Swaziland
Information current as of: April 5, 2011
General
Country
Kingdom of Swaziland (Swaziland). [1]
Geographical Region
Africa (Southern Africa). [2]
Death Penalty Law Status
Abolitionist de facto. [3]
Methods of Execution
Hanging. [4]
References
[1]
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[3]
[4]
Country Details
Official Language(s)
SiSwati, English. [1]
Population
1,200,000. [2]
Number of Individuals Currently Under Sentence of Death
7. Reports by Hands Off Cain and Amnesty International on the number of individuals held under sentence of death in Swaziland conflict, but we believe we understand why. Hands Off Cain’s reporting over the years 2000-2011 is fairly consistent, ultimately reporting 8 individuals under sentence of death, with two sentences confirmed on appeal. It seems likely that HOC failed to subtract a prisoner who won a retrial, and should be reporting 7 individuals under sentence of death. [3] Amnesty International reports 3 individuals under sentence of death, [4] as did Hood & Hoyle in 2008, citing Amnesty reports. [5] Instructively, Amnesty’s estimates of individuals under sentence of death dropped precipitously for the year 2004, when Amnesty began tracking only death sentences confirmed on appeal for Swaziland. [6] News sources do not seem completely consistent with any of the reports by HOC or Amnesty, but do reveal that African sources refer to any person who has been sentenced to death by the High Court as being held under the sentence of death, [7] so we used HOC’s numbers.
Annual Number of Reported Executions
Executions in 2013 to date (last updated on May 21, 2013)
0. [8]
Executions in 2012
0. [9]
Per capita execution rate in 2012
0 executions
Executions in 2011
0. [10]
Per capita execution rate in 2011
0 executions.
Executions in 2010
0. [11]
Executions in 2009
0. [12]
Executions in 2008
0. [13]
Executions in 2007
0. [14]
Year of Last Known Execution
1983. [15]
References
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Crimes and Offenders Punishable By Death
Crimes Punishable by Death
Murder.
A court case indicates that under Section 296(1) and 297 of the Criminal Law and Procedure Act 67 of 1938 the penalty for murder is death. [1]
Treason.
Treason is defined by the Constitution as acting by violent or unlawful means against the Constitution, or aiding or abetting one who does so. [2] The penalty for treason under statutes effective in 1989 was death. [3]
Does the country have a mandatory death penalty?
No. Prior to 2005, courts exercised discretionary sentencing only if they found “extenuating circumstances,” [4] and a 2001 court case indicates that discretion was somewhat limited. Under Section 296(1) and 297 of the Criminal Law and Procedure Act 67 of 1938 the penalty for murder was death unless there were extenuating circumstances. [5] As Hood & Hoyle indicate, the ambit of the court’s discretion may have been unclear. [6] But in 2005, Article 15(2) of the new Constitution resolved the issue of whether courts may always exercise discretion by making the mandatory death penalty unconstitutional. [7]
For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?
The mandatory death penalty is unconstitutional in Swaziland. [8]
Crimes For Which Individuals Have Been Executed Since January 2008:
The last known execution was in 1983. [9]
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime.
Swaziland is party to the ICCPR, [10] which prohibits the execution of individuals for crimes committed while below age 18. Amnesty International’s When the State Kills reports that under Swazi law individuals are not to be executed for crimes committed while below age 18. [11]
Pregnant Women.
Amnesty International’s When the State Kills reports that under Swazi law pregnant women are not to be executed. [12] In addition, Swaziland is party to the ICCPR, [13] which prohibits the execution of pregnant women.
Mentally Ill.
Insanity at the time of the offense can preclude or limit criminal liability, and the accused can be given a mental evaluation at some point during the investigation of a crime to establish sanity. [14] We did not find information about whether an individual who becomes insane after he is convicted and sentenced to death can be executed.
Comments.
Under Swaziland’s Constitution the rights and guarantees of international human rights treaties (or any treaty) might not be self-executing. [15] We did not obtain Swaziland’s domestic laws (although we did conduct a search of jurisprudence at Saflii.org), so this list of exclusions might not be complete.
References
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International Commitments
ICCPR
Party?
Yes. [1]
Date of Accession
March 26, 2004. [2]
Signed?
No. [3]
Date of Signature
Not Applicable.
First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee
Party?
No. [4]
Date of Accession
Not Applicable.
Signed?
No. [5]
Date of Signature
Not Applicable.
Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty
Party?
No. [6]
Date of Accession
Not Applicable.
Signed?
No. [7]
Date of Signature
Not Applicable.
American Convention on Human Rights
Party?
Date of Accession
Signed?
Not Applicable.
Date of Signature
Death Penalty Protocol to the ACHR
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
African Charter on Human and Peoples' Rights (ACHPR)
Party?
Yes. [8]
Date of Accession
Sep. 15, 1995. [9]
Signed?
Yes. [10]
Date of Signature
Dec. 20, 1991. [11]
Protocol to the ACHPR on the Rights of Women in Africa
Party?
No. [12]
Date of Accession
Not Applicable.
Signed?
Yes. [13]
Date of Signature
Dec. 7, 2004. [14]
African Charter on the Rights and Welfare of the Child
Party?
No. [15]
Date of Accession
Not Applicable.
Signed?
Yes. [16]
Date of Signature
Jun. 29, 1992. [17]
2012 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [18]
Vote
Against. [19]
2010 Record of Votes on the UN General Assembly Moratorium Resolution
Signed the Note Verbale of Dissociation
Yes. [20]
Cosponsor
No. [21]
Vote
Against. [22]
Signed the Note Verbale of Dissociation
Yes. [23]
2008 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [24]
Vote
Against. [25]
Signed the Note Verbale of Dissociation
Yes. [26]
2007 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [27]
Vote
Abstained. [28]
Signed the Note Verbale of Dissociation
Yes. [29]
References
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[29]
Death Penalty In Law
Does the country’s constitution make reference to capital punishment?
Yes. Article 14(1) enumerates the right to life, among others. Article 15(1) of the Constitution states that no person shall be deprived of life save in execution of the sentence of a court in respect of a criminal offence under the law of the country. Article 15(2) states that the death penalty shall not be mandatory. [1]
Does the country’s constitution make reference to international law?
Article 238 of the Constitution states that international treaties and agreements are ratified by an Act of the Parliament or by resolution of at least two-thirds of the members at a joint sitting of the two Chambers of Parliament. However, unless it is self-executing, an international agreement becomes law in Swaziland only when enacted into law by Parliament. [2] The constitution does not make specific reference to international human rights agreements or standards.
Have there been any significant changes in the application of the death penalty over the last several years?
Swaziland has executed about 34 people since its independence from Britain in 1968, [3] but has not carried out any executions since 1983. [4] There have been some more recent changes in the application of the death penalty. In 2005, the Kingdom promulgated a Constitution, under which the mandatory death penalty is prohibited. [5] This represents a move to clearly discretionary sentencing—previously, discretion was limited to cases where courts found extenuating circumstances. [6] Additionally, over the past decade there has been some interruption in the availability of courts of appeal—in 1989 the Appellate Court was essentially a visiting guest court from South Africa. [7] For instance, in 2003 a death-sentenced prisoner had lodged an appeal, but there was no appeals court to hear it. [8] The new Constitution establishes a Supreme Court (and High Court), [9] but foreign-born judges still comprise the majority of the Supreme Court [10] and we do not know whether the availability of an appeals court is intermittent. A search of Amnesty’s recent annual reports shows that death sentences have become uncommon in Swaziland, but some condemned prisoners may still face appeals and confirmation of their sentences.
Swaziland’s King ultimately controls death penalty policy in the nation, and he has a reputation for leniency. [11] Perhaps the most serious issue regarding application of the death penalty in a country like Swaziland is the length of time individuals can spend on death row with no notion of when policy might change, resulting in their executions. [12] In 2001, the King pardoned four murderers who had served 16 to 18 years on death row [13] —in 2000, a legislator had urged the government to hang or free a number of death row inmates, arguing that it is inhumane to keep someone on death row for 10 or more years without telling him when he will be killed. [14]
Is there currently an official moratorium on executions within the country?
Swaziland has suspended executions on the grounds it is searching for more humane methods of execution, which seems like an official moratorium. Some believe this is a ruse to cover up the fact that the government has simply not been able to procure an executioner after the last one died. [15] It is possible to construe the situation in Swaziland as only a de facto moratorium, for which several explanations (official and unofficial) are hazarded. [16]
Have there been any significant published cases concerning the death penalty in national courts?
In our search of jurisprudence we did not find any cases significantly developing or elucidating the law in Swaziland. This is particularly the case because cases preceding the 2005 Constitution (prohibiting the mandatory death penalty) [17] applied an “extenuating circumstances” rule [18] that did not always allow for full discretion. [19] In our review of post-2005 cases at Saflii.org (a resource that might not be complete), we did not find any that shed light on how the death penalty is affected by the new Constitution.
Where can one locate or access judicial decisions regarding the death penalty?
The Southern Africa Legal Information Institute (http://www.saflii.org) provides access to jurisprudence. Also, the Swazi Legal Information Institute (http://www.swazilii.org/) provides a web searcher for sentences of the Supreme Court and the High Court of Swaziland. Both sites are periodically updated, allow keyword searches, and might not be comprehensive.
What is the clemency process?
According to article 78 of the Constitution the King may grant pardon, commutation, a stay or respite. The Constitution provides that the King “shall act on the advice of a Committee on the Prerogative of Mercy…,” a body which includes members of the King’s Advisory Council, the Attorney General, the Minister of Justice and a health expert. After a capital conviction in a civilian court, Committee must obtain a report from the trial court (or judiciary) and may consider other information in determining whether to advise the King to exercise the prerogative of mercy. [20]
Are jury trials provided for defendants charged with capital offenses?
The U.S. Department of State reports that jury trials are not used. [21] In 1989, Amnesty International reported that the adjudicatory process involves lay judges, who assist in determining facts, including whether there are extenuating circumstances. [22] We do not know whether the practice has continued, but if it has, this is comparable to a jury in our estimation.
Brief Description of Appellate Process
In 1989, Amnesty International reported: “All death sentences are automatically referred to the Court of Appeal, which is not a permanently constituted court, but is composed of visiting judges and senior barristers from South Africa. [23] As of 2011, the majority of Supreme Court justices was foreign. [24] The Constitution mandates a Supreme Court, [25] and we do not know whether this court is now permanent. Defendants have the right to appeal to the Supreme Court. [26]
References
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Death Penalty In Practice
Where Are Death-Sentenced Prisoners incarcerated?
It is possible that death-sentenced prisoners are held at Matsapha Central Prison, where the gallows were as of 1989. [1]
Description of Prison Conditions
Prison conditions in general are life threatening. Corporal punishment is widely accepted, and both consensual sex and rape amongst prisoners contributes to the spread of HIV. Local monitoring was not permitted, although international NGOs were permitted access. [2]
Are there any known foreign nationals currently under sentence of death?
A recent resource reports a South African citizen under sentence of death pronounced in 2003. [3]
What are the nationalities of the known foreign nationals on death row?
A recent resource reports a South African citizen under sentence of death pronounced in 2003. [4]
Are there any known women currently under sentence of death?
We were not able to determine whether women are held under sentence of death in Swaziland.
Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?
We found no reports of individuals held under sentence of death for crimes committed while below age 18.
Comments regarding the racial/ethnic composition on death row
We were not able to determine the racial or ethnic composition on death row.
Are there lawyers available for indigent defendants facing capital trials?
Amnesty International reported in 1989 that lawyers were available for individuals facing capital charges, [5] and the U.S. Department of State reported in 2009 that court-appointed counsel is provided at government expense when defendants face capital charges (or are prosecuted for crimes punishable by life imprisonment). [6]
Are there lawyers available for indigent prisoners on appeal?
Defendants have the right to appeal to the Supreme Court, [7] but we do not know whether this is accompanied by a right to state-funded counsel for indigent appellants.
Comments on Quality of Legal Representation
We did not find any information regarding the quality of legal representation in Swaziland.
Other Comments on Criminal Justice System
According to the U.S. Department of State, detainees for ordinary offenses are usually promptly informed of the charges against them and permitted contact with family, although authorities may exceed the statutory period (48 hours) for bringing charges against a detainee. Judicial understaffing and inefficiency leads to lengthy pretrial detention. [8] In 1989, an appellant might wait some time before a court was formed to hear his appeal, [9] and it is unclear to us whether this situation is fully resolved. [10]
References
[1]
[2]
[3]
[4]
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[10]
Decisions of International Human Rights Bodies
Decisions of Human Rights Committee
Swaziland has not yet submitted its report, due in 2005, to the Human Rights Committee, [1] so the Committee has not yet issued concluding observations pursuant to self-reporting. We did not find any decisions pursuant to communications with the Committee.
Decisions of Other Human Rights Bodies
Swaziland will be reviewed by the Human Rights Council pursuant to the Universal Periodic Review on October 4, 2011. [2]
References
[1]
[2]
Additional Sources and Contacts
Direct member(s) of World Coalition Against the Death Penalty
None.
Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty
Helpful Reports and Publications
This publication is interesting for its broad discussion of the death penalty in Africa and for its cites to potentially useful sources and contacts:
Lilian Chenwi, Towards the abolition of the death penalty in Africa: a Human Rights Perspective, Pretoria Universtity Law Press (PULP), 2007.
