Swaziland: Non-interference with the work of individual lawyers
On June 16, 2014 in
Lawyers, as set out in the UN Basic Principles on the Role of Lawyers, shall at all times maintain the honour and dignity of their profession.[1] Their duties include advising clients on their rights and obligations and the working of the legal system insofar relevant to their rights and obligations; assisting clients in every appropriate way and taking legal action to protect their interests; and assisting clients before courts, tribunals and administrative authorities, where appropriate. In doing so, lawyers must seek to uphold human rights and fundamental freedoms, and at all times act freely and diligently in accordance with the law and recognized deontological standards.[2] They must always loyally respect the interests of their clients.[3]
The UN Basic Principles on the Role of the Lawyer recognize that in order for such legal assistance to be effective, it must be carried out independently.[4] To this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole.
Governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.[5]
Among other things, the authorities must ensure that lawyers are granted prompt and regular access to individuals who have been deprived of their liberty, regardless of whether they have been charged with a crime.[6] Initial lawyer-client meetings should occur from the very outset of detention, and in a matter involving suspected criminal conduct, before and during questioning of a suspect by the competent authorities, such as police, and investigating judges.[7] Any delay in access to counsel must be determined and justified on a case-by-case basis. In any case delay should not exceed "forty-eight hours from the time of arrest or detention".[8] Delay in granting an individual access to counsel and/or other interference in the lawyer-client however, in particular in a criminal case, can affect the ability of the accused to protect and preserve his or her rights and may prejudice the overall fairness of the subsequent criminal proceedings.
International standards related to the rights of people charged with a criminal offence, including the ICCPR, provide that a client must be granted "adequate time and facilities for the preparation of his defence".[9] Respect for this right requires, among other things that lawyers be permitted adequate time and facilities to meet with their detained clients. The UN Basic Principles on the Role of Lawyers, among other standards, affirm that those detained "shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality".[10]
Because confidentiality is paramount to an effective lawyer-client relationship, states have duty to respect and protect the confidentiality of lawyer-client communications, within the professional relationship. In the fulfilment of this duty international standards specify that lawyer-client consultations between a detained person and their lawyer "may be within sight, but not within the hearing, of law enforcement officials"[11], ensuring confidentiality but taking security needs into account.
The state is obliged to ensure that lawyers have "access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients".[12]
It is essential that lawyers do not face any adverse consequences for representing any client. The UN Basic Principles and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa require that lawyers "shall not be identified with their clients or their clients' causes as a result of discharging their functions".[13] Furthermore, lawyers "must never be subjected to criminal or civil sanctions or procedures which are abusive or discriminatory or which would impair their professional functions, including as a consequence of their association with disfavoured or unpopular causes or clients".[14] Thus, lawyers "shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority".[15]
Further, the authorities must safeguard lawyers' security where this is threatened as a result of discharging their functions.[16]
Regrettably the ICJ has received reports of intimidation, harassment and interference with the work of lawyers in Swaziland.
On 17 March 2014, human rights lawyer Thulani Maseko and journalist Bheki Makhubu were arrested and charged with criminal contempt of court on the basis of a warrant issued by Chief Justice Ramodibedi. The charges arise from articles allegedly written by Thulani Maseko and Bheki Makhubu in February and March 2014, in which they questioned circumstances surrounding the arrest of government vehicle inspector, Vincent Gwebu. The vehicle inspector had been arrested and charged with contempt of court reportedly after he had arrested the driver of a High Court Judge. The articles also raised questions about the integrity, impartiality and independence of the Swaziland judiciary in relation to the Gwebu case.
At the initial remand hearing, which was held in the Chief Justice's chamber and not in open court, the accused were not allowed to apply for bail and their lawyer was not allowed to appear on their behalf.[17] Subsequently, a successful challenge to the legality of the arrest, detention and charges against Thulani Maseko and Bheki Makhubu before High Court Judge Mumcy Dhlamini, resulted in their release from custody. However, two days later, the men were rearrested and detained when the State appealed Judge Mumcy Dhlamini's ruling.[18] The ICJ has condemned this as "an attack not only against these two men, but on the rule of law in Swaziland".[19]
On 12 June 2014, a group of United Nation human rights experts condemned "the repeated arrests, detention and trial of Mr. Maseko and Mr. Makhubu and are concerned that these may be directly related to their legitimate exercise of the right to freedom of expression". The Special Rapporteur on the right to freedom of opinion and expression said that the detention and trial "runs contrary to Swaziland's international human rights obligations" and the Special Rapporteur on the independence of judges and lawyers said that she is "also concerned about allegations of lack of due process in the trials of these two men." The experts urged the authorities of Swaziland to uphold the independence of the judiciary and to ensure that judicial proceedings be conducted fairly and in accordance with the country's international human rights obligations.[20]
As of 15 June 2014 the two men remain detained. The ICJ will continue to observe and monitor the proceedings against Thulani Maseko and Bheki Makhubu, given the arbitrary nature of the arrest and detention, concerns that the charges are inconsistent with respect for the right to freedom of expression, and concerns about the fairness of the proceedings.
In June 2009, Thulani Maseko was charged initially under the Suppression of Terrorism Act and then under the Sedition Act, based on remarks he allegedly made at a May Day rally in Manzini, where reportedly he had spoken with approval of an attempt by two men to bomb a bridge near one of the King's palaces. The charge was never brought to trial. At the time, Nicole Fritz of the Southern African Litigation Centre said, "That [the Swazi government] would arrest Thulani who has been involved in almost every important human rights challenge in Swaziland in recent years shows just how shameless it is."[21]
Footnotes (↵ returns to text)
1. Also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(h).
Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
2. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(i).
Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
3. See UN Basic Principles on the Role of Lawyers, "Principles
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
13. The duties of lawyers towards their clients shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(j).
Lawyers shall always loyally respect the interests of their clients.
4. UN Basic Principles on the Role of Lawyers, "Preamble
Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,
5. UN Basic Principles on the Role of Lawyers, "Principle
Governments shall ensure that lawyers
(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
Also see Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(b)(2).
States shall ensure that lawyers:
1. are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article M.2(b) and (f);
2. Rights upon arrest:
(b) Anyone who is arrested or detained shall be informed upon arrest, in a language he or she understands, of the right to legal representation and to be examined by a doctor of his or her choice and the facilities available to exercise this right.
(f) Any person arrested or detained shall have prompt access to a lawyer and, unless the person has waived this right in writing, shall not be obliged to answer any questions or participate in any interrogation without his or her lawyer being present.
General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), "Principle
1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.
Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), "para.
The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.
Human Rights Committee, Concluding Observations on Georgia (1997), UN Doc. CCPR/C/79/Add.75, "para.
The Committee urges the State party to take urgent steps to improve the situation in prisons, in particular, sanitary conditions. It invites the State party to cut down on the use of imprisonment as a punishment for minor violations and on pre-trial detention for excessive periods
International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), "Principle
In times of crisis, lawyers must be guaranteed prompt, regular and confidential access to their clients, including to those deprived of their liberty, and to relevant documentation and evidence, at all stages of proceedings. All branches of government must take necessary measures to ensure the confidentiality of the lawyer-client relationship, and must ensure that the lawyer is able to engage in all essential elements of legal defence, including substantial and timely access to all relevant case files.
7. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article M.2(f)
Any person arrested or detained shall have prompt access to a lawyer and, unless the person has waived this right in writing, shall not be obliged to answer any questions or participate in any interrogation without his or her lawyer being present.
and N.2(c);
This right applies during all stages of any criminal prosecution, including preliminary investigations in which evidence is taken, periods of administrative detention, trial and appeal proceedings.
General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012), UN Doc. A/RES/67/187, Guideline 3, "para
43. States should introduce measures…
(b) To prohibit, in the absence of any compelling circumstances, any interviewing of a person by the police in the absence of a lawyer, unless the person gives his or her informed and voluntary consent to waive the lawyer's presence, and to establish mechanisms for verifying the voluntary nature of the person's consent. An interview should not start until the legal aid provider arrives;
Human Rights Council, Resolution 13/19 on Torture and other cruel, inhuman or degrading treatment or punishment: the role and responsibility of judges, prosecutors and lawyers, UN Doc. A/HRC/RES/13/19 (2010), "para.
Calls upon States in the context of criminal proceedings to ensure access to lawyers from the outset of custody and during all interrogations and judicial proceedings, as well as access of lawyers to appropriate information in sufficient time to enable them to provide effective legal assistance to their clients;
9. ICCPR, "Article
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:…
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article N.3;
(a) The accused has the right to communicate with counsel and have adequate time and facilities for the preparation of his or her defence.
(b) The accused may not be tried without his or her counsel being notified of the trial date and of the charges in time to allow adequate preparation of a defence.
(c) The accused has a right to adequate time for the preparation of a defence appropriate to the nature of the proceedings and the factual circumstances of the case. Factors which may affect the adequacy of time for preparation of a defence include the complexity of the case, the defendant's access to evidence, the length of time provided by rules of procedure prior to particular proceedings, and prejudice to the defence.
(d) The accused has a right to facilities which assist or may assist the accused in the preparation of his or her defence, including the right to communicate with defence counsel and the right to materials necessary to the preparation of a defence.
(e) All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate with a lawyer, without delay, interception or censorship and in full confidentiality.
1. The right to confer privately with one's lawyer and exchange confidential information or instructions is a fundamental part of the preparation of a defence. Adequate facilities shall be provided that preserve the confidentiality of communications with counsel.
2. States shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
3. The accused or the accused's defence counsel has a right to all relevant information held by the prosecution that could help the accused exonerate him or herself.
4. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be
provided at the earliest appropriate time.
5. The accused has a right to consult legal materials reasonably necessary for the preparation of his or her defence.
6. Before judgement or sentence is rendered, the accused and his or her defence counsel shall have the right to know and challenge all the evidence which may be used to support the decision. All evidence submitted must be considered by the judicial body.
7. Following a trial and before any appellate proceeding, the accused or the defence counsel has a right of access to (or to consult) the evidence which the judicial body considered in making a decision and the judicial body's reasoning in arriving at the judgement.
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.
10. UN Basic Principles on the Role of Lawyers, "Principle
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a awyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article N.3(a) and (c).
Also, Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), "para
Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 91"Article
Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including:
(a) Confidentiality of the lawyer-client relationship and the right to refuse to give testimony if it impinges on such confidentiality;
(b) The right to travel and to consult with their clients freely born within their own country and abroad;
(c) The right to visit, to communicate with and to take instructions from their clients;
(d) The right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work;
(e) The right to accept or refuse a client or a brief on reasonable personal or professional grounds.
International Bar Association (IBA) Standards for the Independence of the Legal Profession (1990), "Article
12. The independence of lawyers in dealing with persons deprived of their liberty shall be guaranteed so as to ensure that they have free, fair and confidential legal assistance, including the lawyer's right of access to such persons. Safeguards shall be built to avoid any possible suggestion of collusion, arrangement or dependence between the lawyer who acts for them and the authorities.
13. Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including:
a) confidentiality of the lawyer-client relationship, including protection of the lawyer's files and documents from seizure or inspection and protection from interception of the lawyer's electronic communications;
b) the right to travel and to consult with their clients freely both within their own country and abroad;
c) the right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work.
International Law Association, Paris Minimum Standards of Human Rights Norms in a State of Emergency (1984), "Article
Any law providing for preventive or administrative detention shall secure the following minimum rights of the detainee: …
(b) The right to communicate with, and consult, a lawyer of his own choice, at any time after detention.
.↵
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
Outside criminal justice matters, Principle 22 establishes that "Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential". Also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article N.3(e)(1)-(2).
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate with a lawyer, without delay, interception or censorship and in full confidentiality.
2. States shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential
It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
"Adequate facilities" must include access to documents and other evidence; this access must include all materials69 that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article N.3(e)(3)-(7);
4. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
13. Basic Principles on the Role of Lawyers, "Principle
Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(g).
14. International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), "Principle
Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), "Article
Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law and it is the duty of the lawyer to do so to the best of his ability and with integrity and independence. Consequently, the lawyer is not to be identified by the authorities or the public with his client or his client's cause, however popular or unpopular it may be.
Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights,Article I(e);
Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority.
Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declation), "Article
No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or assisted any client or for having represented any client's cause.
Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People's Rights, Article I(f).
17. International Commission of Jurists, 'Swaziland: ICJ sends team to observe bail hearing of human rights lawyer and journalist', 24 March 2014.↵
18. International Commission of Jurists, 'Swaziland: trial of human rights lawyer Thulani Maseko and journalist Bheki Makhubu commences', 23 April 2014.↵
19. International Commission of Jurists, 'Swaziland: ICJ concerned at moves to re-arrest human rights defenders Thulani Maseko and Bheki Makhubu', 9 April 2014.↵
20. UNOHCHR, 'Swaziland: UN experts condemn continued detention and trial of human rights defenders', 12 June 2014.↵
21. Southern African Litigation Centre, News Release: Thulani Maseko (2 June 2009).↵
Swaziland: Integrity and accountability of the legal profession
Swaziland: Legal education
Swaziland: Introduction
Swaziland: Legal tradition
Swaziland: Constitutional structure
Swaziland: International treaty status
Swaziland: Court structure
Swaziland: Judges
Swaziland: Constitutional and legislative recognition of the principle of judicial independence
Swaziland: Appointment and promotion of judges; Security of tenure
Swaziland: Financial independence of the judiciary
Swaziland: Independence and impartiality; Judicial integrity and accountability
Swaziland: Lawyers
Swaziland: The role of lawyers
Swaziland: Access to the legal profession
Swaziland: Independence of the legal profession: the Law Society
Swaziland: Lawyers' freedom of association and expression
Swaziland: Prosecutors
Swaziland: Functioning of the prosecutorial services
Swaziland: The prosecutor's career
Swaziland: Accountability of the prosecutorial services
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