BY MBONO MDLULI
MBABANE – The ruling made by Chief Justice (CJ) Bheki Maphalala regarding the Anti-Corruption Commission (ACC) is not binding.
This was said by Attorney General (AG) Sifiso Khumalo today when Prime Minister Russell Mmiso Dlamini launched an Anti-Corruption Task Team at Cabinet Offices in Mbabane. Khumalo was responding to a question posed by Eswatini Observer’s Journalist Kwanele Dhladhla, who wanted to know how the ACC was going to work with the 2015 ruling that was issued by the CJ.
Khumalo said they have always held the view that the ruling issued by the CJ on the matter was not binding. Therefore, there was nothing that could hinder the ACC from going about its duties.
“In fact, nothing has stopped the ACC from functioning and we think that the CJ also holds the same view that from a legal standpoint, nothing should stop the ACC from doing its mandate,” Khumalo said.
The AG stated that they were aware that the matter was pending at the court and was appealed by the office of the Director of the Public Prosecutions (DPP). The AG further mentioned that they had always held the view that when the CJ pronounced himself on the matter, he was doing so orbiter or in passing and it was not what he called a ratio decidendi or a legal principle.
During the discussions on corruption, Mbabane East Member of Parliament (MP) Welcome Dlamini suggested that Chief Justice (CJ) Bheki Maphalala should undo a precedent judgment that was issued by CJ Maphalala in 2015, which, according to the legislator, killed the Anti-Corruption Commission (ACC), an organisation set by government to fight corruption in the country.
MP Dlamini referred to the case of former Minister of Commerce, Industry and Trade Gideon Dlamini against the ACC. He said if that judgment could be undone, the ACC could be a powerful organisation that could effectively deal with corruption.
According to the Times of Eswatini, in this matter the CJ opined that certain sections of the Prevention of Corruption Act, 2006 were unconstitutional. This was when the CJ dismissed the application that had been filed by the ACC to have the former minister of Commerce Industry and Trade arrested, together with Nigerian businessman Fred Ngeri and his wife Sindile, for alleged corruption-related offences.
The local daily publication further stated that the CJ made obiter dicta statements, which were not binding but persuasive, when he delivered the judgment to the effect that certain sections, including Section 12, were unconstitutional. The ACC appealed the judgment and the Supreme Court referred it back to the High Court, where it is supposed to be heard by a full bench.
The matter was supposed to be heard last week Tuesday, but could not be heard because the prosecution could not locate Ngeri, who is said to be in Nigeria. They have since roped in the International Criminal Police Organisation (INTERPOL) to locate Ngeri and serve him the papers so that he could appear before the court. Former Minister Gideon Dlamini was reported to be present last week Tuesday to observe the proceedings and he was accompanied by his wife.
The matter, according to the newspaper, is supposed to return on March 6, 2024 and it is supposed to be heard by Judges Mumcy Dlamini, Nkosinathi Maseko and Justice Mavuso. Judge Mumcy Dlamini is said to have warned that the matter was supposed to continue on March 6, no matter what. It could not be postponed any further.
