding of the users as customers and an appreciation of good customer service]. Courts should not just exercise mere adjudicative responsibility but there should be a paradigm shift to a system which focuses on total quality service, and not just function in blind isolation but must be part of the community. Visibility, through public (civic) education, is certainly a strategic consideration for achieving the latter.

Response to Change

The Judiciary has consideration of, and anticipates new conditions and emergent events and adjusts its operations as necessary.

Justice should not only be done, but should be seen to be done!”

Compliance with law depends heavily on public respect for the Judiciary. Ideally, public trust and confidence in the courts should stem from the direct experience of citizens with the courts. However, it is also influenced greatly by the media and the perceptions created. The maxim "Justice should not only be done, but should be seen to be done!” is critical to public trust and confidence. Unfortunately, there is no guarantee that public perceptions reflect actual court performance. Such guarantee can be envisaged in a situation where there is strategic interaction between the judiciary and the citizens of the country.

Protecting the “Rule of Law
On the issue of public confidence and how it can be attained and sustained reliance may be on the Appellate court systems which, in exercising mandatory or discretionary jurisdiction, should provide reasonable opportunity for a multi-judge review of decisions made by lower tribunals. Appellate court systems should develop, clarify and unify the law. The public’s trust and confidence is a precious commodity for the courts. When Alexander Hamilton noted that the Judiciary has “no influence over the sword or the purse” (Federalist Papers, 78) the emphasis was on the need for the Judicial Sector to focus on earning public confidence. Consequently, the judicial branch relies particularly heavily on public support to perform its role in our system of government.

Public Trust and confidence must be earned and can be easily lost. It, however, goes hand in hand, with public education. Unless the public is well educated and knowledgeable about the court system, they are likely to see shadows where there are none. Most members of the public do not have direct contact with the courts. Information about the courts is filtered through sources such as the media, lawyers, litigants, political officeholders, and employees of other components of the justice system.

The public is extremely lacking in knowledge about the Judiciary, and what is known is often at odds with reality. The Judiciary must inform and educate the public. Effective informational brochures and annual reports help the public understand and appreciate the administration of justice. Ignorance of the judicial system and of the Judiciary and the constitutional framework that governs it and its relations with the other arms of the state create flaws in our democracy.

The Judiciary, if it could establish a court protocol and information unit within its ranks of Court Administration, would create a situation in which, through the media, the average citizen has a basic but clear and accurate understanding of the nature, purpose and operations of the Judiciary, particularly where it touches him/her as an individual. The Judiciary envisages a situation where both its internal and external customers can readily access accurate information in written, audio and video media (as well as from Judiciary personnel), so as to reach as wide a cross-section of the public as possible.

Proposals
This will ideally be accomplished by:

  • A cadre of well-qualified, trained and motivated Communication and Information Officers in the Court Protocol and Information Unit of the Department of Court Administration.

There is a presumption of openness in the Judiciary, which is long-standing, both in policy and practice, as well as established standards and protocols for public access to court records.  A much anticipated, methodical and focused, promulgation of policies and rules, in line with the constitution and the Judiciary’s strategic plan will affirms that the endeavour to ensure that Judiciary’s records are publicly accessible

  • Regularly scheduled media conferences at which Judiciary personnel will interface with the media and provide information on topical matters.
  • The use of the print media for supplements and pull-out type magazines on the Judiciary at regular intervals.
  • The use of the audio-visual media for well produced informational features on the Judiciary.

These should concentrate on matters, which are of importance to the public and should shed bright light on the non-confidential areas of Judiciary activities, which remain the most obscure to the public.

  • The use of audio media (radio) for interviews with Judiciary personnel to talk about the courts and their work. Radio talk shows are extremely popular in the country, and should be positively exploited by the Judiciary.

COMMISSION ON HUMAN RIGHTS AND PUBLIC ADMINISTRATION INTERGRITY

VISION

To be a relevant and effective commission in a just society in which the principles of human rights and good governance are observed, practiced and preserved.

MISSION STATEMENT

We exist to promote and protect human rights for all and ensure equitable access to public services and the existence of a leadership that is transparent in its activities and accountable to the people it represents and serves – working through partnerships.

Establishment/ Background  of the Commission

The commission was appointed by HIS MAJESTY KING MSWATI 111, on the advice of the JUDICIARY SERVICE COMMISSION, through Legal Notice no. 143/2009.
When it was appointed the commission consisted of six (6) members;  The Commissioner / Chair person and five (5) deputy commissioners.

Functions of the Commission

The Commission has a three-fold function being ;

1.    Human Rights
2.    public administration
3.    Integrity

Human Rights


The Commission is empowered under section 164(1) to investigate complains concerning alleged violations of fundamentals rights and freedoms under the constitution. The commissioner is to take appropriate action for remanding , correction or reversal of instances complained off trough such mean as affair proper and effective including – inter alia;

•    Publicizing the findings and recommendations of the Commission.

•    Negotiates and compromise between the parties concerned.

•    Causing the complaint and the findings of the Commission on that complaint to be reported to the superior of the offending person or institution.

•    Referring matters to the Director of Public Prosecution or the Attorney General’s office for appropriate action to secure the termination of the offending action or conduct or the abandonment or alteration of the offending procedure.

•    Bringing proceedings to re-strain the enforcement of any legislation or regulation by challenging the validity of that legislation or regulation where the offending action or conduct is sort to be justified by reference to that legislation or regulation.

Public Administration

The Commission is empowered to investigate complains of injustice, corruption, abuse of power in office and unfair treatment of any person by a public officer in the exercise of official duties. It is also empowered to investigate complains concerning the functioning of any public service , service commission, administrative of organ of government, the armed forces, in so far as the complains relate to the failure to achieve an acceptable delivery of service or the recruitment to those services or fair administration by those services.

Integrity

Chapter 14 of the Constitution establishes a leadership code of conduct that seeks to ensure that those in leadership whether elective or appointed are transparent in their activities and accountable to the people they represent or serve, are committed to the rule of law and administrative justice, adhere the principle of service for common goal, do not abuse office and do not engaged in a conduct that is likely to lead corruption in public affairs.
Section 241(1) seeks to enforce the purposes of the code by requiring persons who hold public office mentioned in sub section 2 to submit to the integrity commission, a written declaration of all property, assets or any benefit gained  or liability owed by the holder of that office directly or indirectly.


The Commission on Human rights and Public Administration/Integrity is for purposes of enforcing the leadership code conduct constitute the integrity commission.


The commission may investigate any matter where a complain is duly made to it by any person alleging that the complainant has sustained an injustice as a result of a fault, or where a member of parliament request the commission to investigate the matter on the grounds that a person or body of persons specified in the request has or may have sustained an injustice or any other circumstances in which the commissioner in good faith considered that the commission ought to investigate the matter on the ground that some person or body of persons has or may have sustained an injustice

Procedure of Bringing complains

Complains can be file in writing through the office of the commissioner.
The Commission would the determine if there has been a violation of fundamental rights and freedom under the Constitution.
Take appropriate action for the remanding, correction or reversal of instances of the alleged violations.

Seat of the Commission

The Commission currently seats at the Ministry of Justice Offices situated at Nkhanini next to the elections and Boundary Commission Offices (EBC)

Contacts


P O Box D166
The Gables
H126
Swaziland

Tel : 00268 416 1531
Fax : 00268 416 1531

News Section

The Commission produces an annual report to parliament on the performance of the commission which includes statistics in such form and such details as may be prescribed of the complains received by the Commission and results of any investigations.


Management of Elections
The elections management body in Swaziland is called the “Elections and Boundaries Commission”.  In terms of section 90 of the Constitution the King, on the advice of the Judicial Service Commission, appoints a 5 member Commission (a chairperson, deputy chairperson and three other members). The appointed persons are individuals who possess the qualifications of a Judge of the superior courts or persons of high moral character, proven integrity, relevant experience and demonstrable competence in the conduct of public affairs.

 

 

Vision
To be a leading elections management body in the region and global communication.

Mission Statement
To ensure free, fair, credible and transparent elections.

Value Statement

To render acceptable,  free and fair elections so to enhance democratic governance system.

The functions of the Commission are to:-

  • oversee and supervise the registration of voters to ensure free and fair elections at primary and secondary election;
  • facilitate civic and voter education;
  • review and determine the boundaries of Tinkhundla  areas for purposes of elections;
  • perform other in connection with elections or boundaries as may be prescribed; and
  • produce periodic reports in respect of the work done.

 


Mission statement

The Directorate of Public Prosecutions exists as to prosecute all criminal cases in the country on behalf of the King and the people of Swaziland openly, without fear or favour, and regardless of pressures from whatever source in an efficient and impartial manner, having regard to the observance of the principles of fundamental rights and freedoms of all people involved and with strict adherence to the requirements of the law.

Functions

  • To institute criminal proceedings
  • To give advice and guidance to the Criminal Investigation Department
  • on the conduct of criminal investigation, decision to prosecute and charges to prefer
  • To institute criminal proceedings against any person or authority in
  • any court with competent jurisdiction.
  • To discontinue the prosecution; at any stage before judgment is
  • delivered of any criminal proceedings instituted by the Directorate of Public Prosecutions


Establishment of the office of  the Director of Public Prosecutions


The office of the Director of Public Prosecutions is established in terms of section 162 of the Constitution of Swaziland. It is an Independent office in Terms of Section 162(6)(b), which states “The office of the Director of Public Prosecution shall be independent and not be subject to the direct or control of any other person or authority”.

Sections of the Department:

The Office of the Director of Public Prosecution has got  four sections which are out lined below.

  • Sexual offences Unit
  • General Crimes Unit
  • Fraud and Transnational Unit
  • Anti corruption Unit


The General offences Unit

This Unit performs the traditional types of prosecutions as it deals with a wide range of crimes.  Its main focus is all the offences that cause harm to the person of another which include ; murder, culpable homicide, all forms of assault, rape, adduction, arson, malicious injury of property, robbery, theft, receiving stolen property, criminal injura to mention but a few.
The unit also prosecutes other serious common law and statutory law violations such as people trafficking and smuggling, treason, sedition, public violence, money laundering and all its predicate offences, terrorism and its financing, elections offences, possession of illicit and harmful drugs and/or substances, unlawful possession of weapons and fire arms and ammunition, to mention but a few.

Domestic and Sexual offences Unit


This unit was established as a direct response to alarming increase of sexual assault cases committed against women and children. The Aim of this Unit is to eradicate secondary victimization to survivors of sexualabuse and most importantly,  to take into account the best interests of the child survivor and accussed. There is a special team of prosecutors dedicated, to the exclusive prosecution of all sexual abuse cases.

Fraud and Transnational Crimes Unit

Fraud and transnational crimes know no boundaries. Those types of offences are mostly committed by white collar criminals who have international contacts who aid them in the commission of such offences.
The amounts involved are usually enormous and inevitable have a negative impact in growing economies such as ours. It become imperative that a special unit be established to exclusively prosecute these types of crimes.

Anti Corruption Unit.

Swaziland has been ravaged and continues to be adversely affected by corruption. Corruption is rife both the public and private sector and is adversely affects our struggling economy. This Unit was established to prevent the collapse of our economy as a resulty of corruption practices within government and the private sector. A special Team of prosecutors who collaborate with other agencies mainly the ANTI – CORRUPTION COMMISION  deals with corruption cases in the chambers.

Director: Mr. Nkosinathi Maseko     
Deputy Director: Vacant

Physical address

4th Floor Justice Building
Mhlambanyatsi / Usuthu Link Road
Mbabane


Tel:        +268 404 4293
Fax:         +268 404
Email:     

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