Fundamental rights and freedoms of the individual
14. (1)
(a) respect for life, liberty, right to fair hearing, equality before the law and equal protection of the law;
Protection of right to personal liberty
16.
(6) Where a person is arrested or detained -
(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the arrest or detention and place of the arrest or detention.
(b) the next-of-kin, legal representative and personal doctor of that person shall be allowed reasonable access and confidentiality to that person; and
(c) that person shall be allowed reasonable access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
21. (1) In the determination of civil rights and obligations or any criminal charge a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adjudicating authority established by law.
(2) A person who is charged with a criminal offence shall be-
(a) presumed to be innocent until that person is proved or has pleaded guilty;
(b) informed as soon as reasonably practicable, in a language which that person understands and in sufficient detail, of the nature of the offence or charge;
(c) entitled to legal representation at the expense of the government in the case of any offence which carries a sentence of death or imprisonment for life;
(d) given adequate time and facilities for the preparation of the defence;
(e) permitted to present a defence before the court either directly or through a legal representative chosen by that person;
(f) afforded facilities to examine in person or by a legal representative the witnesses called by the prosecution and to obtain the attendance of witnesses to testify on behalf of that person on the same conditions as those applying to witnesses called by the prosecution; and
(g) permitted to have, without payment, the assistance of an interpreter if that person cannot understand the language used at the trial.
(3) Except with the free consent of the person concerned and for purposes of subsection (2), the trial shall not take place in the absence of that person unless that person acts so as to render the continuance of the proceedings in the presence of that person impracticable and the court has ordered that person to be removed and the trial to proceed in the absence of that person.
(4) Where a person is tried for any criminal offence, the accused person or person authorised by the accused person shall, if the accused person or person authorised by the accused person so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
(5) A person shall not be charged with or held to be guilty of a criminal offence on account of any act or omission that did not, at the time the act or omission took place, constitute an offence.
(6) A penalty shall not be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
(7) A person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall not again be tried for that offence or for any other criminal offence of which that person could have been convicted at the trial for the offence, save upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
(8) A person shall not be tried for a criminal offence where that person has been pardoned for that offence.
(9) A person who is tried for a criminal offence shall not be compelled to give evidence at the trial.
(10) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for
such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
(11) All proceedings of every court or adjudicating authority shall be held in public.
(12) Notwithstanding the provisions of subsection (11), a court or adjudicating authority -
(a) may, unless it is otherwise provided by Act of Parliament, exclude from its proceedings persons other than the parties and their legal representatives to such extent as the court may consider -
(i) in circumstances where publicity may unduly prejudice the interests of defence, public safety, public order, justice, or public morality or would prejudice the welfare of persons under the age of eighteen years or as the court may deem appropriate; or
(ii) in interlocutory proceedings;
(b) shall, where it is so prescribed by a law that is reasonably required in the interests of defence, public safety, public order, justice, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of the persons concerned in the proceedings, exclude from its proceedings persons, other than the parties and their legal representatives, to such extent as is so prescribed.
(13) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of -
(a) subsection (2) (a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
(b) subsection (2) (e) to the extent that the law in question prohibits legal representation before a Swazi Court or before any Swazi court hearing appeals from such a court;
(c) subsection (2) (f) to the extent that the law in question imposes conditions that should be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or
(d) subsection (7) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying and convicting that member shall in sentencing that member to any punishment take into account any punishment awarded under that disciplinary law.
(14) In the case of a person who is held in lawful detention, the provisions of subsections (1), (2) (e) and (f) and (3) shall not apply in relation to the trial of that person for a criminal offence under the law regulating the discipline of persons held in such detention.
(15) In this section “criminal offence” means a criminal offence under the law of Swaziland, and “proceedings” in relation to a court or adjudicating authority includes the announcement of the decision of the court or adjudicating authority.
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.