Eswatini 2005 Constitution

CHAPTER IX. DIRECTOR OF PUBLIC PROSECUTIONS AND THE COMMISSION ON HUMAN RIGHTS AND PUBLIC ADMINISTRATION

Part 1. Director of Public Prosecutions

162. Appointment, tenure functions, etc

1. There shall be a Director of Public Prosecutions whose office shall be a public office.
2. The Director of Public Prosecutions, in this Chapter referred to as “the Director,” shall be appointed by the King on the advice of the Judicial Service Commission.
3. A person shall not qualify to be appointed Director unless that person qualifies for appointment as a judge of the superior courts.
4. The Director shall have power in any case in which the Director considers it proper to do so, to-
   1. institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person against the laws of Swaziland;
   2. take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority;
   3. discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the Director or any other person or authority; and
   4. perform such other functions as may be prescribed.
5. The powers under subsection (4) may be exercised by the Director in person or by subordinate officers acting in accordance with the general or special instructions of the Director.
6. In the exercise of the powers conferred under this Chapter, the Director shall –
   1. have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process; and
   2. be independent and not be subject to the direction or control of any other person or authority.
7. Without derogating from the provisions of subsection (6), the Director shall, in the exercise of the powers under this Chapter, consult the Attorney-General in relation to matters where national security may be at stake.
8. The Director shall be removed from office in the same manner and on the same grounds as a Judge of the superior courts, except that the Minister responsible for Justice shall initiate the proceedings in terms of section 158 (3).

Part 2. Commission on Human Rights and Public Administration

163. Commission on Human Rights and Public Administration

1. There shall be established within a year of the first meeting of Parliament after the commencement of this Constitution, a Commission on Human Rights and Public Administration in this Chapter referred to as “the Commission”.
2. The Commission shall consist of –
   1. a Commissioner for Human Rights and Public Administration; and
   2. at least two Deputy Commissioners for Human Rights and Public Administration as may be necessary for the effective discharge of the functions of the Commission.
3. The members of the Commission shall be appointed by the King on the advice of the Judicial Service Commission.
4. Subject to subsection (5) (a), a person shall not qualify for appointment as Commissioner unless that person qualifies for appointment as judge of the superior courts.
5. A person shall not be eligible for appointment as Deputy Commissioner unless that person –
   1. is of high moral character and proven integrity; and
   2. possesses considerable experience and demonstrated competence in the conduct of public affairs; or
   3. is of high calibre in the conduct of public affairs.
6. The first persons to be appointed Commissioner and Deputy Commissioner shall hold office for a term not exceeding seven years and five years respectively and may be re-appointed for a single term of five years each.
7. A person appointed subsequent to the first appointment as Commissioner or Deputy Commissioner respectively shall hold office for a term not exceeding five years and may be re-appointed for a single term.

164. Functions of the Commission

1. The Commission shall perform the following functions –
   1. investigate complaints concerning alleged violations of fundamental rights and freedoms under this Constitution;
   2. investigate complaints of injustice, corruption, abuse of power in office and unfair treatment of any person by a public officer in the exercise of official duties;
   3. investigate complaints concerning the functioning of any public service, service commission, administrative organ of the Government, the Armed Forces in so far as the complaints relate to the failure to achieve acceptable delivery of services or equitable access by all in the recruitment to those services or fair administration by those services;
   4. take appropriate action for the remedying, correction or reversal of instances specified in paragraphs (a), (b) and (c) through such means as are fair, proper and effective, including –
      1. publicising the findings and recommendations of the Commission;
      2. negotiation and compromise between the parties concerned;
      3. causing the complaint and the findings of the Commission on that complaint to be reported to the superior of an offending person or institution;
      4. referring matters to the Director of Public Prosecutions or the Attorney General for appropriate action to secure the termination of the offending action or conduct, or the abandonment or alteration of the offending procedures; and
      5. bringing proceedings to restrain the enforcement of any legislation or regulation by challenging the validity of that legislation or regulation where the offending action or conduct is sought to be justified by reference to that legislation or regulation.
   5. investigate instances of alleged or suspected corruption and the misappropriation of public moneys or property by officials and to take or recommend appropriate steps, including reports to the Attorney-General or the Director of Public Prosecutions or the Auditor General;
   6. eliminate or foster the elimination of corruption, abuse of authority or public office;
   7. promote and foster strict adherence to the rule of law and principles of natural justice in public administration;
   8. promote fair, efficient and good governance in public affairs;
   9. take such other measures incidental to the above as may be prescribed by Parliament.
2. The Commission may investigate any matter referred to in subsection (1) in any of the following circumstances –
   1. where a complaint is duly made to the Commission by any person alleging that the complainant has sustained an injustice as a result of a fault in administration;
   2. where a member of Parliament requests the Commission to investigate the matter on the ground that a person or body of persons specified in the request has or may have sustained an injustice;
   3. in any other circumstances in which the Commissioner, in good faith, considers 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.

165. Powers of the Commission

1. The powers of the Commission shall include the following –
   1. to issue subpoenas requiring the attendance of any person before the Commission and the production of any document, record or thing required for the investigation by the Commission;
   2. to fine any person for contempt of any subpoena or order, or cause that person to be brought by a competent court for the enforcement of the subpoena or order of the Commission;
   3. to question any person in respect of any subject matter under investigation before the Commission;
   4. to require any person to disclose truthfully and frankly any information within the knowledge of that person relevant to any investigation by the Commission.
2. The Commission may during the course of its proceedings or as a consequence of its findings, make such orders and give such directions as are necessary and appropriate in the circumstances.
3. The Commission shall not investigate –
   1. a matter which is pending before a court;
   2. a matter involving the relations or dealings between the Government and any other Government or an international organisation; or
   3. a matter relating to the exercise of any royal prerogative by the Crown.
4. Subject to the provisions of subsection (3) the Commission may investigate an authority that has been established to investigate a matter where in the opinion of the Commissioner the authority is failing to carry out its mandate with due speed.

166. Independence of the Commission

The Commission shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority.

167. Discretion of Commissioner

In determining whether to initiate, continue or discontinue an investigation, the Commissioner shall exercise discretion and in particular and without prejudice to the generality of that discretion, the Commissioner may refuse to initiate or continue an investigation where it appears that –

1. the complaint relates to action of which the complainant had knowledge for more than twelve months before the complaint was received by the Commission;
2. the subject matter of the complaint is trivial, frivolous, vexatious or is not made in good faith; or
3. the complainant has not a sufficient interest in the subject matter of the complaint, unless justified in terms of section 164 (2) (c).

168. Report of investigation

1. Where a complaint, or request for an investigation, is duly made and the Commissioner decides not to investigate the matter or where the Commissioner decides to discontinue an investigation of the matter, the Commissioner shall inform the person who made the complaint or request of the reasons for not investigating or for discontinuing the investigation.
2. The Commission may, where necessary, issue an interim report containing such recommendations as it may deem appropriate in the circumstances.
3. The Commission shall, upon completion of an investigation inform the public officer, person, private enterprise or institution of the findings in writing.
4. Upon the completion of an investigation the Commissioner shall inform the department of Government or the authority concerned of the results of the investigation and where the Commissioner is of the opinion that any person has sustained an injustice in consequence of a fault in administration, the Commissioner shall inform the department of Government or the authority of the reasons for the opinion and make such recommendations as the Commissioner thinks fit.
5. The Commission may in the interim report, or in the final report, specify the time within which the injustice should be remedied.
6. Where the investigation is undertaken as a result of a complaint or request, the Commissioner shall inform the person who made the complaint or request of the findings.
7. Where the matter in the opinion of the Commissioner is of sufficient public importance or where the Commissioner has made a recommendation under subsection (4) or (5) and within the time specified by the Commissioner no sufficient action has been taken to remedy the injustice, or terminate the offensive conduct then, subject to such provision as may be made by Parliament, the Commission shall lay a special report on the case before Parliament.
8. The Commissioner shall make annual reports to Parliament on the performance of the Commission which reports shall include statistics in such form and in such detail as may be prescribed of the complaints received by the Commission and the results of any investigation.

169. Restrictions on matters for investigation

The Commission shall not, in investigating any matter leading to, resulting from or connected with the decision of a Minister, inquire into or question the policy of the Government in accordance with which the decision was made.

170. Vacation of office and immunity of Commissioners

1. The provision of this Constitution relating to the removal of judges of the superior courts from office shall, subject to any necessary modifications and adaptations, apply to the removal from office of the Commissioner or Deputy Commissioner.
2. A member of the Commission shall have such and like protection and privilege in the case of any action or suit brought against the Commission for any act done or omitted to be done in the honest execution of the duties of the Commission as is by law given to acts done or words spoken by a judge of the superior courts in exercise of the judicial office.

171. Staff and expenses of the Commission

1. The Commission shall have such staff as shall be appropriate for the effective discharge of the functions of the Commission.
2. Administrative expenses of the Commission including salaries, allowances and pensions payable to, or in respect of, persons serving with the Commission, shall be charged on the Consolidated Fund.