Constitutional Development
in Swaziland
A Civil Society Perspective on the
Proposed “New” Dispensation
The Swaziland Coalition of
Concerned Civic Organisations
Formation of SCCCO in January 2003 pursuant the
following problems.



Constitutional process
Rule of law crisis
Fiscal indiscipline as exemplified in government’s
intentions to purchase of a E750 million worth jet
against a deteriorating socio-economic environment

loss of investor confidence

growing budget deficit

incidence and prevalence of HIV/ AIDS

an estimated 300 000 people under food aid
The Coalition: Who we are
SCCCO’s membership includes a wide spectrum of civil society
groups, representing a diversity of views and interests:

Federation of Swaziland Employers & Chamber of Commerce ( FSE
& CC)

Association of Swaziland Business Community (ASBC)
 Swaziland Federation of Trade Unions (SFTU)
 Swaziland Federation of Labour (SFL)
 The Church
 Law Society of Swaziland
 Coordinating Assembly of Non-Governmental Organisations
(CANGO)
 Swaziland National Association of Teachers (SNAT)
 Lawyers for Human Rights LHR(S)
 Women and Law of Southern Africa Research and Educational Trust
(WLSA) - Swaziland Chapter
 Media Institute of Southern Africa (MISA) – Swaziland Chapter
The Coalition: Activities
To date SCCCO members, individually and collectively, have engaged
Government on issues of governance and the need to dialogue.
Specific activities include:






Analysis of the Constitution and its implications for democratisation,
and good governance in Swaziland;
Conducting civic education for communities;
Arrangement of debate/ seminars on the constitutional process and
content of the Draft Constitution;
Lobbying of Parliamentarians during the debate on the constitution;
Training of members in leadership and conflict resolution skills
use of international fora to inform the world about the situation
in Swaziland and to seek support.
The Coalition: Issues for
Discussion
The presentation comprises the following thematic
areas:
 A Historical Background to Constitutional
Development in Swaziland
 Constitution-making: Process and Environment
 The Content: Constitution Provisions and their
Implications
 Socio-Economic Issues
 The Constitution and International Standards
 Proposals on the Way Forward
A Historical Background



26th July, 2005: King Mswati III assents Swaziland’s new
Constitution after 32 years with a nebulous constitutional
framework.
Constitution-making process began in earnest in 1996
and has taken almost ten years and millions of
Emalangeni: has it been worth it?
The appreciation of some of the present issues and
challenges facing Swaziland necessitates an examination
of some historical milestones that plot the trajectory of
the country’s constitutional development.
A HISTORICAL BACKGROUND:
Tracing Back Steps to the Present
Constitution-making process prior to
independence sought self-governance whilst the
recent process sought to bring meaning to this self
governance through the establishing a system of
governance that would provide for:



the manner of political participation and representation
by Swazi people;
relevant institutions;
the distribution and exercise of the power to govern
amongst the various organs of state.
A HISTORICAL BACKGROUND:
Tracing Back Steps to the Present
The complexity of the exercise has been
exacerbated by the challenge of duality: the
desire, on one hand to accommodate and
protect the cultural and traditional identity
of the Swazi people, traditional systems and
institutions as well as to sufficiently
empower the country with the institutions of the “modern”
tate, on the other.
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
Six Phases can be identified:
1960 - 1964:
-
-
Pre self-governing
negotiations
Swazi National Council and European Advisory Council
joint advisory council
Position of political parties (Swaziland Progressive
Party)
Formation of a Constitutional Committee (continued
resistance to involvement of political parties,
recommendations of 50/50 power-sharing)
The Sandy’s Constitutional framework
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
-

Sandy’s Framework:
Legislative Council (Legco)
Executive Council
Office of the Ngwenyama
Office of Her Majesty’s Commissioner
Legco supervised drafting of Independence Constitution
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
1964 – 1968:


pre-independence
developments
Independence constitution espousing democratic
principles: separation of powers and attendant
institutions; protection of fundamental human rights;
recognition and protection of Swazi traditional
institutions.
1967: pre-independence elections contested along party
lines (formation of Imbokodvo National Movement –
INM)
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
1968 – 1973:



1st five years of
independence
1st post-independence elections
NNLC won 3 Parliamentary seats (first presence of
opposition)
Attempt to deport NNLC MP on basis of citizenship (court
declared attempts unconstitutional)
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
1973 – 1978:

(a)
(b)
(c)
King’s Proclamation to the Nation
12th April 1973: Repeal of the 1968 Independence Constitution
failure “to provide the machinery for good government and for
the maintenance of
peace and order;”
causing “growing unrest, insecurity, dissatisfaction with the state
of affairs in our country and is an impediment to free and
progressive development in all spheres of life;”
permitting the “importation into our country of highly undesirable
political practices alien to, and incompatible with the way of life in
our society and designed to disrupt and destroy our own peaceful
and constructive and essentially democratic methods of political
activity; increasingly this element engenders hostility bitterness,
and unrest in our peaceful society;”
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
“there is no constitutional way of effecting
he necessary amendments to the
Constitution; the method prescribed by the
Constitution itself is wholly impracticable
and will bring about the disorder, which any
constitution is meant to inhibit.”
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
Consequences of the repeal:
(i)
Powers of governance vested in King and
dissolution of Parliament:
“I have assumed supreme power in the Kingdom
of Swaziland and that all Legislative, Executive,
and Judicial power is vested in myself and shall,
for the meantime, be exercised in collaboration
with a Council constituted by my Cabinet.”
A HISTORICAL BACKGROUND:
Phases of Constitutional Development





Removal of Chapter II (Fundamental Human Rights and
Freedoms)
Banning of political parties and similar organisations
Prohibition of meetings of a political nature and
demonstrations without special permission from
Commissioner of Police
Introduction of 60 day detention order renewable
indefinitely and beyond the purview of court enquiry
Introduction of army and increased police force visibility
in “strategic places to ensure “peace, order and good
government”
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
1978 – 1992: Establishment of Parliament
Order, 1978
Introduction of Tinkhundla
system: 40 representatives to form an
Electoral College to elect MPs
1982:
death of King Sobhuza II
1982-1985: Liqoqo era – Queen Regent
ousted
power struggle and infighting
within the royalty
1986:
King Mswati III ascends to
the Throne
new forms of legislation
1986 – 1992: various consultative Commissions
A HISTORICAL BACKGROUND:
Phases of Constitutional Development
1992 – to date
1992:
1996:
2002:
2003:
2004:
2005:
2005:
26th July:
Establishment of Parliament Order, altering election
system, dissolving the Electoral College, establishing
55 constituencies, and introduction of secret ballot
Establishment of Constitutional
Review Commission (CRC)
Establishment of Constitution Drafting Committee
(CDC)
Submission of Draft Constitution to King
Parliamentary debate: on Certificate of Urgency
Joint sitting of Parliament
King’s message from the Throne for reconsideration
and addition of some clauses
Assent by the King
A HISTORICAL BACKGROUND:
The Role of Civil Society
Ongoing activism for opening up of political
space and inclusion since pre-independence
period to date:
 Quest for alternatives to SNC for political representation
resulted in the formation of political parties;
 Student and worker organisation activism provided
pressure for commencement of the processes leading to
the writing of a constitution;
 Church activism in involvement in social justice issues;
 Non-governmental organisations dealing with issues of
development, human rights and good governance
CONSTITUTION-MAKING:
The Process
Exclusionary nature of process: unilaterally dictated from
the Throne:






No effort to build consensus on “road-map” of process despite
acknowledged diversity of views.
Appointment of Constitutional Review Commission (CRC) and
Constitution Drafting Committee (CDC) by King (“progressive”
appointees resignations due to “unworkable” conditions”).
Absence of civic education (demonstrated by irrelevant submissions
at Tinkhundla and Sibaya).
Denial of group representation and submissions (impracticality of
individual submissions).
Ad hoc changes in manner of submission collection, time frames for
process, and adoption processes.
Insufficient data to categorise process as truly national: CRC had no
empirical data; CDC reported receiving 1 501 submissions.
CONSTITUTION-MAKING:
The Environment







Existence of 1973 Decree curtailing freedom of
expression, association and assembly
Threat of re-introduction 60 day detention
Evictions of Macetjeni and kaMkhweli community
members
Police brutality
Rule of Law Crisis
Security force presence at civic education meetings
Impact of the land tenure system
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Critical Provisions
SEPARATION OF POWERS
The pervasive influence of the Kings powers in
the three arms of government severely
compromises the notion of separation of powers
which is a cardinal tenet of democracy:
A. THE JUDICIARY
- Chapter 2 of the Constitution avails immunities to the
King and Ngwenyama, Indlovukazi and Authorised
person from both civil and criminal proceedings.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Critical Provisions


The implication of this is that when the King’s name is
cited in any legal proceedings, whoever is seeking
redress cannot be able to obtain that redress.
In terms of section 151 (8), the High Court has been
stripped of its original and appellate jurisdiction over
certain listed matters which are purported to be
governed by Swazi law and Custom. It should be noted
that the Ingwenyma is the ultimate custodian of Swazi
Law and Cutsom.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Critical Provisions


The Judicial Service Commission advises the King on the
appointment of Judges and other members of the
Judicature. The King according to section 65 (4) may or
may not act in conformity with that advice. Which
literally mean the King may act alone in the appointment
of any office.
Section 78 provides for the setting up of a prerogative of
mercy committee which is a structure not seriously
intended if one looks at the provision that the committee
could be influenced by a non member and that will not
nullify proceedings. This could ultimately serve to
undermine the work of the judiciary
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Critical Provisions
B. THE EXECUTIVE



Section 64 (3) anticipates that the King may exercise the
Executive Authority directly. This could undermine the
ability of the Executive to deliver on its mandate.
The entrenched duality of structures who advises the
King and Ingwenyama yet are known to be in
competition, would serve to compromise the ability of
the executive to take decisions to further their
objectives.
Moreover there is a plethora of positions which are
supposed to be filled by the King ostensibly on the basis
of advice by one structure or another which we have
observed in terms of section 65, can be ignored by the
King.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Critical Provisions
C.




THE LEGISLATURE
According to the Constitution the King legislates through
Parliament, hence he cannot legislate in any other form.
However, in terms of section 108 the King is empowered
to withhold his assent to Bills, thereby giving him veto
powers.
The King has power to disband Parliament
Matters impinging on Swazi Law and Custom have been
removed from the competence of the popularly elected
House.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Amending the
Constitution


In accordance with this constitution, amendments is
almost impossible if that matter is listed as being
specially entrenched.
The King retains the quota of 30 appointees to both
Houses (20 Senate and 10 Assembly)
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: The Bill of Rights




There is an attempt to re-introduce the Bill of Rights in
the Constitution.
However, the Bill of Rights is severely derogated upon,
making it almost useless.
There are some major contradiction which also obtain.
For example, whilst the right to life is given and
subsequently derogated upon in section 15, section 38
on the other hand singles out the right to life as non
derogable.
Political, social and economic rights have been removed
from the Bill of Rights and have been shuffled away
under the directive principles of state policy and have
been made non enforceable.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: The Bill of Rights



The Constitution sets up a Human Rights
Commission, section 165 (3)(c), states that the
Commission shall not investigate a matter
related to the exercise of any Royal prerogative
by the crown
Section 169 of the constitution bars the
commission from investigating transgressions
authored by a Minister or question the policy of
government.
The absence of the right to information is quite
glaring for a country like Swaziland where
certain national budget lines such as the army
and the Swaziland National Treasury do not fall
for debate.
THE CONSTITUTION OF THE KINGDOM
OF SWAZILAND: Women’s Rights




Whilst there have been attempts at addressing this particular
area, these have not been convincing enough to warrant
excitement.
Section 28 of the Bill contains the right to equality with
subsection 3 stating that a woman shall not be compelled to
undergo or uphold a practice to which she is in conscience
opposed. The major limitation to this is that the onus is being
placed on the woman to identify the practice that she does not
want to undergo instead of the constitution simply making
unlawful or unconstitutional any custom that offence women.
Whereas section 211 purports to give land to all citizens
notwithstanding gender, the limitations come in when they say
that it is only for domestic purposes and exigencies are
anticipated.
Citizenship can still not be passed on by women to their children.
CONSTITUTION OF THE KINGDOM OF
SWAZILAND: Citizens’ participation



Entrenchment of the Tinkhundla system of governance.
Perpetuation of “individual merit” as the qualification for
political office thus undermining effect of political parties
contesting along party lines.
Oaths of office require “allegiance to the King, his heirs
and successors, not the Constitution or the nation.
SWAZILAND’S SOCIO-ECONOMIC
CHALLENGES
Background:
-High Poverty levels
-High HIV/AIDS Prevalence
-Sluggish Economic Growth
-High Rates of Unemployment
Lack of Fiscal Discipline

SOCIO-ECONOMIC
CHALLENGES: Poverty



69% of the country’s population lives below a $ a day
Skewed income distribution
Health and education systems falling apart
-health facilities run out of supplies
-Government can’t meet scholarship obligations on
tertiary education
-Social welfare is not working
SOCIO-ECONOMIC
CHALLENGES: Poverty




Poverty and crime-people are pushed to committing
crime because of socio-economic reasons
High crime rate deterrent to investment
Lack of disposable income
A crime free environment is desirable
SOCIO-ECONOMIC
CHALLENGES: HIV/ AIDS

Infection rates are on the increase
42.6% prevalence rate
Failure to meet social needs related to HIV/AIDS

Orphaned and Vulnerable children

Child headed households


SOCIO-ECONOMIC
CHALLENGES: Economic Growth




Growth has weakened since the early 1990s
Closure of big corporations in the late 1990s and early
2000
Frequent droughts and bad weather conditions continue
to compromise growth of the Agric. Sector
Developments on the sugar and textile and apparel
sectors
SOCIO-ECONOMIC
CHALLENGES: Unemployment




Rate of unemployment is estimated at 50%
Retrenchments began in 1997 and still continuing
Sugar sector, which is a major employer has imminent
retrenchments
Textile and Apparel sector to shed close to 25,000 jobs
as a result of phasing out of Multifibre agreement and
expiration of third country fabric provision in 2007
Lack of Fiscal Discipline





A growing fiscal deficit
Depletion of National Reserves
Corruption-laxity in dealing with culprits
Use of Public Funds without sanction by Parliament
Loopholes within the system
Provisions of the Constitution
Constitution entrenches the status quo
-Land rights: All land on SNL including concessions vest
with the king-rendering Swazis a land-less nation
- The issue of usage of SNL for business purposes is not
resolved-99 year lease bill still outstanding
- Essentially Swazis are economically disenfranchised

Socio-economic Rights


Non-justiciability of clauses 58-64-social, economic and
political rights
Downplaying the issue of land in Swaziland
HMK’s Tax Immunities



Section 10 exempts the King and His Civil List from
Paying taxes even on private activities and properties
they personally own
Not clear how civil list is determined-subject to abuse
A well known fact the king is a business person and this
will compromise Govt Revenue
Fiscal Discipline




Lack of transparency and accountability on the use of
public funds
IMF has sent warnings since late 1990s
Issue of Governance a major factor
Use of external reserves-currently our reserves can
barely cover 2 months imports-a situation that weakens
the country’s external viability
Budgetary Process




The process is not all inclusive-major stakeholders are
not involved
Expenditure not targeted to priority areas
Social sectors have been compromised, ie Education,
Health and Social Welfare
Right pronouncements on priority areas that are not
matched by the actual expenditure.
The Constitution and International
Standards
Swaziland is a member of the international community and also of
various organisations of states, e.g. United Nations; Commonwealth,
African Union; Southern African Development Community
Swaziland has signed and ratified various international
Instruments pertaining to standards of governance and human rights,
e.g. recent ratification of:




Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights
(ICESCR)
Convention Against Torture (CAT)
The Constitution and International
Standards
However, the question remains whether there exists the political will
to act in accordance with the various commitments made
internationally through domestication or at a minimum recognition in
the new constitution.

Political Rights
Recognised by: ICCPR, Commonwealth Harare Declaration, SADC
Treaty, SADC Guidelines and Principles on Democratic
Elections which all anticipate free political activity and contest as well
as the existence of political parties. However, in the Swaziland
constitution these rights are hardly recognised and the effect of the
existence of political parties is severely curtailed.
The Constitution and International
Standards

Women’s rights
CEDAW’s seeks the elimination of all forms of
discrimination against women. Swaziland’s
ratification means that at the very least, the State
must not act contrary to the spirit of the
Convention. However, in the Constitution which
has been passed after this ratification,
discrimination exists, e.g. with respect to the
passing of citizenship by a Swazi woman to her
children if their father is not a Swazi.
The Constitution and International
Standards

Civil society concern regarding international community’s
response to the adoption of the constitution is that while
the document is severely flawed and falls below the
minimum standards expected of a democratic state that
respects fundamental human rights and freedoms, in
some cases expressly violating these standards, it is
being praised as an achievement.
The Constitution and International
Standards
AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS
REPORT ON HUMAN RIGHTS IN SWAZILAND

Lawyers for Human Rights case challenging the 1973 Proclamation
to the Nation

The Commission’s findings were that Articles 1,7,10,11,13 and 26 of
the African Charter were violated by the Proclamation.

The new Constitution has not cured the deficiencies as regards the
country’s adherence to its obligations under the Charter.

The recommendations of the African Commission were ignored.
Where to From Here? The Way
Forward





actively engage government and include civil society
(using the existent Bilateral agreement between South
Africa and Swaziland);
promote dialogue (creating a forum for discussions
between the diverse parties in the country);
discourage the endorsement of the Constitution by
members of prominent institutions;
Assist in the diffusion of the threat of violence:
disgruntled groupings and continuation of militarization
of the state;
take a preventative approach to avoid implications of
Article 23 AU Constitutive Act regarding sanctions.