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UPDATE: THE LAW AND LEGAL RESEARCH IN SWAZILAND

 

By Buhle Dube and Alfred Magagula

 

Buhle Angelo Dube is a human rights lawyer who has previously worked with human rights and other non-governmental organizations in Swaziland holding varied positions such as Project Officer/Researcher. He holds a B.A. (Law), LL.B from the University of Swaziland and is currently pursuing a LLM in Human Rights and Democratization in Africa with the Centre for Human Rights (University of Pretoria). He is also a member on the Board of Trustees of the Centre for Minority Rights and Development Zimbabwe and the Centre for Human Rights and Development, Swaziland.

 

Alfred Sgcibelo Magagula is a member of the Centre for Human Rights and Development. He holds a student B.A. (Law) and LL.B degrees obtained from the University of Swaziland. He is working for an NGO in the HIV/AIDS sector. He has done research work with various consultancy firms in Swaziland before, and is a part-time researcher with Panacea Consulting.

 

Published June 2012
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Table of Contents

Introduction

Historical Overview

Sources of Swaziland Law

Constitution of Swaziland

The Legislature

Precedent

Common Law

Authoritative Texts

International Law

Customary Law

Royal Decrees

Subordinate Legislation

The Justice System in Swaziland

The Constitution and the Judiciary

Chapter outline of the Constitution

Chapter One – The Kingdom and its territory

Chapter Two – The Office of the King

Chapter Three – Fundamental Rights and Freedoms

Protection of the Right to Life

Protection of the Right to Personal Liberty

Protection from Slavery and Forced Labour

Protection of Women’s Rights

Chapter Four – Citizenship

Chapter Five – Directive Principles of State Policy

Chapter Six – Executive

Chapter Seven – Legislature

Chapter Eight – Judiciary

Infringement on Judicial Independence

Judicial Tenure and Remuneration

Removal of Judges from Office

The Supreme Court

The High Court

Magistrates’ Court

Specialist Courts in Swaziland

The Industrial Court

Swazi National Courts

Children’s Court

Legal aid

Civil Court Legal Aid

Legal Aid by Private Institutions

Law Reports

Government Gazettes

Law Schools

The Law Society of Swaziland

Public Service

Public Finance

Land, Minerals, water and the Environment

Local government

Traditional institutions

International Relations

Leadership code of conduct

Constitutional Amendment

Miscellaneous

Access to Information

Health

Civil Society

Trade Unions

Non-Governmental Organizations

Church

Media

Websites Visited

 

INTRODUCTION

The Kingdom of Swaziland is sandwiched between South Africa and Mozambique near the southeastern tip of Africa. It has a total area of some17, 400 km2 with the longest north south and east-west extremities 190 km and 130 km, respectively. Small as it is, Swaziland has four major climatic regions, and the first three being of roughly equal breadth. The four regions extend north and south and are known as the high, middle, and lowveld, and the Lebombo plain and escarpment. The Highveld on the west has an average altitude of 1,050 m to 1,200 m (3445 to 3,937 ft). The middleveld averages about 450 to 600 m (1,476 to 1,969 ft), and the low or bushveld less than 300 m (984 ft). The Lebombo plain, at an average height of 610 m (2,000 ft), extends to the Lebombo escarpment, which is part of the Lebombo Mountains in the east. The entire country is traversed by rivers or streams, making it one of the best-watered areas in southern Africa. The longest river is the Great Usutu, which stretches roughly from west to east across the centre of the country for a total distance of 217 km (135 mi).

 

The Highveld has a humid near-temperate climate with about 140 cm (55 in) of mean annual rainfall. The middleveld is subtropical and somewhat drier, with about 85 cm (33 in) of annual rainfall; the lowveld, almost tropical, is sub-humid, receiving about 60 cm (24 in) of rain in an average year. Rainfall tends to be concentrated in a few violent storms in the summer (October–March). Temperatures range from as low as -3°c (27°f) in winter in the highlands to as high as 42°c (108°f) in summer in the lowlands. At Mbabane, temperatures average 20°c (68°f) in January and 12°c (54°f) in July.

 

The population of Swaziland in 2005 was estimated by the United Nations (UN) at 1,138,000, which placed it at number 150 in population among the 193 nations of the world. In 2005, approximately 3% of the population was over 65 years of age, with another 43% of the population under 15 years of age. There were 93 males for every 100 females in the country. According to the UN, the annual population rate of change for 2005–2010 was expected to be 0.3%, a rate the government viewed as too high. The projected population for the year 2025 was 1,009,000. The population density was 66 per sq km (170 per sq mi). The last population census took place in 1997. It indicated a total resident population of 929,718, or a growth of 2.9% compared with the 1986 census.

Like other parts of southern Africa, Swaziland was originally occupied by hunting and gathering peoples known as Bushmen. In the 16th century, according to tradition, Bantu-speaking peoples advanced southwest to what is now Mozambique. During the migration, these groups disintegrated to form the various ethnic groups of southern Africa. In fact, however, the Swazi do not appear to have broken away from the main body of the Bantu until the middle of the 18th century. The Swazi emerged as a distinct ethnic group at the beginning of the 19th century and were in constant conflict with the Zulu; they moved gradually northward and made their first formal contact with the British in the 1840s, when their ruler, Mswati II, applied to the British for help against the Zulu. The British succeeded in improving relations between the two ethnic groups.

 

About this time, the first Europeans came to Swaziland to settle. The independence of Swaziland was guaranteed by the British and Transvaal governments in 1881 and 1884, but owing to the excessive number of concessions (including land, grazing, and mineral rights) granted to European entrepreneurs by Mbandzeni (the king) during the 1880s, the United Kingdom decided some form of control was necessary. In 1890, a provisional government was established, representing the Swazi, the British, and the Transvaal. From 1894 to 1899, the Transvaal government undertook the protection and administration of Swaziland. After the South African (Boer) War of 1899–1902, the administration of Swaziland was transferred to the British governor of the Transvaal. An order in council established the relationship between the Swazi and the United Kingdom in 1903, providing the basic authority under which British administration was conducted for 60 years.

 

Responsibility for Swaziland was transferred in 1907 to the high commissioner for South Africa. An elected European Advisory Council was constituted in 1921. By the provisions of the Native Administration Proclamation of 1941, the position of the Ngwenyama (paramount chief) as native authority was recognized. In 1963, constitutional discussions looking toward independence were opened in London. The following year, elections for a legislative council were held under the country's first constitution. After further constitutional talks, held in London in 1965, Swaziland became an independent nation within the Commonwealth.

The country’s leadership is a hereditary kingship. The country is a former British Protectorate, which became independent on 6 September 1968. It had a Westminster-style constitution, which was repealed in 1973 by a Royal Proclamation of the former King, Sobhuza II, who did so on the basis that it had encouraged alien and divisive political practices incompatible with the Swazi way of life. The constitutional structure comprises the King, the Queen Mother, traditional implementing and advisory agencies such as the Libandla and the Liqoqo, Parliament and a system of common law and traditional courts.

 

The King is the head of state but also has executive, legislative and judicial powers. He rules according to (unwritten) Swazi custom on the advice of numerous princes and the traditional advisory agencies. The Queen Mother is also highly influential and is second only to the King in the political hierarchy. She holds an important executive and moral position as under Swazi custom the King must always be guided by her. The Dlamini clan is the ruling dynasty, with support from other clans who together contribute a fair percentage of the country’s total population. The Swazi monarchy is supported by a network of chiefdoms, some of which are characterised by serious internal squabbles due to problems of succession. These chiefdoms form the bedrock of Swazi traditional authority.

 

Swaziland received independence from Great Britain in September 1968.Swaziland was a British Protectorate from the early-1900s, with Britain’s colonial government allowing Swaziland’s traditional practices and institutions to exist side by side with modern systems. All traditional and customary matters fell within the jurisdiction of the Ngwenyama (Lion), or the paramount chief, as the British preferred to call him. This meant that at independence Swaziland inherited a dual system, both legally and politically. The Swazi king, as the political figurehead of the Swazi nation through its chiefdoms, occupied a strong presence in the traditional sector of Swazi politics, and was able to resist the political party democratic arrangement Britain had intended when it handed over sovereign authority to the Swazi nation. During the run-up to independence, political parties had the backing of the British Colonial Office, but they were disregarded by the traditional Swazi ruling aristocracy.

 

Swaziland received its independence on a multiparty platform, with a Westminster-type constitution and a parliamentary democracy. The Swazi king had been advised to form his own party. Reluctantly, he established the Imbokodvo National Movement (INM), which was to prove invincible mainly because of his own presence as well as of those closest to the monarchy. The INM ruled without opposition for the first five years of independence, during which there was no talk of abolishing party politics. The 1972 election, however, ushered in the death of democracy. When the NNLC won three seats in the eastern sugar-belt, the INM refused to accept the prospect of an opposition in parliament, and regarded this victory as an affront to the king’s authority and image. After failing in its court challenge to the citizenship of one of the Ngwane National Liberation Congress (NNLC) members, Bhekindlela Ngwenya, the INM decided to attempt to repeal the independence constitution and to ban all political party activity in Swaziland.

 

The repeal of the independence constitution was achieved on 12 April 1973 in what some scholars best described it as a ‘royal coup of the Swazi parliament’. As a result, the Swazi king accorded all legislative, executive and judicial powers to himself. The year 1973 was the watershed for political party democracy in Swaziland. The operations of these movements are pronounced, unpredictable and probably an unnecessary nuisance to the state. After 1973 more parties were founded, indicating that there was a popular objection to the king’s rejection of the independence constitution in that year. PUDEMO and the NNLC are amongst the parties formed at that time. The third organisation, SS (Sive Siyinqaba or Sibahle Sinje) is a cultural formation that vowed on its launch in 1996 that it would talk political matters.

 

Whereas PUDEMO and the NNLC espouse respectively socialist and pan-African ideologies, SS is more sympathetic to Swaziland’s cultural heritage and, as such, protective of the Swazi monarchy. In one sense the cultural organisation poses as a neo-INM with a rather open mind to facilitate changes where such are necessary’ to some aspects of the Swazi heritage. In another sense, it has its eyes more focused on political power and influence than on mere cultural practices. Members of SS are by design found in both houses of parliament, where they are providing effective checks and balances to the operations of government. In 2003, SS declared that it wanted to occupy all the seats in parliament at the next election. There are enough indications that SS is a political party in waiting. Using various means, the Swazi ruling aristocracy seems to have succeeded in demonising party politics over the years. One of its approaches was to contrast parties with the majesty of the king, as though both could not exist in the same political environment. Given such a dubious choice, the majority of Swazis opted for the monarchy.

 

HISTORICAL OVERVIEW OF THE KINGSHIP POSITION

Historically, the king was viewed as his people's mouthpiece, neither an absolute monarch nor a dictator. For more than five decades whilst still under colonial rule, Swaziland was administered through a system of native authorities. During this time, the king was a paramount chief exercising indirect rule over the Swazi nation. Through this system of governance, the royal family managed to slowly build authority over the allocation of land, particularly tribal land (Swazi nation land) which it still administers today through a system of chieftainship. Gradually this pre-colonial perception of the monarch eroded as it began to view itself as an institution that is above accountability and one that derived its power from God.

 

During colonial times, Sobhuza II was initially paramount chief and later king of Swaziland from 1921 to 1982 when he died. Much of this transformation took place during his lengthy reign. King Sobhuza was forced to form his own political party in 1964, despite his resentment of political parties. King Sobhuza and his clique viewed political parties as direct threats to his authority, ‘unSwazi’ and foreign elements that led to bad governance, rendering the country ungovernable. The Imbokodvo National Movement (IMN) was formed due to mounting political pressure from other political formations coupled with King Sobhuza’s failure to win independence from the British based on a purely monarchical system. Interestingly to this day, under the reign of King Mswati III, Sobhuza’s successor, political parties are still frowned upon in Swaziland. Hence, most politicians believe that democracy and political parties are foreign concepts that cannot be tolerated; but when pushed further, some claim that there is one political party in existence, which represents the interests of all the Swazi people. This party is the royalist INM.

 

Political parties were pivotal in the push for an independent Swaziland. These parties called for independence, universal adult suffrage, and a constitutional monarchy with limited powers. In the pre-independence elections of 1964 and 1967, the royalist INM was victorious, winning all 24 seats in the new national assembly. Since the Dlamini aristocracy (the dominant Swazi clan) monopolised the assembly, and legislation required the King's approval, the monarch was de facto in charge of the government.

 

After a four-year period of limited self-rule, Swaziland gained independence on 6 September 1968 and inherited a Westminster-model parliamentary system that provided for a constitutional monarchy, a prime minister and multi-party politics. The British also left Swaziland with a dual legal system comprising Roman-Dutch law and customary law in which rural constituencies under the control of hereditary chiefs reported directly to the King. This dual legal system still exists in Swaziland today.

 

HISTORICAL BACKGROUND

At independence, Swaziland saw the establishment of a parliamentary multiparty system. In reality however, this system was dominated by a political creation of the Dlaminis’ clan, the Imbokodvo National movement (INM). In the elections of 1962 and 1967, the INM won all the seats. The next few years would see King Sobhuza II out-manoeuvre a relatively small group of modernists who sought to reduce the role of the king to that of a constitutional monarch or figurehead. In the elections of 1972, the INM’s parliamentary majority was breached when three of seats were lost to the opposition. This meant that the INM (and by implication the King) could not amend the Constitution and pass new legislation unopposed. While the INM and the King sought to overturn this election result in a long and drawn out court battle, these attempts proved unsuccessful. It is widely accepted that it was this defeat and the fear of losing power that ultimately led the late King Sobhuza II, during April 1973, to suspend the constitution. The King proclaimed:

 

ü  that the Constitution has failed to provide the machinery for good government and for the maintenance of peace and order;

ü  that the Constitution is indeed the cause of growing unrest, insecurity, dissatisfaction with the state of affairs in our country and an impediment to free and progressive development in all spheres of life;

ü  that the Constitution has permitted the introduction into Swaziland of highly undesirable political practices alien to, and incompatible with, the Swazi way of life; these practices were seen by the King as designed to disrupt and destroy Swazi’s peaceful, constructive and essentially democratic methods of political activity. Sobhuza considered that this engendered hostility, bitterness and unrest.

 

The Swazi monarch then assumed all executive powers previously granted by the constitution to the Prime Minister and the Cabinet. From that day onwards, the King has been able to act wholly in his own discretion, consulting whomsoever he wishes, not bound by law. The decree quoted above gave him the power to detain without charge, and for a renewable sixty days, any person deemed to be a threat to public peace. In addition, the courts lost all jurisdictions to deal with cases of detention. In reality, Sobhuza II ‘killed’ the Bill of Rights together with provisions on citizenship, Parliament and the judicial and public service. Political parties were banned, and meetings of a political nature, including processions and demonstrations, had to be authorised by the Commissioner of the Police. This spelled the end of political freedom in Swaziland. Traditional sentiments triumphed over modern political initiatives granted under a Parliamentary democratic constitutional arrangement. From 1973 to 1978, Sobhuza II ruled without an elected Parliament, making laws by decree, when the Tinkhundla system of Government was first put in place as an experiment.

 

THE DEMISE OF DEMOCRACY AND THE CONSOLIDATION OF AUTOCRACY (1968-1986)

The first government of King Sobhuza II was headed by a member of the royal family, Prime Minister Prince Makhosini Dlamini, the leader of the Imbokodvo National Movement (INM); the cabinet consisted overwhelmingly of aristocrats, while a white finance minister reflected settler interests and some members of the cabinet were businessmen or professionals (Levin 1997, 84). The government thus largely reflected the power that had been accumulated by the monarchy and the traditional aristocracy and excluded the growing middle and working classes that had voted for the opposition and the peasants who had provided the INM with its overwhelming victory (Booth 1983, 65). At independence, Swaziland joined the UN, the Commonwealth and the Organisation of African Unity (OAU). Throughout the Cold War Swaziland allied itself with the West and had close ties with the USA and the UK and maintained diplomatic relations with Israel and Taiwan, receiving development aid from those countries (Macmillan & Levin 2007, 1159).

The choice of a white as minister of finance was aimed at soothing the fears of foreign investors, who were wooed by the King and senior INM politicians in the run-up to Independence and the stable climate in the period that followed investment flows continued, primarily from South Africa (Levin 1997, 84; Macmillan & Levin 2007, 1155). Between 1977 and 1982, real GDP grew by an average of 3% per year (McLoughlin & Mehra 1988, 661). Economic growth was bought at the price of restricted room for political and economic manoeuvre because of the dominance of South Africa in the Customs Union and South African capital in the economy (Macmillan & Levin 2007, 1155). Inflation trends followed those in South Africa, with consumer prices rising by an average of 12% per year between 1979 and 1984 (McLoughlin & Mehra 1988, 669).

Labour policy after independence continued to privilege the interests of industry owners over those of workers, for union activity remained tightly controlled, the grievance (indvuna) system that had resulted in the 1963 strikes was reintroduced and state-established wage boards were dominated by government and management (Levin 1997, 89). Workers' bargaining power was further eroded as population growth and urbanisation led to ever-increasing levels of unemployment (Booth 1983, 72). The number of registered unions declined from 15 to nine; employers preferred to work through works councils, while the aristocracy favoured the indvuna system and the state discouraged trade unionism (Levin 1997, 87, 88; Macmillan 1989, 306, 307). As a result, "Between 1969 and 1972 the real living standards of the working class declined significantly. More than half of the labour force was faced with constant or declining money wages. (Levin 1997, 95).

The government followed an aggressive policy of Africanisation in the public and private sectors and, concomitant to that, expanded the educational system rapidly, to broaden its support in the middle classes (Booth 1983, 70; Levin 1997, 94). The government announced in 1970 that it had achieved 85% of its goals in terms of indigenisation of the public sector (Booth 1983, 70). New schools were built and teacher training was increased (Booth 1983, 58). Between 1968 and 1980 the number of primary schools increased by 26%, while the number of secondary schools increased by 165% in the same period (Booth 1983, 57). Child enrolment at primary schools expanded by 80% in this time and secondary school enrolment by 165% (Booth 1983, 57; Levin 1997, 94).Primary teacher employment increased by 102% and secondary by 457% (Booth 1983, 57). In 1973, the University College of Swaziland opened (Booth 1983, 56). The policy of Africanisation and educational expansion led to declines in standards in the civil service and examination pass rates for students (Booth 1983, 58, 70). Even so, the growth of the education sector could not keep pace with population growth (Booth 1983, 58).

In August 1968 Sobhuza issued a royal charter establishing Tibiyo Taka Ngwane to manage the investment of earnings from mineral rights invested in the King 'in trust for the nation', which became, with Tisuka Taka Ngwane, a tool for large scale domestic capital formation and the enrichment of the ruling elite, especially the royal family (Levin 1997, 86; Macmillan & Levin 2007, 1155; Macmillan 1985, 664). The income from mineral rights was augmented by loans facilitated by the UN and the Commonwealth and used in joint ventures, share acquisitions and land purchases to create ventures that were run as private firms (Levin 1997, 85, 86; Macmillan 1989, 306, 307). The operations of Tibiyo Taka Ngwane were not made accountable to Parliament and were not open to public scrutiny (Levin 1997, 86). In 1971, the National Industrial Development Corporation of Swaziland (NIDCS) was established to attract foreign investment and accelerate industrial development (Levin 1997, 95).

The issue of land was a major post-independence priority, since at that point only 56% of the land was held "in trust for the nation" by the King (Booth 1983, 31, 65). A continual grievance, unresolved as yet, was the loss of huge tracts Swazi territory to the Boers in the 19th century, which later became part of South Africa (Booth 1983, 70). Europeans owned almost all of the title deed land, the most productive and best developed part of the country, and the selling prices for this land was greatly inflated by speculative activities (Booth 1983, 71; Levin 1997, 94). The British government refused to finance the repurchase of the land (Booth 1983, 71). The Land Speculation Control Act of 1972 attempted to make this land available for Swazi purchase by bringing down the prices through control measures that included a control board to govern land sales to non-Swazi citizens and the confiscation of the portion of a land sale regarded as the result of speculation (Levin 1997, 94; Booth 1983, 71). The settlers vigorously opposed the measures since they threatened a collapse in land values in the short term and increased the risks involved in capital investment for future economic development over the longer term (Booth 1983, 71).

These fears did not materialise since the Land Control Board did not hamper sales to foreign investors and capital continued to flow in, but it did not benefit the land-hungry peasantry, who still could not afford to buy land, but rather Tibiyo Taka Ngwane and small numbers of Swazi capitalist farmers (Booth 1983, 71; Levin 1997, 86, 94). By 1983 Swazi Nation Land formed about 60% of all land, 23% was owned by government ministries or Tibiyo Taka Ngwane and 17% was in foreign hands (Booth 1983, 91). Since the bulk of the population was rural and concentrated on the Swazi Nation Land, in 1970 the Rural Development Areas Programme was initiated to improve the income of peasants on Swazi National Land by adding elements of commercial production to subsistence farming, with financial aid from Britain, the World Bank and other donors (Levin 1997, 124, 126). Despite large investments only marginal gains were made at very high costs and the project wound down in 1984 (Levin 1997, 127 Booth 1983, 70).

In the year proceeding the 1972 election the opposition Ngwane National Liberatory Congress (NNLC) split over plans to centralise leadership and make Dr Ambrose Zwane president for life, but Zwane managed to gain control over the main faction (Booth 1983, 70; Levin 1997, 95). Tensions also emerged within the ruling INM between modernisers and traditionalists (Booth 1983, 70). The elections were won by the INM who took 21 seats, but the Mpumalanga constituency, with its high numbers of farm workers, small farmers and middle class voters, was won by the Zwane faction of the NNLC, which gave them the remaining three seats (Levin 1997, 96; Booth 1983, 72, 73. See May 1972 General Election for more detail). As economic growth would see the rise of these classes as a proportion of voters in the future, this outcome was regarded as a threat to the long term power of the monarchy and hegemony of the aristocracy; the hostility of Sobhuza to multi-party democracy, mollified by overwhelming victory of the INM in 1967, was revived (see 1967 Pre-independence General Election) (Booth 1983, 72, 73).

On 25 May, five days after the election, an NNLC Member of Parliament was served with an order of deportation, as an undesirable alien, and matters were quickly escalated into a full-scale constitutional crisis (Levin 1997, 96; Booth 1983, 73; Macmillan 1989, 307, 308). In the High Court, the NNLC obtained an order declaring him a citizen, so Parliament passed an amendment in November creating a Tribunal through which his citizenship was revoked, but the Appeal Court declared the amendment unconstitutional (Levin 1997, 96, 97; Booth 1983, 73; Macmillan 1989, 307, 308). On 12 April 1973, over the protests of the NNLC, Parliament passed a motion that "called on the king to devise ways and means of dealing with the crisis" (Levin 1997, 100) and then members decamped to the royal palace at Lobomba (Levin 1997, 100; Macmillan 1985, 665; Proctor 1973, 287). There Sobhuza met them and granted their request by suspending the constitution, dismissing Parliament and assuming all power, legislative, executive and judicial (Booth 1983, 73; Levin 1997, 100; Proctor 1973, 287). He furthermore proclaimed that he would rule by decree in council with the cabinet and that all political parties, meetings and public activities were banned (Booth 1983, 73; Levin 1997, 100).

A decree was issued providing for a 60-day detention without trial, renewable as frequently "as deemed necessary in the public interest" (Levin 1997, 100. A further decree settled the citizenship issue: Citizenship could be acquired only by allegiance to a chief (ukukhonta), thus "hardening the distinction between the Swazi of Swaziland and the Swazi of South Africa, and increased the insecurity of people of marginal status" (Macmillan 1989, 307, 308)). This was followed by the detention of four of the leaders of the NNLC, including Zwane, who was then forced into exile and allowed to return on condition that he abjure politics (Booth 1983, 73; Levin 1997, 105, 147). In the period that followed opposition, leaders were co-opted, silenced or forced into exile (Booth 1983, 74). The elimination of political opposition led to industrial and social unrest. A march by striking railway workers in 1975 was broken up with tear gas by police, a dispute over teachers' salaries in October 1977 led to student boycotts and riots that were suppressed by riot police and mass arrests, as was a violent strike by sugar workers in 1978 (Booth 1983, 75).

Nevertheless, having neutralised the NNLC and removed all vehicles of public participation in political life, the monarchy was free to mould the constitutional order more to its liking (Levin 1997, 147, 105). In the meanwhile, "the state became increasingly centralised and undemocratic. State power became personalised, centering on King Sobhuza II who came to occupy a special place in the hearts and minds of most Swazis" (Levin 1997, 103). A constitutional commission was appointed by the King in September 1973, packed with members of the government and the aristocracy, which finally returned its report five years later (Booth 1983, 76; Levin 1997, 105). Its recommendations were enshrined in the 1978 "Establishment of the Parliament of Swaziland" King's Order-in-Council (Levin 1997, 104, 107). The order established resembled that of the suspended constitution except that political parties were to remain banned and the members of the House of Assembly would be indirectly elected; at tinkhundla level voters would elect delegates to a an electoral college that would elect members to the House of Assembly and Senate from among themselves in secret (Levin 1997, 107; Booth 1983, 76; Macmillan 1985, 665). The process was to be overseen by an electoral committee appointed by the King, candidates were vetted by the King and were not permitted to campaign and voting was public and not secret (Levin 1997, 107; Booth 1983, 76). Parliament's role was limited to debating government proposals and advising the king. (Booth 1983, 76). Subsequently, an election was held in terms of this system See Tinkhundla elections, 1978-1993 for more information). Macmillan & Levin (2007, 1156) observe that by King Sobhuza's diamond jubilee in 1981 his authority was absolute.

Relations with South Africa proved to be difficult for Sobhuza and his successors after Mozambique's independence in 1975 as the royal family had to balance its traditional sympathy for the banned African National Congress of South Africa (ANC) with the overwhelming economic and military power of apartheid South Africa. In 1977, after a meeting between Sobhuza and ANC president Oliver Tambo, the ANC was permitted to establish a low-key diplomatic presence and by 1979 Swaziland had become a major corridor for smuggling guerrillas between South Africa and Mozambique and back again (Levin 1997, 169). These activities worried Swazi functionaries and the ANC was placed under pressure to reduce its operations (Levin 1997, 169). Nevertheless, Swaziland sought closer ties with the frontline states, joined the Southern African Development Coordination Conference and aligned its stances with those of the OAU (Levin 1997, 168).

This provoked the wrath of the South African government, and along with other states in the region, Swaziland became the target of military and clandestine operations, beginning in June 1980 when South African agents bombed two ANC houses in Manzini and followed by a kidnapping in February 1981, an ambush in December 1981 and a landmine operation in 1982 (Booth 1983, 117, 118; Levin 1997, 169). Under these conditions, the Swazis were forced to review their position and come to terms with South Africa. South African military pressure was accompanied by offering Swaziland a deal by which Swaziland would receive South African territory in exchange for signing a security pact, which was undertaken in February 1982, but only implemented with earnest after the King's death (Levin 1997, 170; Macmillan & Levin 2007, 1160).

King Sobhuza II died on 21 August 1982 and his death signalled the revival of another traditional Swazi custom that of jockeying for positions of wealth and power amongst the ruling elite during the period of the regency (Macmillan & Levin 2007, 1156; Levin 1997, 148). Sobhuza had designated Queen Dzeliwe as regent with support of a 16 member Liqoqo (National Council) and Prince Sozisa as the "authorised person" to represent her before it (Booth 1983, 78). The factions involved in the Byzantine power struggle that ensued revolved around personal issues and cut across corporate centres of power (Levin 1997, 148). In March 1983, as a result of struggles within the inner circles of the ruling elite the Prime Minister, Prince Mabandla, was reluctantly dismissed from office by Queen Dzeliwe under pressure from members of the liqoqo; she in turn, because of her reluctance, was ousted in August by Prince Sozisa and replaced by the mother of Prince Makhosetive, Queen Ntfombi, and Makhosetive was also designated heir to the throne by the liqoqo (Levin 1997, 150, 152-156; Macmillan & Levin 2007, 1156).

The supporters of Mabandla and Dzeliwe were purged from all organs of state and signs of popular unrest suppressed through detentions, but conflict within the elite and social unrest continued leading to a purge of the cabinet in June 1984 and retaliatory accusations of financial misappropriation against members of the Liqoqo (Levin 1997, 157-162). In August 1984, Sozisa was suspended as Authorised Person and more arrests followed, but in June 1985, a mass march of members of the royal family on parliament was held to protest against the actions of the Liqoqo (Levin 1997, 162-164). As a result of the protest the liqoqo was purged and was downgraded to an advisory body, its opponents were released from detention and key members that had been removed were then brought to trial (Levin 1997, 165-166; Macmillan & Levin 2007, 1156).

The unseemly power struggle within the ruling elite, and popular perception of endemic corruption in the highest circles of state, dissipated the aura that Sobhuza had built up around the monarchy, which would, in any case, have been difficult to sustain, built as it was on his charisma and legitimated by the personality cult around him (Levin 1997, 110). In the middle of 1983 students, intellectuals and trade unionist assembled to form a loose coalition of popular organisations, the People's United Democratic Movement (PUDEMO) (Levin 1997, 181). In August, pamphlets appeared denouncing the dismissal of Queen Dzeliwe and student led protest marches occurred (Levin 1997, 197). In August 1984 at the University of Swaziland, the detention of the members of the Students' Representative Council led to boycotts that escalated into conflict between the University Council and the cabinet over how the students were to be dealt with (Levin 1997, 197-199). On 1 January 1985 PUDEMO was launched clandestinely, an Executive Committee was elected and a People's Manifesto, reminiscent of the ANC's Freedom Charter was adopted (Levin 1997, 195-197).

In June 1982, the South African government announced that the KaNgwane apartheid Swazi ethnic "homeland" would be reincorporated into Swaziland (Booth 1983, 119-121; Macmillan 1989, 289). This was a strip of land on the along Swaziland's west and northern borders with a population of 250 000 people, almost half of whom had been forcibly moved there, and no economic base. Also to be transferred was the Ngwavuma district of northern Natal which had a population of about 135 000, mainly Tsonga people (Booth 1983, 119-121; Macmillan 1989, 289). The purpose was to denationalise black South Africans in furtherance of the apartheid policy, to obtain Swazi complicity in this and to create a greater Swazi buffer zone along major ANC infiltration routes from Mozambique. In September 1982, the Appeal Court of South Africa blocked the transfer of Ngwavuma and in the end; the South African government withdrew the offer (Booth 1983, 119-121; Macmillan & Levin 2007, 1160).

In December 1982, the Swazi government arrested about 40 ANC members at placed them in detention (Booth 1983, 117, 118; Macmillan & Levin 2007, 1160). In March 1984, following the Nkomati Accord between South Africa and Mozambique, the secret security pact of Swaziland with South Africa was made public and an earnest attempt was made to suppress the activities of the ANC in Swaziland (Macmillan & Levin 2007, 1160). More than 400 ANC members were detained and gun battles in April between ANC cadres and Swazi security forces broke out that, in the words of Levin (1997, 171), "resembled a small scale war". The ANC in Swaziland went underground and regrouped and during 1985 was able to establish an extensive network in the country (Macmillan & Levin 2007, 1160; Levin 1997, 175).

PARTY POLITICS SINCE 1973

The major reasons for the repeal in April 1973 of the independence constitution was the threat posed by the major opposition of the time, the NNLC. King Sobhuza II may have looked ahead while remembering the words of the British resident commissioner, who had said that if the king’s party lost an election in the future, the king’s position would be in jeopardy. While the commissioner was warning the king against aligning himself with a particular political party, the king could not accept that there could be any political innovation in Swaziland without himself in the driving seat. Traditionalists would expect him to lead the change at all costs. The constitution ‘created by ourselves for ourselves in complete liberty’ from foreign pressures was to be stage-managed by the king and to derive its legitimacy from tradition, which was the only canon that would guide its direction. In the same year that he repealed the independence constitution, the king set up a Royal CRC, with members and terms of reference of his own choosing.

 

The terms of reference, according to Hilda Kuper, were:

‘To enquire into the fundamental principles on which the Kingdom of Swaziland’s Constitution should be based, having regard to the history, the culture, the way of life of the people of Swaziland, and the need to harmonise these with the modern principles of constitutional and international law.’29, 30 This commission did not present a formal written report, although it may only be speculated that its findings formed the basis of the 1978 Establishment of Parliament Order and the 1978 Regional Councils Order. The type of government established by the 1978 order was the Tinkhundla system. The philosophy of Tinkhundla assumed that as each Inkhundla was a conglomeration of several chiefdoms, political debate could be held and developmental concerns could be addressed at grassroots level, involving every citizen under that Inkhundla. In a 1981 proclamation, the king noted that national government ‘shall be based on the Tinkhundla system’ and that Swaziland ‘shall continue to be a non-party state’.

 

Tinkhundla was thus crafted by the Swazi monarch as an alternative to a political party regime. After the Tinkhundla system had been introduced by royal decree, it was legitimised through carefully designed national consultations in which the reality and power of the Ngwenyama and king were contrasted with the loose structure of political parties, whose major objective was to challenge the autonomy and largesse of the Swazi king. Each of the two constitutional review commissions, the TRC and the CRC, recommended against the re-establishment of political parties.32 However, it is important to point out that both the TRC and the CRC were openly boycotted by the country’s progressive movements, especially the vocal and visible Pudemo and its youth wing, SWAYOCO. Although a founding member of Pudemo was appointed to the TRC by the king, this member declined the appointment. While he cited ‘personal reasons’, it was well known that Pudemo had called for the repeal of the king’s 1973 proclamation before any meaningful constitutional discussions could be held.

 

Furthermore, the terms of reference of the TRC did not allow for group submissions. This cycle of denial of group representation was again repeated when the CRC was set up. Therefore, although, again, the president of Pudemo was appointed to the CRC by the king, the Pudemo representative declined the appointment because he would not be allowed to represent the official views of his party. The Constitution Drafting Committee, whose mandate extended to receiving people’s views and encouraging debate on the draft constitution released in May 2003, was therefore able to report, on 4 October 2004, that the majority of Swazis were not in favour of political parties.

 

Section 79 of the 2005 Constitution of Swaziland Bill includes the words:

‘The system of government for Swaziland is a democratic, participatory, Tinkhundla-based system which emphasises [both] devolution of state power from central government to Tinkhundla areas and individual merit as a basis for election or appointment to public office.’ This section consolidates the wishes of the ruling aristocracy and completes the ideological onslaught on political party activity in Swaziland. The section was not debated by parliament, whose membership includes individuals who strongly believe in multiparty democracy.34 The bill went through both houses of parliament and was eventually signed into law after a handful of significant changes initiated by the king were incorporated without much ado from the legislature. The power and autonomy of parliament cannot be defined outside the direct control and manipulation of royalty, a legacy of the 12 April 1973 king’s decrees.

 

THE GROWTH AND WANING POWER OF THE UNDERGROUND MOVEMENTS: SEARCH FOR ALTERNATIVES

Decrees 11, 12 and 13 of 1973 were designed to outlaw political parties in Swaziland. They read as follows:

11.   All political parties and similar bodies that cultivate and bring about disturbances and ill-feelings within the Nation are hereby dissolved and prohibited.35

12.  No meeting of a political nature and no procession or demonstration shall be held or take place in any public place unless with the prior written consent of the Commissioner of Police; and consent shall not be given if the Commissioner of Police has reason to believe that such meeting, procession or demonstration, is directly or indirectly related to political movements or the riotous assemblies which may disturb the peace or otherwise disturb the maintenance of law and order.

13.  Any person who forms or attempts or conspires to form apolitical party or who organises or participates in any way in any meeting, procession or demonstration in contravention of this decree shall be guilty of an offence and liable, on conviction, to imprisonment not exceeding six months.

 

Although when he repealed the constitution in 1973, the king acted outside the law, there was no judicial challenge to his actions. Wanda notes that the legality of the king’s action in repealing the Constitution, prompted and fuelled by a resolution of Parliament, is questionable. The issue was never brought to the courts for a more reflective and objective legal opinion.

The reason for this was that the 1973 decree also had a provision for the detention without charge of any person in the public interest for a renewable period of 60 days. The detention was determined by the king-in-council and was not challengeable in any court of law. The NNLC immediately went underground as its founding president, Dr Ambrose Phesheya Zwane, suffered a series of detentions. Zwane eventually escaped from the country and sought exile in Tanzania. The intervention of the then Tanzanian president, Julius Nyerere, resulted in a royal pardon and his return to Swaziland on condition that he agreed ‘to abide by the laws of the country and never make any political party agitation’.

 

As a result, the NNLC lost its zeal as an effective opposition for the ten years after 1973, during which time the Swazi masses had no political voice. PUDEMO was formed on 6 July 1983 by young university and high school students in response to the anarchy that followed the death of King SobhuzaII. The power of the Liqoqo regime was such that in 1983 it was able to depose the legitimate Queen Regent, Dzeliwe Shongwe, on the grounds that she refused to endorse the sweeping changes Liqoqo was making to the state machinery. Some members of the banned NNLC were instrumental in the founding of Pudemo. The siSwati name for Pudemo was InsikaYenkhululeko YemaSwati (the Swazi People’s Pillar of Freedom). When PUDEMO was launched on 1 January 1985, it already had a ‘Working Constitution’, a ‘Programme of Action’, and a ‘People’s Manifesto’.

Espousing a social democratic agenda, its manifesto states:

‘As a democratic movement we are fully dedicated to creating a democratic Swaziland by giving power to the people and to bringing oppression and exploitation, nepotism and political favouritism and the growing fascism to an end.’

 

It is historically correct that the formation of Pudemo was precipitated by the factional fighting in the royal palace, and especially the role of Liqoqo. It is significant to note that the founding members of Pudemo were students and members of the intelligentsia and the working class. Mass protests against the Liqoqo system of governance and the quick response of state machinery to condemn Pudemo by rounding up its key leaders, resulted in the popularisation of Pudemo when such a voice was much needed. Realising that the power of Pudemo was centred at the Kwaluseni campus of the University of Swaziland, the Liqoqo regime infiltrated student politics by sponsoring a visit by six non-students’ representative council (SRC) members to Kenya to study student movements in that country under the guidance of the Kenya government. The major aim of Liqoqo was to set up an alternative SRC that would be pro-state and opposed to the demonstrations against the policies and operations of Liqoqo. The scheme did not see the light of day as the official SRC challenged the legitimacy of the six students to represent students’ interests. At the end of August 1984, the SRC declared the six students dissidents, sparking off a series of confrontations on campus.

 

Liqoqo also attempted to form a Swaziland National Association of students as an alternative to the Swaziland National Union of Students. Meanwhile the university’s autonomy as a centre of learning was greatly compromised when Liqoqo began a witch-hunt for Pudemo supporters among teachers, administrators and students. By 1989, PUDEMO’s resistance was growing by leaps and bounds due to the perceived failure of the young king to return democracy to the Swazis following his coronation. In a 1989 message to the nation, Pudemo said:

‘Pudemo… is this year marking its fifth year in the struggle against the oppression of our people by an undemocratic and autocratic monarch. In this regard, it should be well understood that PUDEMO was not born for the sole purpose of fighting the Mfanasibili/Liqoqo regime but to fight all forms of oppression at all levels of our society… the objective conditions, which brought about the founding of our movement remain strong today. The present regime did not only adopt the old forms of oppression and suppression but they inherited the methods and the laws of the notorious Mfanasibili/Liqoqo regime… It is for this reason that Pudemo still exists today although it now operates underground.’

 

A state crackdown on Pudemo in 1990 included charges of high treason against several of its leaders and police harassment of and physical violence against some of its followers. Pudemo meetings and demonstrations were broken up. The student leaders who had founded Pudemo had graduated by the early1990s. Some were in the private sector while others were in the civil service. Another group, which feared the consequences of being caught by the police, went into exile. The 1990 crack-down led to Swaziland becoming something of a SADC polecat, mainly because South Africa’s apartheid regime, which had given the Swazi state its full backing, especially in the 1980s, was losing grip and the forces of democracy in South Africa were poised to triumph.

 

PUDEMO’s next strategy was to infiltrate the trade union movement. The SFTU became a major voice for the unrepresented when it tabled ‘twenty seven popular demands’ to government. Among these were that workers should have full participation in a constitutional forum. The SFTU was thus calling for a new supreme law for the kingdom. The mandate of the SFTU, which had originally been restricted to labour issues, shifted to accommodate citizens’ rights, human rights, political rights, cultural rights and economic rights. The SFTU adopted a creed, which was similar in tone and substance to PUDEMO’s manifesto and strategies. The five points of the creed suggested that the workers had adopted a revolutionary stance:

ü  We believe that people should govern and this can only happen where the political environment is democratic.

ü  We believe that all people have the right to self-determination, and that by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

ü  We believe that workers everywhere are a vehicle for social transformation.

ü  We further believe that workers have a duty to fight for democracy because even workers’ rights are stifled under a nondemocratic system of governance.

ü  We also believe that silence when workers’ and human rights are systematically and brutally attacked and mutilated makes the silent party as guilty as the perpetrator. In fact, the silent party becomes an accomplice.

There is no evidence to suggest that the SFTU is carrying out the agenda of PUDEMO, although individual members of Pudemo make up a sizeable proportion of the SFTU’s ranks. Moreover, the SFTU’s strategy of shifting from purely labour issues to political matters has popularised it both inside and outside the kingdom. In 2003/4, the SFTU showed a serious decline in strength and support. As a result of the rift in the organisation, some of the key affiliates like the Swaziland National Association of Civil Servants and the Swaziland Nurses ‘Association were suspended due to non-payment of subscription fees. There were indicators that some key leaders of the unions who are affiliated to the SFTU were experiencing weariness following the long leadership of the secretary-general.

 

Whereas it has to be admitted that longevity in office has its drawbacks, it has to be noted that the secretary-general has been returned to office by the affiliates through a democratic process. Secondly, the power of the incumbent over the years might easily have obscured the claims of any other person for the position. The visibility of Pudemo and the NNLC was blurred in 2004. However, the emergence of the NCA in late 2003 and its subsequent resolve to take the constitutional process to court became a rallying point for these parties. The Swaziland National Association of Teachers, which is not an affiliate of any of the two workers’ federations in the country, gave much support to the NCA. However, it was Pudemo, the NNLC, the SFTU and the Swaziland Federation of Labour – a splinter organisation from the SFTU –, which finally went to court to challenge the constitutional process. The case has been finalised as indicated above, and it would seem that the judges acted independently when arriving at their ruling, thus allaying fears that royal power might compromise the judicial process on the matter.

 

DEMANDS FOR DEMOCRACY AND TINKHUNDLA TINKERING (1986-1999)

Stability was not restored with the investure of Crown Prince Makhosetive as King Mswati III on 25 April 1986, for infighting within the ruling elite rather shifted to manoeuvring for positions close to him (Levin 1997, 181). Nevertheless, he moved to establish his authority speedily, disbanding the Liqoqo in May, reshuffling the cabinet and appointing Sotsha Dlamini as the first Prime Minister not of royal blood in October (Macmillan & Levin 2007, 1156; Levin 1997, 182). Queen Dzeliwe was rehabilitated and those involved in deposing her were arrested, charged with treason and sentenced to prison, though some were subsequently pardoned (Levin 1997, 183-186). The heavy handedness of Mswati's governing style has often been noted by commentators, such as Khabele Matlosa (1998, 322): "Under King Mswati, the traditionalist forces stamped their hegemony over the Swazi policy with more coercion, and less diplomacy which was associated with King Sobhuza".

In September 1987, king Mswati prematurely dissolved Parliament and called new elections after a series of scandals involving corruption and misappropriation of funds in the public sector and the cabinet had severely damaged public confidence (Levin 1997, 187-189; Macmillan & Levin 2007, 1156). The elections were marked a very low turnout that indicated growing dissatisfaction with Mswati and feelings of alienation from the tinkhundla parliamentary system (Macmillan & Levin 2007, 1156; Levin 1997, 212, 213. See Tinkhundla elections, 1978-1993 for more information). Questioning of the tinkhundla system emerged from within the establishment itself, with the Senate passing a motion calling for a review of it in 1988 (Levin 1997, 213; Macmillan & Levin 2007, 1156). Research by academics at the University of Swaziland found that only 25% of respondents supported retaining the system, while 45% wished for members of parliament to be elected directly and 30% were uncertain (Levin 1997, 213). In 1989, forty chiefs attending a workshop on the system called for it to be scrapped and replaced with direct elections (Macmillan & Levin 2007, 1156; Levin 1997, 214). As a result of this pressure, the Prime Minister advised Mswati to review the system (Levin 1997, 214).

The economy continued to grow, posting average annual GNP growth rates of 3.3% between 1985 and 1993 and 3.7% from 1992 to 1999, so that GNP increased by 72% between 1983 and 1994 (Matlosa 1998, 323; Dlamini 2005, 68). Population growth in the 1980s was estimated at between 3-4 % per year and 2.9% from 1992 to 1999, while real per capita income between 1980 and 1994 increased by 3% annually, slowing to 0.5% thereafter (McLoughlin&Mehra 1988, 661; Matlosa 1998, 323, 324; IMF 2008, 24). Low economic growth rates and rising population levels led to increased unemployment, especially amongst the youth; in 1988, it was estimated that only a third of primary-school leavers were able to find wage-earning jobs in the formal sector of the economy and the situation would worsen in the years to come (McLoughlin&Mehra 1988, 670, 671). In 1985 agriculture, at 23.8%, remained the largest generator of national income, followed by manufacturing at 21.9%, and government services at 18.4% (McLoughlin&Mehra 1988, 662). Export income was heavily dependent on sugar (31.9%) and wood pulp and wood products (18.9%) (McLoughlin&Mehra 1988, 665). The economy remained heavily dependent on and integrated with South Africa's, with 90% of imports coming from South Africa and 37% of exports going there (Dikotla&Verhoef 2002, 19). State revenue was heavily dependent on Customs Union remittances, which fluctuated between a low of 48.3% in 1981-82 and a high of 67.1% in 1983-84 between 1981 and 1987 (Dikotla&Verhoef 2002, 22).

Relations with South Africa deteriorated rapidly in 1986 as South Africa launched a series of raids, murders and kidnappings in the second half of the year, leading to public indignation in Swaziland and condemnations from the Swazi government (Macmillan & Levin 2007, 1160; Levin 1997, 175, 176). However, the government also clamped down on the African National Congress (ANC) of South Africa with jailing and deportations in February 1987 and May 1988 (Levin 1997, 176). Nevertheless, South African intrusions continued well into 1989 (Levin 1997, 177). Only with the unbanning of the ANC in South Africa in February 1990 did relations with South Africa begin to normalise, but the royal family's public standing suffered greatly in the eyes of Swazis as the result of government collaboration with the South African Apartheid government (Levin 1997, 178).

Financial scandals involving the Prime Minister, the military and cabinet ministers erupted in 1988, adding fuel to public discontent (Levin 1997, 189, 190). Mounting labour unrest in the banking and transport sectors led to the dismissal of Sotja Dlamini as Prime Minister on 12 July 1989 and his replacement with a former Swaziland Federation of Trade Unions (SFTU) secretary-general, Obed Dlamini; however, Obed Dlamini was viewed with suspicion in the trade union movement and the move did little to quell growing labour militancy (Macmillan & Levin 2007, 1156; Levin 1997, 204). The country was rocked by a series of labour conflicts: In August 1988 seasonal workers at the Tambuti Citrus Estates were dismissed after striking for overtime pay, while unrest re-emerged among railway workers; in October over 300 striking Manzini Council workers were fired; in November Havelock Asbestos Mine workers rioted when wage negotiations broke down and workers went on strike at Swaziland Plantations and Swaziland Breweries (Levin 1997, 204, 205). A dispute over back pay for teachers and civil servant in 1989 led to student organised mass meetings across the country, which were banned and riot police were deployed to enforce the ban (Levin 1997, 190, 191). The government undertook to meet the demands and a strike scheduled for November was cancelled, but the King countermanded the deal accusing the teachers of "holding the government to random" and undermining Swaziland's attractiveness to foreign investors (Levin 1997, 191).

It is against this background that the first open signs of political dissent emerged, since the 1973 revocation of the Constitution by King Sobhuza III. In late 1989, pamphlets published by the People's United Democratic Movement (PUDEMO) criticising the Liqoqo were circulated in the urban areas (Macmillan & Levin 2007, 1156). These turned to attacks on corruption in ruling circles, calls for democratisation and even denouncements of the King's extravagant lifestyle (Levin 1997, 193, 215; Macmillan & Levin 2007, 1156). The unbanning of the ANC in South Africa in 1990 and the spread of multi-party democracy in the region in the 1990s encouraged the ground swell for democracy in Swaziland, while the end of the Cold War led to increasing pressure from the United States and other donor countries for reform (Macmillan & Levin 2007, 1159; Matlosa 1998, 323). However, in the words of Matlosa (1998, 324, 325), "Swaziland's traditional aristocracy failed to read the writing on the wall... Swaziland remained an island of aristocratic autocracy in a sea of democratic transitions".

PUDEMO members set to work to broaden and organise resistance through the creation of grass roots civic organisations (Levin 1997, 205). In May 1990, the government responded by launching a police investigation into the origin of the seditions pamphlets in circulation and at the end of the month rounded up subversives, including PUDEMO members, trade unionists, and student leaders, leaders of civic organisations and members of the Nelson Mandela Reception Committee (Levin 1997, 205, 206). The launch of the Swaziland National Association of Unemployed People (SNAUP) was banned at the last moment and riot police were deployed to disperse those who had gathered, unaware of the ban (Levin 1997, 208). The arrests culminated in charges of high treason, sedition, conspiring to form a political party and organising unlawful meetings against 12 people, academics, professionals, student leaders and PUDEMO leaders, though in the end only seven people stood trial (Levin 1997, 206). On the 25 October 1990 all the accused were acquitted of high treason, but six were found guilty of organising or attending a political meeting and were sentenced to jail terms of between six and 12 months (Levin 1997, 209).

The immediate result of this judicial debacle was that PUDEMO and its cause was publicised to the Swazi people and the international community (Levin 1997, 209). Victimisation of leaders in the struggle for democracy followed, with job losses and expulsions from institutions of higher learning; the latter led to class boycotts and unrest at a teacher training college and the University of Swaziland in November, which were suppressed through the arrest and repeated detention of student leaders and mass expulsions with students being violently evicted (Levin 1997, 210). Relations between PUDEMO and the SFTU, already strained, deteriorated when SFTU general secretary of the SFTU, Jan Sithole, distanced SFTU from PUDEMO and the democracy movement before the trial (Levin 1997, 206). The groundswell of public support for PUDEMO in the urban areas led to the formation of popular grass roots organisations such as the Swaziland Youth Congress (SAYOCO), the Human Rights Association of Swaziland and a plethora of civic organisations (Macmillan & Levin 2007, 1156).

In June 1991 King Mswati responded to the widespread and popular groundswell for political reform by establishing a commission to review the tinkhundla system, chaired by Prince Matisela and packed with "old guard" politicians; it was dubbed the 'Vusela’ Committee' because its brief required it to travel the country collecting submissions (Macmillan & Levin 2007, 1156; Levin 1997, 216, 217). Given its composition, and because of its narrow brief, the process was rejected by PUDEMO; it called instead for the lifting of the state of emergency imposed in 1973, a national convention that included political parties to formulate a democratisation process, an interim government to oversee the process, a referendum on whether the 1968 constitution should be revived and a Constituent Assembly to draft a new constitution if the 1968 one was rejected by the electorate (Macmillan & Levin 2007, 1156; Levin 1997, 216, 217). Also in June, after a barrage of news reports of government corruption, attempts were made by the government to censor media reports, but this had little success and accounts of corruption and nepotism continued to appear (Levin 1997, 192, 193).

The Vusela process met its critics every expectation, so that early on the Prime Minister was forced to appeal to the Vusela Committee not to victimise or detain people who vocalised criticism of the government or set forth the case for multi-party democracy, but instead a blanket ban was imposed on press coverage of the Committee's hearings by the Minister of the Interior (Levin 1997, 217). In Manzini on 2 November 1991, the Committee was greeted by PUDEMO demonstrations and the hearings were cancelled, while the demonstrations were broken up by police and 19 people were arrested (Levin 1997, 218, 219). Several youth led demonstrations by Swaziland Youth Congress (SWAYOCO) followed in Manzini and Mbabane in late 1991 through to mid-1992 (Levin 1997, 218, 219). Levin (1997, 219) observed: "In the end, the Vusela committee visited all the Tinkhundla, and the system was given an overwhelming vote of no confidence by the majority of the people who attended the meetings". Emboldened by its success, in February 1992, after a secret Second National Congress held in Soweto, South Africa, PUDEMO announced that it was unbanning itself, and that it would operate openly in Swaziland in the future (Levin 1997, 221).

Undaunted by the failure of the Vusela process, Mswati created a second review committee, promptly dubbed Vusela II, and included three critics of the Tinkhundla system along with the nine conservative members, namely PUDEMO's organising secretary, the president of the Swaziland Human Rights Association and Senator Arthur Khoza; the PUDEMO representative pulled out of the committee almost immediately (Levin 1997, 222, 223; Macmillan & Levin 2007, 1156).

On 9 October 1992, the Vusela II report was published, which recommended that the system remain largely unchanged except that the Tinkhundla system is reformed (Levin 1997, 226). House of Assembly elections would be conducted by an independent authority and be by secret ballot in a two stage process: In the "primary elections" individual chiefdoms within each Inkhundla would chose candidates and in the secondary stage elections would be held at the level of the Tinkhundla where 55 members of the House of Assembly would be directly elected by universal adult franchise (Levin 1997, 226). The Senate would be replaced with a 30 member House of Chiefs comprised of members of the aristocracy (Levin 1997, 227). The executive power of the King would remain untrammelled and political parties would remain banned (Levin 1997, 226, 227). Vusela II also called for the lifting of the state of emergency and the abolition of detention without trial (Levin 1997, 227). Mswati approved these proposals, but they were rejected by opposition groups with PUDEMO reiterating its call for a national conference to chart the way forwarded to constitutional reform (Macmillan & Levin 2007, 1156). Nevertheless the King pressed on, abolished detention without trial, and in late 1993, elections were held in accordance with the new system, following which the conservative Prince Mbilini Dlamini was made Prime Minister (Macmillan & Levin 2007, 1156. See Tinkhundla elections, 1978-1993).

In a move that demonstrated growing international awareness amongst trade unionists of the struggle that was taking place in Swaziland, the Congress of South African Trade Unions mounted a blockade of two major border posts on 3 March 1993; it signalled the beginning of active and continuing support for the democracy movement in Swaziland (Matlosa 1998, 336). SFTUs position shifted towards support for the democracy movement and in 1994 called two general strikes, the second of which cost over R100 million (Matlosa 1998, 335). In 1995 property of the state and of public functionaries were subjected to a spate of arson (Macmillan & Levin 2007, 1156). In March 1995 another general strike was called by SFTU that brought the country to a halt and cost the economy over R100 000 (Macmillan & Levin 2007, 1156; Levin 1997, 239). In November 1995 PUDEMA, SAYOCO, SFTU and allied organisations held a conference at which the King Mswati was called on to go into exile while the country underwent a transition to multiparty democracy (Macmillan & Levin 2007, 1156). PUDEMO followed this up with a campaign of civil disobedience in January 1996, while SFTU announced an indefinite national strike demanding the repeal of the 1995 Industrial Relations Act and the unbanning of political parties (Macmillan & Levin 2007, 1156; Levin 1997, 239). The strike was widely heeded, lasted for nine days and was the most costly to date, however clashes between with the police led SFTU to suspend the strike (Macmillan & Levin 2007, 1156).

Mswati rejected the demands made, saying 'nobody tells Mswati what to do' (cited in Matlosa 1998, 333). The situation in Swaziland attracted the attention and concern of the Southern African Development Community, and a meeting was convened in July 1996 in Maputo to discuss the situation, but the King did not attend (Matlosa 1998, 334). Instead, to relieve some of the pressure he appointed yet a third body, the Constitutional Review Commission (CRC), with 31 unilaterally appointed members, chaired by a member of the royal family and including a wider range of interests and views than hitherto (Matlosa 1998, 333, 334; Macmillan & Levin 2007, 1156; Dlamini 2005, 42). Despite the presence of pro-democracy activists, the manner of its appointment, the overwhelming dominance of conservatives and it marginalisation of democracy advocates led to its rejection by pro-democracy groups (Dlamini 2005, 42; Matlosa 1998, 334). An activist lawyer withdrew because he refused to be used as "window dressing", PUDEMO's Mario Masuku withdrew in January 1997 and SFTU's Themba Msibi was suspended after failing to withdraw when instructed to do so (Dlamini 2005, 42; Matlosa 1998, 334). The CRC spent five years research and writing its report in condition so not transparent that they verged on secrecy (Dlamini 2005, 39).  Meanwhile yet another tinkhundla election was held in 1998 (See Fifth Tinkhundla general elections, 1998).

In 1998, bomb blasts took place apparently aimed at assassinations of public figures, including the King; an unknown group calling itself the "Tigers" took responsibility (Institute for Security Studies 2002). In April 1999 SFTU, PUDEMO and other pro-democracy groups formed the Swaziland Democratic Alliance (SDA) to coordinate their activities (Institute for Security Studies 2002).

REPRESSION, REFORM AND RESISTANCE (2001-2007)

As early as February 1999, after the publication of a report analysing the potential impact of HIV/AIDS on Swaziland, King Mswati III declared the plague to be a national disaster (Daly 2001, 23). The epidemic had already taken hold, however, and the estimated prevalence rate stood at 23% by 2001 and by 2005, the estimate was 33.4% (Daly 2001, 22; Macmillan & Levin 2007, 1159). In June 2005 the Co-ordinator of for AIDS Prevention estimated that one in every 15 children had been orphaned by the epidemic and that by 2010 one in eight children would be orphaned by AIDS (Macmillan & Levin 2007, 1159). In 2006, it was estimated that one in ten Swazi households were sibling-headed (American Centre for International Labour Solidarity 2006, 5). The consequences, in terms of loss in human life, suffering, social devastation and labour force loss, have been devastating.

In the new millennium the economy stagnated and economic growth fell to an average of a little over 2% a year compared with an average of 3.6% a year in the 1990s, while real per capita income growth fell from an average of 3% per annum to about 0.5% from the mid-1990s onwards (IMF 2008, 6, 24). However, income distribution was extremely unequal, with the wealthiest 10% of the population obtaining 43% of income (Dlamini 2005, 68). Because of high levels of inequality in the distribution of wealth and income combined with growing unemployment, this has led to increased impoverishment amongst the bulk of the population, "poverty has risen from 66 percent in 1995 to 69 percent in 2001 and is perhaps higher today" (IMF 2008, 24). Primarily as a result of the HIV/AIDS crisis, population grow rates declined rapidly from 2.5% in 2001 to 1.7% in 2006, while unemployment hovered around 30%, though an estimate by the International Labour Organisation (ILO) put unemployment at 40% in 2006 (IMF 2008, 57; American Centre for International Labour Solidarity 2006, 5). The ILO survey estimated that formal sector jobs had shrunk from 65 000 in 1982 to 20 000 in 2006 (American Centre for International Labour Solidarity 2006, 5). The erosion of jobs was at least partly attributable to the virtual collapse of the Swazi textile industry as a result of the end of the Multi-Fibre Arrangement in January 2005 and competition from Asian producers, as well as low sugar prices on the world market (American Centre for International Labour Solidarity 2006, 11, 12). Though government consumption spending rose, this neither stimulated economic growth nor ameliorated the plight of the poor, while investment in healthcare and education stagnated (IMF 2008, 5). As many as 23% of children did not attend primary school, spending on healthcare has remained a constant 6% of GDP despite the escalating HIV/AIDS crisis and a quarter of the population required food assistance (IMF 2008, 6, 7; Macmillan & Levin 2007, 1158).

Swaziland continued to be wracked by industrial and social unrest, with government responses to popular protests becoming increasingly heavy handed. In March 2000, following reports of corruption, the government closed its own daily newspaper, the Swaziland Observer and was only permitted to resume publication a year later (Macmillan & Levin 2007, 1157). The latter part of 2000 saw industrial unrest and protests in September and October, including protests against land evictions in eastern Swaziland culminating a government ban on labour meetings and closure of the University of Swaziland (Macmillan & Levin 2007, 1156, 1157; IRIN 2000). 0n 4-5 November trade unionists and political activists met in South Africa and issued an ultimatum to the government, entitled the Nelspruit Declaration, demanding the unbanning of political parties, lifting of the 1973 state of emergency and the revocation of the 1998 Public Order Act (Macmillan & Levin 2007, 1157; Dempster 2000). If the ultimatum went unanswered by 9 November, they planned national stay-aways on 13 and 14 November and a blockade of the border on the 29 and 30 as well an interim government in exile (Macmillan & Levin 2007, 1157; Dempster 2000; IRIN 2000). The Swazi government responded by reintroducing detention without trial, arresting Peoples' United Democratic Movement (PUDEMO) leader Mario Masuku (though he was released a few days later), harassing Swaziland Federation of Trade Unions (SFTU) secretary general Jan Sithole and ordering the expulsion of South African journalists (Macmillan & Levin 2007, 1157; Smith 2000; IRIN 2000). The SFTU led border closure, with the support of the Congress of South African Trade Unions (COSATU), achieved some success (Macmillan & Levin 2007, 1157).

In February 2001, the Constitutional Review Commission (CRC), appointed in mid-1996, finally submitted its report to the King, but the report was only made public in April (Macmillan & Levin 2007, 1156; Maroleng 2003, 3). Even before publication of the report the chair of the CRC, Prince Mangaliso Dlamini, antagonised democracy advocates by telling an assembly at the royal kraal that the CRC had found Swazis to be content with the current system, and so the report was rejected by them in advance (Maroleng 2003, 3; IRIN 2000). The published report recommended the retention and strengthening of the status quo (Macmillan & Levin 2007, 1156). In December 2001, Mswati appointed a Constitution Drafting Committee of 15 members, a move seen by the political opposition as yet another attempt to delay a transition to democracy (Macmillan & Levin 2007, 1156).

In February 2002 Mswati revoked a decree that increased the powers of the King, but hopes of liberalisation were dashed by the introduction in June of a harsh Internal Security Bill that forbade public display of party insignia, criminalised calls for boycotts or mass stay aways and set a 20 year penalty for those undergoing military training outside the country with the intention of engaging in insurgency (Maroleng 2003, 3; Macmillan & Levin 2007, 1157). The proposed draconian measures met with international condemnation and hardened the positions of donor such as Denmark, which had suspended aid in February already because of the deteriorating human right situation and the USA, which in March had excluded Swaziland from expanded assistance to developing countries for the same reason (Dlamini 2005, 36; Macmillan & Levin 2007, 1160). Increasingly calls by the Swaziland Solidarity Network (SSN) and the Swaziland Democratic Alliance (SDA) for trade sanctions drew sympathy from international labour organisations (Dlamini 2005, 35, 36). In the end, in the face of national and international criticism, the Bill was withdrawn (Dlamini 2005, 36; Macmillan & Levin 2007, 1160).

In late 2002 a conflict between the government and the courts erupted when the Chief Justice, Stanley Sapire, ordered the release of a young girl earmarked for marriage to the King Mswati; Sapire was eventually forced to resign when the order went unheeded and he came under intense pressure from the executive (Macmillan & Levin 2007, 1157; Maroleng 2003, 4, 5). In November 2002 the conflict between the judiciary and the executive intensified as six judges of the Court of Appeal resigned when two orders issued by the Court were not respected by the government, one of which ruled that the King could not rule by decree or over-rule Parliament (Macmillan & Levin 2007, 1157; Maroleng 2003, 4, 5).

According to Macmillan & Levin (2007, 1157): "The Prime Minister reportedly stated that the Government would not be bound by the rulings of the Court of Appeal and the Attorney-General alleged that the Court was acting under 'external influence'". A stalemate ensued for the High Court judges refused to hear cases and member of the legal profession went on strike (Macmillan & Levin 2007, 1157). A mediation effort by the Commonwealth Secretariat led to return to work of judges in mid-November 2004, but when the judges discovered that some court orders had still not been implemented, as agreed on with government, they resumed their strike (Macmillan & Levin 2007, 1157; 1158). In April 2005, the crisis was resolved and in 2006, the Court of Appeal was reconstituted (Macmillan & Levin 2007, 1158).

In April 2003 protests at the suspending the constitution by King Sobhuza II in 1973 were dispersed by police with teargas, forming the backdrop for the dissolution of the Parliament in May for the tinkhundla election of September/October (Macmillan & Levin 2007, 1158). The SDA and SFTU called for a boycott of the election, but several members of affiliated bodies stood as candidates, including Obed Dlamini, leader of the Ngwane National Liberatory Congress (NNLC) and chairperson of the SDA, resulting in the break up of the SDA (Karume 2004, 15; Masuku 2008). The election was marked by low levels of voter registration and a voter turnout of just 18.4%, which, whether due to the boycott or apathy or both, did little to enhance the credibility of the exercise (Olaleye 2004, 24, 27; Commonwealth Expert Team 2003, 44, 45; see "2003 Tinkhundla election" in Election archive for details).

In November 2003, the Draft Constitution was presented to the King by the Constitution Drafting Committee; it was promulgated on 26 July 2005 after some minor changes and came into effect on 8 February 2006 (Macmillan & Levin 2007, 1158, 1159; American Center for International Labor Solidarity 2006, 4). The power of the King in every sphere of governance was maintained, save the removal of his right to govern by decree, but an extensive Bill of Rights was added (Maroleng 2003, 3; Macmillan & Levin 2007, 1158, 1159. See Constitution for details). Measures to improve the representation of women in Parliament were also included (Maroleng 2003, 3. See Women's representation quotas for details). Other than this, the status quo was substantially maintained: "The Swazi king remains above the law, not subject to parliamentary legislation and with the power to dissolve parliament at any time" (Maroleng 2003, 3). Political parties were not mentioned anywhere in the document. Pro-democracy organisations universally rejected the Draft and the promulgated Constitution (Maroleng 2003; American Centre for International Labour Solidarity 2006, 18-19; Macmillan & Levin 2007, 1159).

In the face of growing poverty and dependence on foreign food aid, the extravagant lifestyle of the royal family increasingly became a source of popular grievance. Plans to buy a US$24 million royal jet in 2003 were cancelled as a result of a public outcry and the announcement in January 2004 that the government was to spend US$14 million to build individual palaces for the 11 wives of the King drew widespread criticism (Macmillan & Levin 2007, 1158; Carroll 2004). In late February and early March nurses went on strike to obtain overtime arrears owed to them from as far back as 2001 (Macmillan & Levin 2007, 1158). In May civil society bodies such as churches and civic organisations came together to form the National Constituent Assembly (NCA), to oppose the implementation of the new constitution without popular consultation, and in June the NCA requested the High Court to rule that the CDC be obliged to hold public hearings; however the Supreme Court ruled against the NCA in May 2008 (Macmillan & Levin 2007, 1158; Mamba 2008). In January 2005, a two-day general strike was called in protest against the new constitution, even prior to its promulgation, and against the extravagance of the royal family (Macmillan & Levin 2007, 1158).

In late October a series of petrol bombings occurred in various parts of the country, aimed at police, officials and court buildings, as a result of which the Internal Security Bill was reintroduced to parliament by the government, but members of parliament deferred consideration of the Bill until after the new constitution came into effect since its provisions could conflict with the bill of rights (Mail & Guardian 2005). However, in December 2005 and January 2006 16 members of PUDEMO, including its secretary general were arrested and charged with treason (Macmillan & Levin 2007, 1159; Mail & Guardian 2006). Allegations of assault and torture were made in court and the wife of one activist died in police custody (Macmillan & Levin 2007, 1159; Nduru 2006). In February, one of those arrested pleaded guilty and was given a two-year prison term (Macmillan & Levin 2007, 1159).

On 12 April 2006 COSATU, together with the South African Communist Party, the Young Communist League of South Africa and the Swaziland Solidarity Network, blockaded the five border posts between Swaziland and South Africa "in support the oppressed people and the workers of Swaziland in their struggle for freedom, democracy and human rights" (COSATU 2006a). South African police at one border post opened fire injuring eight people and arrested 25 people (COSATU 2006b; Macmillan & Levin 2007, 1160). Increasing state repression antagonised donor nations and in May, the European Union announced that it was suspending direct aid to the government (Macmillan & Levin 2007, 1160). In September, a protest march by students over scholarship suspensions was broken up by riot police and in December PUDEMA and SWAYOCO members gathering for a march in Manzini were similarly dispersed (Macmillan & Levin 2007, 1159).

Drought and loss of labour through AIDS led in June 2007 to increased food insecurity in the Kingdom (Macmillan & Levin 2007, 1159). In July 2007 the SFTU, Swaziland Federation of Labour (SFL) and the Swaziland National Association of Teachers (SNAT) led massive stay-aways and demonstrations in Mbabane and Manzini, demanding multi-party elections, and attempts by police to disperse the crowds led to battles with protesters (Nyathi 2007; Masuku 2007).

HIS MAJESTY KING MSWATI III’S REFORMS

Since his ascension to the throne, Mswati III has made several attempts to reform the constitution. After the reports of two Vuselas (consultative commissions established to canvass Swazi opinion on constitutional matters but led by Mswati’s brothers), the king established a Constitutional Review Commission (CRC) in 1996. The criteria for appointing the Commission remained the king’s secret. According to Joshua Bheki Mzizi, “the terms of reference are reminiscent of the royal attitude of 1959 in that Commissioners are taking part in the exercise in their individual capacities, and group representations are disallowed throughout the project. The chairmanship of CRC was given to Prince Mangaliso Dlamini [[1]]. However, in February 2001, four months before the CRC completed its review, most human rights and pro-democracy organisations in the Kingdom rejected the process and the up-coming report. This was partly a result of the fact that the chairman of the commission told a gathering at the royal Kraal that their investigations had demonstrated that the people were satisfied with the existing system. His deputies added, for good measure, that the king’s powers would be enlarged and that the country did not want trade unions. In December 2001, the King announced the formation of a Constitutional Drafting Committee to work on a final draft by the end of 2003.

 

During February 2002, Mswati’s revocation of the decree on ‘enlarged royal powers ‘gave rise to speculation that the new constitution might include a number of more liberal provisions. However, these hopes were dealt a severe blow by the introduction of the Internal Security Act in June 2002, which stipulated harsh penalties for anyone participating in or organizing political demonstrations, as well as further restricted labour union activity.

 

A NEW CONSTITUTIONAL DISPENSATION FOR SWAZILAND

The Constitutional Drafting Committee did in two years what the original commission had failed to do in five. Commissioners consulted legal and social experts, and travelled to Britain to study its parliamentary monarchical system, which King Sobhuza had rejected in 1973. The draft constitution under discussion would have pleased the late King Sobhuza because it ensures that political power remains centred in the monarchy. It does this by guaranteeing that the Swazi king remains the head of the executive, and responsible for the appointment of the prime minister, the cabinet, chiefs and judges.

 

In addition, no bill passed by parliament becomes law without his approval. The new draft constitution will also see the re-establishment of the traditional post of ‘Authorised Person’, who would assume executive duties if the king should die or become incapacitated.

However, it reverses centuries of Swazi cultural precedent in two important ways:

ü  It removes the king’s ability to rule by decree; the Court of Appeal is replaced by a Supreme Court (to become the kingdom's highest judicial body);

ü  It lifts Swazi women out of their legal minority status; recognises that chiefs can no longer function in isolation; and acknowledges that in modern society, groups such as the disabled and children require special attention;

Although the draft constitution is being called the ‘ultimate law of the land’, a ‘new political dispensation for Swaziland’, it does not fundamentally change the current absolutist status quo. The Swazi king remains above the law, not subject to parliamentary legislation and with the power to dissolve parliament at any time. The draft constitution allows the King to appoint 20 of the 30-member Senate. On a more positive note however, eight of these members must be women. The other 10 members, five of whom must also be women, are then appointed by a lower House of Assembly of 76 members – 60 popularly elected, 10 appointed by the king, and six special women members.

 

The king remains head of the army, police force and prison system. Perhaps more sinisterly, while political parties are not mentioned in the draft constitution, "freedom of assembly and association" is guaranteed in Chapter Four, entitled Protection and Promotion of Fundamental Rights and Freedoms. The imperative of constitutional, political and judicial reform Swaziland’s constitutional reform comes at a time when, even though political parties have been banned, a growing lobby for reform is gaining ground, with an agenda that has been embraced by a large proportion of the professional classes, trade unions and students. In fact, the ban on political parties has not deterred progressive forces such as the Ngwane National Liberatory Congress (NNLC), the more radical Peoples United Democratic Movement (Pudemo) and the Swaziland Youth Congress. United under a common front called the Swaziland Democratic Alliance (SDA), they have voiced criticism of the current traditional system, advocating the introduction of a constitutional monarchy.

 

In addition, the growing call for political reform has recently included conservative organisations, such as the cultural group Sive Siyinqaba Sibahle Sinje (initially thought to be a front for Imbokodvo) and the Swaziland Federation of Labour (SFL). Nevertheless, in the absence of an internally based legal political opposition, the Swaziland Federation of Trade Unions (SFTU) has led the call for reform from within. Yet, the recent failure of the SFTU to organise successful mass action in Swaziland has raised serious doubts about the capacity and the support base of progressive movements in that country. Most political analysts believe that the influence of progressive forces is far greater outside the country, a consequence of the repressive nature and intolerance of dissent that has informed the monarchy’s interaction with progressive forces. Even though the need for reform is quite evident, and tensions continue to simmer under the surface, progressive movements find themselves in a position where opportunities to express their discontent have become fewer and far between, especially as the palace increases its crack down on opposition elements in society.

 

It has recently emerged that, for example, most pro-democracy movements in Swaziland have decided not to participate in the October 2003 parliamentary elections. These organisations believe that their participation would validate the new draft constitution, which they have rejected since the process began in 1996. Obed Dlamini, a former prime minister who is now president of the banned NNLC, has described the constitutional draft process as “shameful”, stating that his party would reject the result. Reform of the judicial system is also particularly important, because of constant interference by the monarchy. Recently, the government refused to abide by court decisions, prompting the resignation of the Court of Appeal’s judges on 30 November 2002 and the forced resignation of the Chief Justice of the High Court, whose independent-minded rulings have riled the palace. In addition, despite widespread condemnation, the government refused to reverse its position.

 

Following a fact finding mission to Swaziland in January 2003, the International Commission of Jurists, Centre for the Independence of Judges and Lawyers (ICJ/CIJL), released a report considering that although the draft constitution was a step towards the resolution of the “rule of law” crisis that has paralysed jurisprudence in the kingdom, it was not the final solution. In fact, this report argued that “threats to judicial independence, in violation of international human rights standards, are deeply rooted and routine in Swaziland”, and further concluded that “periodic attacks on the judiciary by the executive reveal an executive attitude that holds the judiciary, the rule of law, and the separation of powers in virtual contempt, in particular when they conflict with entrenched interests”. In short, the draft constitution provides Swazis with a sound basis to begin dialogue about the type of political system that would be best suited to the social and political conditions that obtain in that country. Particularly encouraging is the fact that the king’s ability to rule by decree is absent. However, it has been argued by constitutional lawyers that if no mechanisms exist for justifiability of a constitution, the rights and freedoms contained in such a constitution may be rendered useless. Therefore, there clearly exists strong need to create and strengthen institutions that will assist in upholding the rule of law and that will broaden democratic practices in the “participatory based system” that the Swaziland aspires to achieve. If this is not guaranteed one cannot help but wonder whether or not Swaziland’s future will look much like its past.

THE 2005 CONSTITUTION

In line with the trend in modern democratic states in adopting written constitutions, Swaziland has put forth her own written constitution. It is her first post-independence constitution with a bill of rights. The bill of rights espouses the right of equality before the law as a protected fundamental right. Section 20(1) provides that all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. The new constitution has really created new expectations and a new constitutional dispensation

While the constitution removed the king’s ability to rule by decree, it reaffirmed his absolute authority over the cabinet, Parliament, and the judiciary. It also maintained the Tinkhundla system—in which local chiefs control elections for 55 seats in the House of Assembly—and did not overturn a ban on political parties. The charter provided for limited freedoms of speech, assembly, and association, as well as limited equality for women, but the king could suspend those rights at his discretion. While this new constitution insures that governing power remains firmly in the hands of the monarchy, it is an attempt to balance the concerns of the royal establishment and local and international demands for political reform and the acknowledgement and respect of human rights.

However, what it fails to address is the status of political opposition parties, banned since 12 April 1973 when Mswati’s father, King Sobhuza II, suspended the constitution. In fact, while a new provision in the Bill of Rights guarantees "freedom of assembly and association", there is no specific mention of political parties. As a consequence, the question of what role the monarchy must play in Swazi politics (a problem that has bedevilled this tiny kingdom ever since it gained its independence from Britain in 1968) remains fundamentally untouched.2 More specifically, this relates to the ways in which a genuinely inclusive political system, one able to incorporate the demands of a “modern” state, can coexist with the vast power and privileges accruing to those owing their position to a traditional system centred on the ruling Dlamini royal lineage. This paper will attempt to identify the progress (or the lack thereof) reached so far towards creating a democratic and participatory-based system through attempts at reforming Swaziland’s constitution.

Swaziland is in a fairly unique position as it has more than one document which claims to be the supreme law of the land:  the King’s Proclamation to the Nation No 12 of 1973 (the ‘1973 Decree’) and the Constitution of the Kingdom of Swaziland Act No 1 of 2005 (the ‘2005 Constitution’).  The 1973 Decree is still in effect; a decree can only be repealed by decree, and there has been no decree repealing the 1973 Decree.  The 2005 Constitution vests most powers in His Majesty.  For example, he appoints the Cabinet, the judges and the Civil Service Commission.  He can veto any law and is not properly bound by the laws of the realm (see for example, s 11).  However, this is nothing compared to the 1973 Decree.  That document places “all executive, judicial and legislative functions” in the King. In other words, the 1973 Decree allows the King to rule by decree.  It was this power His Majesty used on 6 February 2006 when he declared that the 2005 Constitution (gazetted on 26 July 2005) would come into force on 8 February 2006.  The King’s (Commencement of the Constitution) Proclamation No 1 of 2006 demonstrated that the 1973 Decree was still fully operational. As things stand in the state of Swaziland in 2011, there can be little doubt that the 1973 Decree is the supreme law of the land.

SOURCES OF LAW

Swaziland does not have a single code containing its laws. These are drawn from a variety of sources. The following are sources of Swaziland law:

 Constitution

 Legislation

 Common Law

 Judicial precedent

 Customary Law

 Authoritative texts

 Decrees

 

CONSTITUTION OF SWAZILAND

In line with the trend in modern democratic states in adopting written constitutions, Swaziland has put forth her own written constitution. The constitution was adopted in 2005. It is the supreme law of the land

 

LEGISLATION

Legislation in Swaziland is contained in statute books that are available in most libraries. The Ministry of Justice law library and the Government printers in Mbabane (Webster Print) offer legislation for sale. There are however difficulties in finding older legislation at the Government printers, such as legislation from the early 80s. The national libraries in both Mbabane and Manzini have most volumes of the laws of Swaziland. Both Acts of Parliament and royal decrees are published in government gazettes available at the government law library and the government printers. The cost of these is sufficient to turn away the indigent information seeker, since government charges E1.00 per page (approximately US $0.2) and the printers charge E25.00 per bound copy (approximately US $4). A cheaper alternative is to access the laws of Swaziland in the libraries and make photocopies. The major obstacle to that is the failure to update the volumes of laws as and when new Acts are enacted or amendments are made.

 

The government website is outdated and does not contain any legislation. Private companies’ websites can be consulted, but the problem is that since these entities have particular focus areas, the legislation they publish will likely be limited to these areas. For environmental laws, the Swaziland would be helpful. Another helpful website for legislation would be the one for the parastatal Swazi National Trust Commission. For labour related legislation, the Conciliation, Mediation and Arbitration Commission’s website would be useful.

 

Constitutionally, legislation refers to laws that have been passed by parliament and have been assented to by the King. Subsidiary legislation refers to laws passed by other bodies to which parliament have validly delegated such legislative powers. These include government gazettes, ministerial orders, ministerial regulations and municipal byelaws. In Swaziland, the supreme legislative authority vests in the King-in-Parliament. The King and parliament are empowered by the Constitution to make laws for the peace, order and good governance (section 106(a) & (b)). Section 106(a) clearly states that the supreme legislative authority of Swaziland rests in the King-in-parliament. These powers are exercised through bills passed by both chambers of parliament and assented to by the King under his hand (section 107).

 

Parliament can confer power on any authority to create binding laws. Currently parliament is a bicameral system consisting of both the house of Assembly and Senate. In terms of the Constitution, legislation brought through parliament has to be scrutinised by both houses of parliament before it goes for assent to the King (section 107). A bill shall not become law unless the King has assented to it and signed it in token of that assent (section 108). By virtue of section 77(5) (a), the Attorney General (AG) is charged with drafting and signing all bills presented before parliament. Subsection (6) empowers the AG to delegate these functions to any of his/her subordinate officers.

 

The Constitution further provides that the Attorney General shall cause a bill that has been duly passed and assented to in accordance with this constitution, to be published in the gazette as law as soon as practicable (section 109(i)). Laws made by the king and parliament in terms of this constitution shall be styled “Act of Parliament”, and the words of enactment shall be “enacted by the king and parliament of Swaziland” (section 109(4)). Amendment of laws usually poses challenges for the information seeker as government is slow to publish comprehensive updated versions of amended laws. Of note here is the Criminal Procedure and Evidence Act (CPEA) which although recently amended, such amendments cannot be found in one comprehensive document. It is still scattered and can be found in other legal instruments apart from the CPEA, such as government gazettes. This impedes access to information.

 

The process of amending laws in Swaziland has to be done through introduction of the particular legislation in parliament by the ministry responsible, known as a ‘line ministry’. This is the ministry responsible for the administration of that particular Act. The administration of Acts of parliament is an executive function, one that the King can delegate to any member of Cabinet. Section 64(3) of the Constitution provides that the King may exercise the executive authority either directly or through the cabinet or a minister. A constitutional anomaly exists today regarding the Game Act (Amended) No. 4 of 1991, which is administered by a private institution contrary to section 64(3).  Section 70 further provides that the King may assign to the Prime Minister or any other minister responsibility for the conduct of any business of the Government including the administration of any department of Government. The Game Act is a piece of legislation that governs matters related to preservation of game and other types of wildlife in Swaziland. This Act together with the Convention on International Trade in Endangered Species (CITES) are administered by a company called Big Game Parks (BGP). BGP is a juristic person, and is neither the Prime Minister nor minister to whom responsibility for conducting government business can constitutionally be assigned.  The administrative power was transferred through some unknown instrument from the relevant line ministry to the King’s Office and eventually to BGP. Hence, there is no line ministry through which to amend this Act. The main problem with the Game Act is its retroactive application coupled with its granting of immunity from prosecution to game protection officers (known as game rangers), who also happen to be employees of BGP.

 

The contentious provision of the Game Act, section 23 reads as follows:

 

1.     The Minister after consultation with the Swaziland National Trust Commission may from time to time appoint game rangers for good and sufficient reason may remove or dismiss any such game ranger.

2.     Any game ranger or person acting on the instructions of a game ranger shall have the powers and the right:

a)    To carry and use firearms in the execution of his official duty provided such firearms are properly licensed;

b)    To use firearms in self-defence or if he has reason to believe that his life, or the life of any of his colleagues, is threatened or is in danger;

c)     To arrest without a warrant any person suspected upon reasonable grounds of having contravened any of the provisions of this Act or regulations made hereunder;

d)    To use reasonable force necessary to effect the arrest of or to overpower any person who resists arrest and who is suspected on reasonable grounds of having contravened any of the provisions of this Act;

e)     To carry out searches without a warrant under section 22 of this Act,

3.     A game ranger or person acting on the instructions of a game ranger shall not be liable to prosecution in respect of any act or omission done in the exercise of his powers or rights under subsection (2) of this section.

 

The Constitution in section 69(2) clearly spells out that part of the responsibility of cabinet ministers is to report to parliament on their administration of government business. The administration of the Game Act by a private company prevents this from happening and violates the constitution. Since the operation of the Game Act was backdated through Legal Notice No.138 of 1997 to give immunity from prosecution to perpetrators of violence, section 119 of the Constitution is thereby violated. This section provides in subsection (b) (ii) that parliament or any other authority or person has no power to pass any law, which operates retroactively to adversely affect the personal rights and liberties of any person. The fact that victims of human rights violations committed by game rangers in 1992, who were given backdated immunity in 1997 for their acts committed five years earlier cannot access justice places such victims in adverse circumstances. Such immunity granting legislation therefore violates the Constitution.

 

PRECEDENT

Precedent forms part of the law of Swaziland. Decisions of superior courts of record are therefore binding on lower courts. Decisions from South African courts are only persuasive, and courts refer to them in formulating their decisions. Decisions from similar jurisdiction can also be cited for their persuasive value. Magistrates’ courts decisions do not become precedent since these are lower courts. They are however bound by decisions of the High Court and the Supreme Court of Appeal. Precedent assists in consistency in legal interpretation and application of the law. It has also been justified for bringing certainty and uniformity to the law. However, precedent has been blamed for causing rigidity of legal systems, preventing development of the law.

 

COMMON LAW

Swaziland also applies the common law, which refers to unwritten law or law from non-statutory sources, but excludes Swazi customary law.  Section 252 of the Constitution provides that the principles and rules that formed, immediately before 6th September 1968, the principles and the rules of Roman-Dutch Common law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that these principles or rules are inconsistent with this constitution or a statute. The Common Law of Swaziland is primarily Roman Dutch Common law as applied in the Transvaal in 22nd February 1907.

 

AUTHORITATIVE TEXTS

Written works of eminent authors have persuasive value in the courts of Swaziland. These include writings of the old authorities as well as contemporary writers from similar jurisdictions.

 

INTERNATIONAL LAW

Swaziland is signatory to many international instruments. Although the country is quick to ratify, implementation is often slow or never materialises. Swaziland belongs to the dualist tradition, thus views international law and domestic law as two separate legal systems. Hence, domestication of international law by an Act of Parliament is necessary before international law can be applied. This of course excludes customary international law, which is binding on all states. The Constitution in section 238 provides that unless an international agreement is self-executing, it will not become law in Swaziland unless enacted into law by Parliament. The Attorney General is mandated by section 77(5) (b) to draft and peruse treaties and agreements the government of Swaziland is party to.

 

CUSTOMARY LAW

Since Swaziland is perceived to be a homogenous society with minimal divisions along clan or tribal lines, it is largely believed that it is customary law is uniform, taken from practices and customs that have obtained since time immemorial. However, for custom to be worthy of the name, it must be certain, reasonable, practiced by many people and must be notorious. It must attain the recognition of formal law. The custom must be so notorious that it must gain lawful recognition.

 

The application of customary law is sanctioned by section 252(1) (c) of the Constitution which provides that the principles of Swazi law and custom are recognised and adopted and shall be applied and enforced as part of the law of Swaziland. Subsection (3) thereof provides that the provisions of subsection (2) do not apply in respect of any custom that is and to the extent that it is inconsistent with a provision of the Constitution or a statute and enforced as part of the law of Swaziland. These constitutional provisions buttress those of the Swazi Courts Acts No. 80 of 1950, which provide that where customary law is repugnant to natural justice; it shall to the extent of that repugnancy be null and void. However, instances where customary law is declared null and void for its failure to comply with natural justice are hard to come by. The denial of legal representation under customary criminal procedure is a clear infraction of the rules of natural justice and the right to a fair trial.

 

The customary law of Swaziland is not codified. It is passed down from generation to generation by oral tradition. This has led to varying, almost always conflicting versions of what real Swazi law and custom is. There were moves towards the end of the last decade to codify all Swazi customary law but to this day, the code has not been published. Today Swazi law and custom is interpreted and applied almost exclusively by Swazi Courts established under the Swazi Courts Act No. 80 of 1950, who apply it in cases of minor infractions, such as petty theft and domestic quarrels. Of late, however, the trend has been for these courts to apply customary law in cases of domestic violence, robbery and theft.

 

Swazi customary law is also applied at the chieftaincy level to handle disputes between residents in the rural communities where chiefs are the traditional leaders. It is also applied by the King acting in his capacity as Ingwenyama. Acting under these powers, the King can issue any orders and is advised by a council of elders. However, his powers have been curtailed by the new Constitution in section 140(1), which provides that judicial powers shall only vest in the judiciary. This has not stopped the King from overstepping these boundaries. Acting under customary law, in 2006 the King issued orders for the eviction without compensation of over 20 families from the Hlantambita/ Sigcaweni area despite the Constitution providing that there shall be no arbitrary eviction. This eviction order was issued under customary law.

 

Besides the constitution, there are other pieces of legislation, which recognise the application of Swazi customary law in certain respects. These are:

  • The Marriage Act No.17 of 1964
  • The Administration of Estates Act 1902
  • The Swazi Courts Act No.80 of 1950

 

In applying Swazi law and custom, courts can sit with assessors who guide the court on what would be regarded as custom within the wide plethora of customary provisions. Criteria such as uniformity and consistency of application are used here.

 

ROYAL DECREES

Prior to the coming into force of the Constitution, the King had power to rule by decree, hence King Sobhuza’s unilateral abrogation of the independence constitution in 1973 through a royal proclamation. The new constitution however only gives the King power to makes laws in parliament. Section 107 of the Constitution provides that the power of the King and parliament to make laws shall be exercised by bills passed by both chambers of parliament and assented to by the King. This partially curbed the abuse of power to issue decrees, which threatened the rule of law in that country. In 2000, the Court of Appeal in the case of Professor Dlamini v The King (Appeal Case No.41/2000) had declared the Non-bailable Offences Order No.14 of 1993 unconstitutional. The order prohibited the granting of bail to suspects for a certain class of stipulated crimes, including rape, murder and armed robbery. The executive reacted to this by swiftly procuring the promulgation of Decree No.2 of 2001 which purported not only to validate or re-enact the Order but to make other far reaching constitutional changes[[2]].

 

The public outcry that ensued led to the promulgation of yet another decree, Decree No.3 of 2001, which purported to repeal the earlier Decree No.2 and the section providing for refusal of bail in respect of certain crimes under the 1993 Order. In issuing both Decrees, the King declared that he was exercising powers vested in him by the  King’s Proclamation to the Nation of 1973 (the 1973 Decree).

 

SUBORDINATE LEGISLATION

Subordinate legislation refers to any instrument having force of law made under an Act of Parliament. In terms of section, 253(1) of the constitution Parliament has power to make such subordinate legislation. This could refer to rules and regulations made under any Act of Parliament.

 

THE JUSTICE SYSTEM IN SWAZILAND

A dual judicial system includes courts based on Roman-Dutch law and traditional courts using customary law. The judiciary is an independent body. At the apex of the Swaziland justice system is the Supreme Court, which is the final court of appeal on all matters. It has a supervisory and review jurisdiction over all the courts of Swaziland. The High Court is second after the Supreme Court, and it is vested with powers to handle matters with a constitutional bearing. It also has unlimited original jurisdiction in civil and criminal matters. Parallel to the High Court are the Industrial Court and Industrial Court of Appeal, which are specialist courts dealing exclusively with industrial and labour matters. Magistrates Courts follow below the High Court. Swazi National Courts were set up to deal with issues involving Swazi nationals under customary law. Over the years, the precise definition of Swazi national has become blurred as more non-nationals were tried and convicted by these courts, presided over by court presidents, who are supposedly well versed in Swazi law and custom. The 1998 Swazi Administration Order set up Chiefs Courts, which were to work in similar fashion to the Swazi National Courts, but the Court of Appeal struck down this Order. The judiciary faced a number of challenges in recent years, mainly from government’s refusal to obey court orders, resulting in the en masse resignation of judges of the former Court of Appeal. Tenure of office was also a challenge, as at the beginning of 2007 only two judges of the High Court occupied office after their compatriots’ one-year contracts were not renewed.

 

THE CONSTITUTION AND THE JUDICIARY

The 2006 Constitution ushered in a departure from the position laid down by the 1973 Decree, which vested all judicial, executive and legislative power in the King. Judicial power now exclusively vests in the judiciary in terms of Section 140(1) of the Constitution. To avoid a repeat of the 1973 usurpation of power by the monarch, the Constitution further provides that no organ or agency of the Crown shall be conferred with final judicial power.

 

Section 138 of the Constitution further provides that justice shall be administered in the name of the Crown by the judiciary, which shall be independent and subject only to the Constitution. Section 139(1) provides that the judiciary shall consist of

(a)   The Supreme Court of Judicature comprising –

(i)The Supreme Court, and

(ii)The High Court

(b) Such specialised, subordinate and Swazi courts or tribunals exercising a judicial function as Parliament may establish by law.

 

CHAPTER OUTLINE OF THE CONSTITUTION

The Constitution of Swaziland is the supreme law and if any other law is inconsistent with the Constitution that other law shall, to the extent of its inconsistency, be void (section 2(1)). Therefore, Swaziland has constitutional supremacy. The Constitution was adopted in July 2005 after consultations with the citizens of Swaziland and came into effect in February 2006. It purports to be an autochthonous document. These consultations are disputed in some quarters, as there are claims of intimidation and denial of group submissions during the process. The Constitution sets out clearly the state structure, bill of rights, and the separate arms of government as well as other administrative organs such as the public service commission.

 

Below is a chapter-to-chapter analysis.

Fundamental Rights and Freedoms-Section 14

Protection of Right to Life-Section 15

Protection of Right to Personal Liberty-Section 16

Protection from Slavery-Section 17

Protection from Inhuman or Degrading Treatment-Section 18

Protection from Deprivation of Property- Section 19

Equality before the Law-Section 20

Right to a Fair Hearing-Section 21

Protection against Arbitrary Search or Entry-Section 22

Protection of Freedom of Conscience or Religion-Section 23

Protection of Freedom of Expression-Section 24

Protection of Freedom of Assembly and Association-Section 25

Protection of the Freedom of Movement-Section 26

Rights and Protection of the Family-Section 27

Rights and Freedoms of Women-Section 28

Rights of the Child-Section 29

Rights of Persons with Disabilities-Section 30

Abolition of Status of Illegitimacy-Section 31

Rights of Workers-Section 32

Right To Administrative Justice-Section 33

Property Rights of Spouses-Section 34

Enforcement of Protective Provisions-Section 35

 

PREAMBLE

In circumstances of ambiguity, a Preamble may be used to aid interpretation. In the fifth and sixth preambular paragraph, it is stated that the Constitution binds the Legislature, Executive, Judiciary and the other organs and agencies of government. It does not specifically state that it also binds the King, who is referred to in the Constitution separately to these agencies of government (see section 4(4)). Even if the King has powers beyond those of most monarchs, they must be constitutional powers, which are therefore subject to the Constitution; otherwise, the instrument does not deserve that name.

 

In the sixth preambular paragraph, it states that the courts are the ultimate Guardians of the Constitution if the government of laws is to prevail. This is an admirable sentiment, but for the rule of law to prevail, all branches of government must be the guardians of the Constitution, not only the judiciary. To overcome this possible (mis)interpretation, but to retain the sentiment of the rule of law and adherence to court rulings, the paragraph would have weighed more had it been phrased to read that the courts are the ultimate interpreters of the Constitution and their decisions must be obeyed if government of laws is to prevail.” Additionally it should be rule of law rather than the government of laws. The terms Vusela and Sibaya should have been cross-referenced to the sections where they are explained, or that a glossary of the terms should have been added as a Schedule to the Constitution, to aid greater clarity.

 

CHAPTER ONE

Swaziland is defined as a unitary sovereign and democratic kingdom. This chapter sets out the territorial boundaries of Swaziland, the anthem, the flag and the languages of the country. The supremacy of the Constitution is also set out in this chapter. It is interesting to note that the Constitution further imposes a duty on citizens to uphold democracy in section 63. It further mandates citizens to promote the rule of law and to uphold and defend the Constitution. There is a supremacy clause stating that all laws of the country should conform to the provisions of the Constitution for them to be valid. Siswati and English are recognised as the official languages.

CHAPTER TWO

This Chapter refers to the King and Ingwenyama as a symbol of unity and eternity of the Swazi nation. It also talks about the rights, prerogatives and obligations, succession to the throne and the royal family set-up. The Ingwenyama is the traditional head of state and is chosen by virtue of the rank and character of his mother in accordance with Swazi law and custom. He enjoys the same legal protection and immunity from legal suit or process as the King.

Provision for succession to the throne is made, the position of Crown Prince is recognized, and that the Crown Prince shall only ascend the throne when he has attained the age of eighteen years. The office of the Ndlovukazi as Regent is provided for and that, if for whatever reason the King is unable to perform the functions of his office the Regent shall perform those functions, the Regent shall be assisted by the Authorised Person in-Libandla. Where the Regent and the Authorised Person are not in agreement on any matter the matter shall be referred to Bantfwabenkhosi (crown princes) and chiefs. Provisions for the civil list and remuneration; immunity of the King, Regent and Authorised Person is made. Under this chapter a body, known as the King's advisory Council is established. This body shall be appointed by the King and be responsible for advising the King.

CHAPTER THREE

Chapter III is what is commonly referred to as the Bill of Rights. Fundamental human rights and freedoms of the individual are declared and guaranteed. It should be noted that these rights and freedoms are not absolute. Consequently, certain limitations are imposed in the exercise and enjoyment of these rights and freedoms. These rights and freedoms are enumerated as follows:-

  1. Respect for life, liberty, security of person and equality before the law and equal protection of the law.
  2. freedom of conscience, expression and peacefully assembly and association
  3. protection of the privacy of the home and other property of the individual; and
  4. protection from the deprivation of property without compensation except as provided by law

The Legislature, Executive and Judiciary and all organs and agencies of government are enjoined to respect the rights and freedoms, without regard to gender, race, religion etc. There is also recognition and protection of rights of what is commonly referred as marginalized groups, such as women, children and persons with disabilities. Not only does this chapter declare and guarantee human rights and freedoms it further provides mechanism for redress in the event of violations of it.

Notwithstanding the fact that these rights and freedoms have been declared and guaranteed certain derogations are permitted in situation of an emergency. A clear procedure for declaring state emergency and circumstances that warrant a declaration of a state of emergency are set out. Further, to ensure that there is never a perpetual state of emergency thus a perpetual violation of rights and freedoms time limits of state of emergency, if declared, are prescribed.

As indicated that a declaration of a state of emergency constitutes derogation to the protection of rights and freedoms it is noteworthy that the Constitution provides that notwithstanding such declaration there are certain rights and freedoms that cannot be compromised. These are the rights and freedoms to-

  1. Life, equality and severity of person;
  2. Right to fair hearing;
  3. Freedom from slavery or servitude; and
  4. Freedom from torture, cruel, inhuman or degrading treatment or punishment.

The 2005 Constitution in general fails to adequately protect fundamental human rights, civil liberties and freedoms of the individuals, in that it gives rights with the one hand and wrest them away with the other. The rights given are subject to limitations, the effect of which is to undermine the very rights the Constitution seeks to protect and guarantee. This appears more clearly when one reads Chapter III together with section 165(3)(c) in that the commission on human rights shall not investigate certain matters, especially matters of royal prerogative. This is worrying given the fact that many human rights violation occur under royal prerogative. The Constitution of Swaziland thus does not make adequate provision for the enjoyment of fundamental human rights.

The bill of rights shall by virtue of section 14(2) be enforceable by all structures of government, natural as well as artificial persons. The difficulty is that the composition of parliament in terms of sections 95 and 96, and the judiciary in accordance with section 160, is so weak that it will be difficult to enforce the rights if the institutions created to give effect thereto are themselves not strong and independent.

 

PROTECTION OF RIGHT TO LIFE

The constitution guarantees a right to life in section 14. But section 14 (3)does not sufficiently provide for every person in society as the current formulation of this provision presents the risk that only enumerated groups are entitled to the fundamental rights and freedoms in the constitution. It could be wise to expand it to include sex, marital status, sexual orientation, ethnic or social origin, culture, language and conscience. This provision could also be rephrased to prohibit discrimination by the state or any person against anyone on one or more grounds.

 

Swaziland still retains the death penalty. Whilst section 15 states that no person shall be deprived of life, it permits the use of the death penalty in the execution of the sentence of a court in respect of a criminal offence of which that person has been convicted. Although the death penalty is not mandatory, this provision is clearly not enough to ensure the full guarantee of the right to life. The right to life, as guaranteed by the Second Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, and African Charter on Human and Peoples’ Rights, is the most fundamental of all the human rights. Imposition of the death penalty itself is not only a violation of the right to life, but also the ultimate form of cruel, inhuman or degrading punishment or treatment.

 

PROTECTION OF RIGHT TO PERSONAL LIBERTY

The protection guaranteed in international standards is missing or not fully recognised and entrenched in this constitution. For example, international standards of fair trial provide that anyone arrested or detained must be notified at the time of the arrest of the reasons of their arrest or detention and of their rights, including their right to counsel. This information is essential to allow detained persons to challenge the lawfulness of their arrest or detention and, if they are charged, to start the preparation of their defence. It is essential, against arbitrary arrest and detention, to ensure that no detainee is held in incommunicado detention, or in a place other than an official detention centre or prison, or held in any manner intended to frustrate proper and prompt access to the detainee by legal representatives, doctors or next of kin.

 

Finally, it is not clear why this section on the protection of the right to personal liberty should include exceptions allowing for orders requiring a person to remain within a specified area or prohibiting that person from being within such an area as envisaged by section 16(2)(j)(i-ii). There’s a similar provision under section 26(6), which contains a very far-reaching limitation clause. Section 26(6) purports to elevate Swazi law and custom above the Constitution. It provides that nothing contained or done under the authority of any provision of Swazi law and custom shall be held to be inconsistent with or in contravention of that section. The potential abuse inherent in these provisions is evident from the history of the human rights violations committed against the families forcibly evicted from Macetjeni/Kamkhweli in 2000 and by the government’s subsequent refusal to abide by the numerous court rulings upholding the right of the families to return to their homes.

 

PROTECTION FROM SLAVERY AND FORCED LABOUR

Section 17 provides for the protection from slavery and forced labour. However, the section contains a subsection (3) (e) a clause which provides that forced labour does not include labour reasonably required as part of reasonable and normal parental, cultural, communal or other civic obligations, unless it is repugnant to the general principles of humanity. The International Labour Organisation has criticised legislation in Swaziland, which does not comply with Swaziland’s obligations contained in ILO Convention 29 of 1930 on Forced Labour, ratified by Swaziland in 1978. In particular, the Swaziland Administration Act, No. 79 of 1950, provides for orders requiring compulsory cultivation, anti-soil erosion work and other works of construction and maintenance. The ILO expressed hope that the necessary measures would be taken to amend these provisions in order to ensure observance of the Convention. Furthermore, the ILO requested that the Government take the necessary measures to amend the Swazi Administration Order, 1998 which it found to be in serious breach of the above Convention. That Order provided for compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads with severe penalties for non-compliance. The Expert Panel recommends that these sections be amended to ensure unambiguous compliance with Swaziland’s international obligations.

PROTECTION OF WOMEN’S RIGHTS

The Constitution of Swaziland contains extensive measures to protect and advance women. Article 20 prohibits discrimination on the grounds of gender and permits Parliament to pass laws that are "necessary for implementing policies and programmes aimed at redressing social, economic or educational or other imbalances in society". Article 28 enshrines the right of women "to equal treatment with men and that right shall include equal opportunities in political, economic and social activities" and protects women from being compelled to "undergo or uphold any custom to which she is in conscience opposed". Article 59(5) obliges the State to afford equality of economic opportunity to all and takes steps to ensure the full economic integration of women. Article 60(4) provides that the State must ensure that gender balance must be attained in all bodies, constitutional or otherwise.

Given these general provisions, it is not surprising that the representation of women in political structures is specifically addressed. The Constitution (2005, Article 84) lays down the principle that the people of the Kingdom have the right to be heard and represented through freely chosen representatives, but says also "Without derogating from the generality of the foregoing subsection, the women of Swaziland and other marginalized groups have a right to equitable representation in Parliament and other public structures". In accordance with this, special measures are taken to ensure the representation of women in both houses of Parliament.

As far as the Senate is concerned, half the 10 members elected by the House of Assembly must be women, while at least eight of the 20 members appointed by the King must be women (Constitution 2005, Article 94). Thus, at least 50% of the indirectly elected Senators and 43% of all Senators must be women. The provisions for the House of Assembly are complex (Constitution 2005, Article 95). There are no quotas for the 55 members that are directly elected through the Tinkhundla system (for an explanation of the system see Karume 2003, Swaziland's Electoral Process IN EISA Election Update 2003: Swaziland [PDF document], 21; Article 95(1) (a)). Half of the 10 members nominated by the King must be women (Article 95(1) (b), (2) (a)). Should women form less than 30% of the members of Parliament then an additional four women, one each from each of country's regions, are indirectly elected by the House of Assembly from a list of between 12 and 20 candidates compiled by thee Chair of the Elections and Boundaries Commission (Article 86, 95(1)(c), (3)).

Since political parties are not permitted in Swaziland (Political Parties, the advancement of women's representation through voluntary quotas has not been possible. In the previous election held in 2003 only nine of the 55 elected members of the House of Assembly (16.4%) were women (Women's representation in the House of Assembly). This, however, was a great improvement on the two of 55 (3.6%) produced in the 1998 election. In 2008, only seven women won seats in the House of Assembly, but with the four indirectly elected members, the number of the elected women in the House of Assembly would be 11 of 59 members, or 18.6%. However, in December 2009, more than a year after the 2008 elections, the regional elections for the four additional women members had still not been conducted (Magagula 2009).

RIGHTS AND PROTECTION OF THE FAMILY

Section 27(2) provides that marriage shall be entered into only with the free and full consent of the intended spouses. The preceding section 27(1) refers to men and women of marriageable age having the right to marry and found a family. Section 34(2) obliges parliament to take legislative steps to regulate the property rights of the spouses, with the implication in subsection (1) that the rights will be described in a gender-neutral manner. While sections 27(1) and (2) are consistent with the provisions of the Convention for the Elimination of all forms of Discrimination against Women (CEDAW) and should when implemented prevent forced marriages, they may not be sufficient to protect the girl child against abductions and forced or early marriages. Under customary law, age in years does not determine a girl’s capacity to marry. Girls below marriageable age still continue to be forcibly married under customary law, which knows no consent on the part of the woman, in marital issues.

 

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (African Women’s Protocol) provides that state parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall also enact appropriate national legislative measures to guarantee that no marriage shall take place without the free and full consent of both parties, and also to ensure that the minimum age of marriage for women shall be 18 years. The need for greater constitutional protection of the rights of the girl child is of urgent concern, particularly in light of the disproportionate impact of the HIV/AIDS pandemic on adolescent girls and young women. The Marriage Act 1964 places the age of consent for marital purposes at 21 for both males and females. However, a girl can lawfully enter into marriage at the age of 18 with full parental consent. That notwithstanding, girls below the age 16 (age of sexual consent) have and continue to be forcibly married under customary law.

 

Customary law remains a bar to the enjoyment of many marital rights by both men and women. Apart from section 28(1), which provides for marriages to be based on the consent of both parties, section 28(3) also buttresses this provision by providing that a woman cannot be forced to undertake a custom to which she is by virtue of conscience opposed. Several customs are still practiced today which go against these provisions. These include the practice of widow inheritance (kungena/kungenwa), the payment of pride price (lobola) and polygamy.

 

In August 2009 a Swazi women's rights activist, Doo Aphane, had filed a legal action, in which she named the Swazi government as the defendant, challenging the constitutionality of laws that prevent women married in community of property from registering immovable property solely under their own names, thus making it impossible for them to own their own property. Swazi common law regards men married in community property as the administrators of the property. In addition, Swazi law states:

Immovable property, bonds or other real rights shall not be transferred or ceded to, or registered in the name of, a woman married in community of property, save where such property, bonds or real rights are by law or by a condition of a bequest or donation excluded from community. (Deeds Registry Act No. 37 of 1968, §16(3), 6 SWAZILAND GOVERNMENT GAZETTE (Sept. 6, 1968) (official source)

Aphane argued that both the Deeds Registry Act and the common law recognizing only men as the administrators of immovable property run counter to sections 20 and 28 of the Swaziland Constitution (providing for the equality of everyone before the law and guaranteeing the equality of women in political, economic, and social activities, respectively). Government representatives argued that the practice of forcing women married in community of property to use their husbands' names when registering property is not sanctioned by any law in Swaziland. In addition, the representatives argued that the court should limit its decision to the Aphane case and should not make a determination on the constitutionality of the laws that could have an effect on all women in Swaziland. Alternatively, should the court decide to rule on the constitutionality of the communal property laws, the representatives pleaded that it give the Swaziland Parliament an opportunity to amend the laws, thus avoiding any disruption in the buying and selling of property that the representatives believe would result from a court decision striking down the existing law as unconstitutional.

 

THE RIGHTS OF PERSONS WITH DISABILITIES

Section 20(1) provides that all persons are equal before and under the law in all spheres. It further lists in subsection (2) prohibited grounds of discrimination, amongst which is disability. This will go a long way in ensuring that rights of persons living with disabilities are protected and guaranteed. Section 30(1) further provides that persons with disabilities have a right to respect and human dignity and that the government and society shall take appropriate measures to ensure that these persons realise their full potential. Parliament is obliged by subsection (2) thereof to enact laws for the protection of persons with disabilities to enable those persons to enjoy productive and fulfilling lives. This provision takes a sharp break from for instance the provision on women’s rights, in that it does not limit the provision off facilities for persons living with disabilities to the availability of resources. However, the section is also weakened by its lack of affirmative action provisions to advance the welfare of persons living with disabilities. Unless parliament rescues the situation by enacting affirmative legislation for addressing the past imbalances, the rights of persons living with disabilities will continue to be violated.

 

RIGHT TO FAIR HEARING

Section 21 provides extensively for the right to a fair hearing. However, section 21(2) (c) provides for legal representation at government expense only for offences that carry the death penalty or life imprisonment. This is too limited. A large proportion of the Swazi population is unlikely to be able to afford to pay for counsel. An important restraint against government overreach is to provide for representation of the accused. Government must provide for legal representation at government expense for those without the means to pay for it in all cases where significant prison sentences might be imposed.

 

RIGHT TO FORM AND JOIN POLITICAL PARTIES

Section 25 deals with freedom of association. While it can be assumed that, as a result, political parties will no longer be unlawful in Swaziland, the omission of a specific reference to political parties from the provisions relating to Parliament in Chapter VII leaves the Parliament weak and renders the extent of implementation of Section 25 doubtful. It has been held that a prohibition, or even a restraint, on the freedom to form or belong to a political party is a denial of the freedoms of association and expression. This right should therefore be clearly guaranteed in the constitution. Not to do so would be contrary to the principles of democracy referred to in section 58 of the constitution and contrary to regional conventions to which Swaziland is a party. For example, the New Partnership for Africa’s Development provides in clause 79 that “development is impossible in the absence of true democracy. Africa undertakes to respect the global standards of democracy, which core components include political pluralism, allowing for the existence of several political parties.” In addition, Articles 2, 8, 10, 13 and 19 of the African Charter on Human and Peoples’ Rights, which Swaziland signed in 1995, have the effect of requiring free political participation without interference. The Expert Panel recommends that section 26 be made explicit in guaranteeing no less than this.

 

ECONOMIC AND SOCIAL RIGHTS

Swaziland is a party to the African Charter on Human and Peoples’ Rights (ACHPR), yet some of the rights contained in the Charter are omitted from the constitution. These are the right to health (Art. 16ACHPR), and the right to the environment (Art. 24 ACHPR). These rights are only contained in the constitution as unenforceable policy. Other socio-economic rights, which are to be found in the constitutions of countries in the region such as the right to food, water, housing and social security, are also omitted. The Constitutional Review Commission itself recommended that free health care be provided where the patient is unable to pay. It is possible to judicially enforce these rights, as courts would insist in an action by the government.

 

The constitution helps promote women’s equal access to economic opportunities and redress the longstanding imbalance in the allocation of the country’s resources. Section 32 (4) and section 28 (2) places a positive duty upon the government to improve and provide necessary facilities for the welfare of women so that they may attain their full potential and advancement. However, there is an accompanying provision that subjects this duty to availability of the resources. In the chapter on the directive principles of state policy Section 59 (5) requires the state to afford equality of economic opportunity to all citizens and in particular, to take all necessary steps so as to ensure that full integration of women into the main stream of economic development. Unfortunately, the directive principles are not included in the justifiable provisions.

 

RIGHTS OF THE CHILD

Section 29 (6) of the constitution provided that within three years of the commencement of the Swazi constitution every Swazi child shall the right to free education in public schools, at least up to the end of the primary school, beginning with the first grade. The burden was upon government to take measures to give effect to this provision. Despite the constitutional obligation for free primary education the government did not effect after the elapse of the three years stipulated in the constitution. In 2009 the Swaziland National Ex-Miners Workers Association[[3]] (SNEMA[[4]])brought an application at the High Court for an order calling upon the Minister of Education and Training Wilson Future (first respondent), Prime Minister (second respondent) and government to show cause why they should not be ordered to make free education in public schools available for every Swazi child. The association cited Section 29 (6) read together with Section 60 (8) of the country's constitution Act 001 of 2005.Government was also called upon to show cause why it should not make available education policy in so far as the implementation of the constitutional requirement under the above-mentioned Section for scrutiny, so as to determine its compliance with constitutional obligation. The ex-miners argued that the persistent lack of education of their children at primary school level is a complete and unlawful violation of the constitution.

 

However, the High Court dismissed the case by the National Ex-Miners Workers Union. The government lawyer averred government had complied with the provisions of the constitution as it was providing free education as defined in the context of Swaziland as set out in the constitution. He maintained that the term referred to ‘a consolidated programme aimed at creating an environment characterised by minimum barriers to quality primary education’ and asserted that this included the provision of stationery, textbooks, qualified teachers, accommodation for teachers such as classrooms and capitation grants. Justice Bheki Maphalala ruled that while the constitution required free primary education, it did not set down a timetable. In his judgment, the judge mentioned that government has put into place a detailed programme on how they intend to comply with their constitutional obligation; according to that programme, the implementation of free primary education will be staggered. The rollout of free primary education affects only grade one and two, with higher grades expected to be included in future.

 

On appeal, the Supreme Court declared that every Swazi child of whatever grade attending primary school is entitled to education free of charge, at no cost and not requiring any contribution from any such child regarding tuition, supply of textbooks, and all inputs that ensure access to education. The court further declared that the Government has the constitutional obligation to provide education free of charge, at no cost, to every child so entitled. In a subsequent case between the same parties, the Supreme Court held that the Government's obligation was dependent on the availability of resources and that the Government's programme of rolling out free primary education incrementally was constitutional. The judge further made a declaration that the free education should start within the three years as enshrined in the constitution. This can only mean that every Swazi child will be entitled to free education and that such free education will commence as soon as the child enters the first grade. All Swazi children who were already in school at the commencement of implementation would be entitled to free education and that such would include children in the first grade. Regarding children who would come in thereafter, the provision of free education would commence when they entered Grade One and not at preschool [[5]].

 

RIGHTS OF WORKERS

Section 32 deals with the rights of workers. It does not include the right of workers to strike, which is to be found in International Labour Organisation Convention C87 “Freedom of Association and Protection of the Right to Organise”, ratified by Swaziland in 1978. This right is also to be found in the constitutions of a number of neighbouring countries. An ILO Committee of Experts has criticised the current situation in Swaziland as being incompatible with ILO Convention 87.

 

After formation, the Swaziland Police Union and the Swaziland Correctional Services Union separately applied to the Labour Commissioner to have them registered. The unions relied on section 32 of the constitution. Both unions were refused by the commissioner who stated that section 3 of the Industrial Act of 200 (amended) specifically excluded or prohibited registration of trade unions by members of the Royal Swaziland Police, Umbutfo Swaziland Defence Force and His Majesty’s Correctional Services. The unregistered Swaziland Police and the Swaziland Correctional Services Unions have lost their appeal against the government where they wanted to be allowed to form trade unions. The unions, who appealed against a High Court ruling dismissing their application, sought an order declaring section 12 of the Police Act and section 18 of the Prison Act null and void in order for them to be able to form trade unions.

Supreme Court Judges said the case made by the unionists is that they were discriminated against. The Justices said that the unionists contended that they find themselves in a disadvantaged position by the fact that they cannot form trade unions, "they have no bargaining power, no means to enforce improvements in their salaries and working conditions." The court further mentioned that they were dealing with members of disciplined forces and it is common cause that the laws the unionists seek to be struck down are their disciplinary laws. It is correct that the constitution must be read as a whole. It follows that meaning must be given to section 39. What is clear is that exceptions contained in a constitution, which guarantees fundamental rights and freedoms must be given a strict and narrow, rather than broad construction. The judge said the courts cannot give an interpretation to a constitution, which will do violence to the language of the constitution.

A proper interpretation must be given to the language as it appears in that document. A broad, generous and liberal interpretation must be given to the sections pronouncing human rights and freedoms. Any section which limits such rights and freedoms must be given a strict and narrow interpretation," he added. Justice Zietsman stated that the crucial section of the constitution that needed interpretation in the case was section 39 (3). He said it provides that in relation to a person who is a member of a disciplined force nothing contained in the disciplinary laws of that force shall be held to be inconsistent with or in contravention of the other section mentioned above.

The section excludes members of the disciplined forces from receiving the benefits set out in the other sections, which guarantees their rights, if such benefits are taken away from them by the disciplinary laws applicable to them. He concluded that the High Court was correct in coming to the conclusion that the application should be dismissed.

Justice Zietsman observed that the suggestion by the High Court that "there is a lot to be said or in favour of according all workers without exception or distinction to freely join or become members of a trade union of their choice". This would give more effective meaning to the Bill of Rights contained in chapter three of our constitution and accord with Swaziland’s obligations under the various international instruments to which she is signatory. The three pieces of legislation that were under the spot light in these applications need to be reconsidered as a matter of urgency. Perhaps, as a starting point, consideration should be given to allow members of the disciplined forces to form join or be members of a trade union of their choice without the right to go on strike."

CHAPTER IV-CITIZENSHIP

Citizenship is the state of belonging. Citizenship guarantees rights of nationality and all other rights flowing from being a national of a particular country. Amongst other inherent rights is the ability to pass on to natural and adopted children since they cannot obtain their independent citizenship at that stage. This chapter talks about acquisition and loss of acquisition. Citizenship in Swaziland can be by way of descent, operation of law or birth, marriage or by registration.

 

Laws pertaining to passing on of citizenship are generally discriminatory against women. As a result, women have problems regarding passing on of their citizenship to their children born in or out of marriage with foreign men. Swazi women and their children born in or outside marriage with foreign men experience much frustration in accessing certain state resources and rights, which are meant for all citizens. These include but are not limited to: access to travel documents and international passports, access to government scholarships for higher education and representing the country abroad. Swazi women are also unable to pass their citizenship to their foreign husbands who are given the same status as any other foreigner. Most notable is the fact that it is only the father who can confer citizenship on his children (section 43(1)). A Swazi mother cannot confer citizenship on her children unless a Swazi citizen (section 43(4) fathers them.

 

 Despite Section 28(1) read together with section 14(f), which prohibits discrimination on the grounds of sex and gender in the political, economic, and social spheres and create legal equality for the first time between men and women, section 44 restricts the right to claim citizenship by birth to a child whose father is not a citizen of Swaziland. It makes no reference to the status of the mother, except in subsection four where her Swazi citizenship only becomes relevant to the child should the unmarried father fail to adopt or claim the child under Swazi law and custom.

 

Section 53 provides for the establishment of the citizenship board, whose chairperson interestingly announced the Board’s stance towards foreign spouses upon his assumption of office. According to this newly sworn in chairperson, Mr Zonke Khumalo, foreigners who marry Swazis and expect to gain citizenship will be told to go back to wherever they came from. Such comments are very worrying, given that the Board has exclusive authority to grant, deny or cancel citizenship (section 53(1)). Only women can in terms of the Constitution and the Citizenship Act benefit from marriage to Swazi nationals as regards citizenship. In terms of section, 44 of the Constitution such a woman must lodge a declaration with the minister responsible for citizenship accepting Swaziland citizenship, and shall become a citizen as from the date of lodgement.

 

Section 53(1) (a) and (b) confer exclusive authority on the Board to grant or cancel citizenship by registration, and investigate, and where appropriate revoke the citizenship of any person under section 49. While the person concerned has the right to be heard and to be represented at the hearing of their case by the board, there is no provision for review of the decision taken by a higher or independent tribunal or court. This safe guard should be included to protect against possible abuse of the boards powers. There have been cases where the alleged citizenship status of government critics has been used as a basis for threatening their deportation. The case of Bhekindlela Thomas Ngwenya v Deputy prime minister and the Chief Immigration Officer is a classic case where the appellant was an elected member of parliament. He was declared a prohibited immigrant and was served with a deportation by the DPM. When the high court set aside the deportation order, parliament sought to include a new section to the Immigration Amendment Act to incorporate a tribunal with powers to supersede any previous judgments. When the Appeal Court ruled that an ordinary legislative process, parliament then called upon the king to abrogate the Constitution, could not take its specially entrenched power away.

 

POLITICAL RIGHTS AND CIVIL LIBERTIES 

Swaziland is not an electoral democracy. King Mswati III is an absolute monarch with ultimate authority over the cabinet, legislature, and judiciary. Of the House of Assembly’s 65 members, 55 are elected by popular vote within the tinkhundla system, and the king appoints 10. The king also appoints 20 members of the 30-seat Senate, with the remainder selected by the House of Assembly. Legislators are not allowed to initiate legislation. Members of both houses serve five-year terms. Traditional chiefs govern designated localities and typically report directly to the king.

Political parties are banned, but there are political associations, the two largest being PUDEMO and the Ngwane National Liberatory Congress (NNLC), although PUDEMO was declared a terrorist organization in 2008. The new constitution does not explicitly overturn or even mention the 1973 ban on political parties. Freedom of expression is severely restricted in practice, especially regarding political issues or the royal family. The king may suspend constitutional rights to free expression at his discretion. Publishing criticism of the monarchy is banned, and self-censorship is widespread, as journalists are subject to intimidation by the authorities. While several defamation lawsuits were launched in 2008, some were dismissed.

Freedom of religion is respected in practice but not explicitly protected in the constitution. Academic freedom is limited by self-censorship. While Swazis criticize the government in private discussions, they are less free to criticize the monarchy itself. The government has restricted freedoms of assembly and association, and permission to hold political gatherings has often been denied. Although freedom of association is enshrined in the constitution, prodemocracy protesters are routinely dispersed and arrested by police. In the midst of the slew of bomb attacks on state targets in 2008, the government banned marches and demonstrations, and police used force to break up demonstrations throughout the year. In 2005, the government issued guidelines for the creation, registration, and operation of nongovernmental organizations (NGOs), a long time goal of local groups.

Several political parties are enlisted as existing in Swaziland. Information about all of them is not readily available. This can be attributed to these parties being newly formed and still budding, whereas for others no official document regarding their manifestos are in circulation.

NGWANE NATIONAL LIBERATORY CONGRESS (NNLC)

The Ngwane National Liberatory Congress (NNLC) is a political party in Swaziland. It was founded on 12 April 1963[2] as a breakaway party from the Swaziland Progressive Party (SPP) led by Dr. JJ Nquku. A breakaway party was formed in 1972 on the eve of state elections due to failure of the President accepting a woman candidate as the Deputy President in the party’s Congress. The party won three seats out of twenty-four in the State Elections and was the first opposition to an Imbokodvo dominated parliament.

Bhekindlela T Ngwenya was deported by the ruling elite on suspicion that he was not a Swazi citizen, and therefore could not be a parliamentarian. This was done in total disregard of the courts of the land, which ruled in his favour. In 1973, the ruling party could not stand the NNLC as an opposition and therefore banned the party. The Leadership of the party was detained for sixty days without trial. The majority of members that were able to escape the state forces and detention went to Tanzania a Pan Africanist State, which had friendship with NNLC. After serving a long period in Tanzania, the ruling class negotiated the Return of The President Dr. Ambrose Zwane.

History was rewritten on the 28th March 1998 when the party buried its President Dr. Ambrose Zwane in an overwhelming public support in which the King was represented. At the end of November1998, the party had its congress in which Obed Mfanyana Dlamini a former Prime Minister won the Presidency. In the Elections of 1999, the party opposed the country’s electoral system and boycotted the elections. Some members registered and participated in the elections. These were taken to a disciplinary hearing of which they were expelled. However, in 2003 the party did not have a positional resolution on the elections of which it opened opportunities for individuals in the party to participate in the elections. The party’s President participated in the elections and won as Member of Parliament under the Nhlambeni Inkhundla.

PEOPLES' UNITED DEMOCRATIC MOVEMENT (PUDEMO)

Pudemo was formed in July 1983 during the political upheavals caused by the Liqoqo regime, which had called itself ‘The Supreme Council of State’. The Liqoqo wielded violent power immediately after the death of King Sobhuza II in August 1982. It was its style of leadership – the negative effects of which climaxed in the legitimate Queen Regent, Dzeliwe Shongwe, being deposed – that caused extreme national disharmony and royal intrigue at the palace. Pudemo became a serious challenger of the Liqoqo tactics, and at the same time called for the return of democracy in Swaziland. Pudemo suffered severe bruises from the Liqoqo regime, but many Swazis, surprised and baffled by Liqoqo’s show of power, sympathised with Pudemo. The pool of supporters came mainly from the youth (university, college and high school students), the intelligentsia and the labour force.

 

The rise of Pudemo in 1983 was followed by the formation of other smaller parties. The Swaziland Liberation Movement was founded by an exiled prince in London and later aligned its objectives with those of Pudemo. The Swaziland National Front (Swanafro) was another smaller party established by a businessman. The Swaziland National Progressive Party (SNPP) was started by another individual. Both Swanafro and the SNPP failed to win popular support. Their current membership is limited to the founding personalities and their immediate families.

 

SIVE SIYINQABA NATIONAL MOVEMENT (SS)

SS was formed in 1996 ostensibly to counter the perceived growing anti-monarchical radicalism espoused by Pudemo and the trade union movement, but supported the restoration of multiparty politic son the ranks of whose members Pudemo was founded. SS was registered as a cultural organisation, but did not hide its political intentions should party politics be legalised in Swaziland. It reconstituted itself as a political organisation on 5 August 2006, restyling itself as Sive Siyinqaba National Movement (SS), with a wide support base amongst conservatives (Mzizi 2005,. 16, 17, 19-22, 25; IRIN 2006).The objectives of the movement emphasised the importance of protecting and conserving Swazi heritage, including the institution of the monarchy, but it represents a modernising element among conservatives, in as much as it places great value on democracy. This impulse as summed up in the preamble to its Constitution:

The Movement therefore, seeks to take the social structures, ideals, customs and philosophy of the Swazi as a starting point, and, without destroying this fabric, inject dynamism to allow for change and development.

The movement has become increasingly outspoken and critical of the government, such as when the Rule of Law crisis erupted in 2002 and more recently over the decision to bar civil servants, and therefore teachers, from standing for election. As with the other two well-established parties, the SS has an elaborate constitution laying down party structures that provides for a youth wing and a women's wing; in addition the constitution has a clause that specifies that to ensure that women are adequately represented in all decision-making structures the movement shall establish and implement an empowerment programme in all its structures including the provision of quotas and co-option where normal processes did not accommodate Gender.(Mzizi 2005, 22, 23;Times of Swaziland 2008).

The party itself had several members in the 2003 House of Assembly and a majority of appointed members in the Senate. It fielded candidates for the primaries in 2008, several of whom made it through to stand for election to the House of Assembly. The SS's manifesto for the 2008 campaign is a long, complex and comprehensive document that is broadly liberal in outlook and, while stressing the importance of traditional institutions such as the monarchy and the chiefs, places much emphasis on codifying their powers and responsibilities to curb abuse of power, the training of traditional leaders in the proper performance of their roles, and decentralisation of governance. The economic values espoused are free-market-orientated, but value state intervention to indigenise the economy and empower local entrepreneurs as well as to attain developmental goals in healthcare, education, family planning and food security.

ENFORCEMENT OF PROTECTIVE PROVISIONS

To facilitate proper enjoyment of the rights as contained in the constitution, the state carries the responsibility of providing institutions to ensure such enjoyment. One such institution is the judiciary. The new constitution of Swaziland 2005 provides in section 35(1) that where a person alleges that any of the foregoing provisions of this chapter has been, is being, or is likely to be, contravened in relation to that person or a group of which that person is a member (or, in the case of a person who has been detained, where any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress. This chapter seeks to give the High Court original jurisdiction to hear and determine any application made to it in respect of any infringement human rights.

The judiciary is a vital institution for the maintenance of democracy and the rule of law. It is entrusted with the noble task of keeping every organ of the state within the limits of power conferred upon it by the constitution and laws, thereby making a rule of law meaningful and effective. The integrity and independence of the judiciary should be maintained. The judicial system in a country is central to the protection of human rights and freedoms. Courts play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection and those perpetrators of human rights violations are brought to justice. Strict adherence to the principle of separation of powers enhances the independence of the judiciary.

The state should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular; with regard to the manner in which judges are appointed, qualifications for appointment and the duration of their terms of office.  Conditions governing promotion, transfer and cession of their functions and the actual independence of the judiciary from the legislative and the executive branch also fall within the state’s responsibilities.

CHAPTER V-DIRECTIVE PRINCIPLES OF STATE POLICY

This chapter contains ideals towards which all organs and agencies of the state, citizens, organisations and other bodies and persons should strive to achieve in applying or interpreting this Constitution. Even though these ideals are not enforceable in law, the objectives are categorised into law enforcement, political, economic, social, foreign policy and independence of the judiciary. Duties of a citizen, such as the duty to uphold and defend the Constitution, respect the rights, freedoms and legitimate interests of others, promote democracy and the rule of law, are enumerated.

 

Many of the rights that ought to have been included in the bill of rights have been omitted and provided for under the chapter dealing with principles of state policy (Chapter V) which are not enforceable in the courts, and are accordingly meaningless. For example, section 60(8) provides that the state shall promote free and compulsory basic education and ensure the provision of basic health care services to the population. The inclusion of these rights under the principles of state policy makes it difficult for the judiciary to enforce them, or for any aggrieved citizen to pursue them. This situation is worsened by the fact that other substantive provisions of the Constitution on welfare and socio-economic issues are couched in so weak a language that it would be near impossible to enforce them. Section 28(2) is illustrative here. It provides that subject to the availability of resources, the government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.

 

CHAPTER VI-THE EXECUTIVE

Section 64(1) states clearly that the executive authority of Swaziland vests in the King as head of state and shall be exercised in accordance with the provisions of the Constitution. The King is obliged to defend and protect the Constitution and all laws made under or continued in force by it. This Chapter again marks a departure from the 1973 Decree, which vested all executive, legislative and judicial power in the King. In line with the doctrine of separation of powers section 64(1) emphasises that such exercise of executive power by the King shall be in accordance with the Constitution. This serves to curtail any excesses on the use of such power. Under the Constitution, the King may directly exercise his functions or delegate to Cabinet Ministers, who shall also act as the King’s advisers as regards the exercise of his powers. The Constitution further provides for the appointment of a Prime Minister and a deputy, ministers and their deputies.

 

CHAPTER VII: THE LEGISLATURE

The Constitution portrays the system of government in Swaziland as a democratic, participatory tinkhundla based system, which emphasizes devolution of state power from central government to tinkhundla areas and individual merit as a basis for election or appointment to public office. Swaziland is divided into several tinkhundla for purposes of administration and election. Regional councils are established and are responsible for the co-ordination of economic development in the regions. Each region is headed by a Regional Administrator. The Regional Administrator is appointed by the King. Right to representation and the right to vote at elections are provided for. Special provision for the representation of marginalizes groups is made and in particular the issue of women representation. Qualifications and disqualifications as voter are provided for.

 

Tinkhundla are meeting places under customary law and now represent constituencies for participation in parliamentary elections. The Constitution further provides that parliament shall consist of two houses, that is, the Houses of Assembly and Senate. In terms of section 95(1), (a) membership to the House of Assembly is through ordinary elections and being voted into parliament. The elected members shall not exceed 65 in number. However since political parties are de facto prohibited, members of parliament do not represent political formations or particular ideologies, but represent their constituencies (tinkhundla). Members of parliament are thus elected to the house in their own right. An illustrative case is that of former prime minister of Swaziland and member of the Ngwane National Liberation Congress (NNLC) Mr Obed Dlamini was elected into parliament as an individual representing his Inkhundla, and not as a member of the NNLC. The word de facto is used here because the 1973 Decree, which banned political parties, is inconsistent with the Constitution and therefore null and void. The Constitution is silent on formation and joining political parties, but the right freedom of assembly and association implies the liberty to form and join political parties. However, a case is till pending in court where the promoters of a political party are suing the Registrar of Companies for refusing to register their political party.

 

The Elections and Boundaries Commission is established with the mandate of overseeing and supervising elections, the registration of voters and reviewing and determining the boundaries of tinkhundla areas for purposes of elections. The Parliament of Swaziland is established and it consists of a Senate and a House of Assembly. The Senate is to consist of not more than thirty-one members and the House of Assembly to consist of not more than seventy-six people. Supreme legislative authority is vested in the king-in-Parliament and accordingly such authority shall be exercised through bills passed by both chambers. A Parliamentary Service Board is established with the responsibility of ensuring proper and effective administration of Parliament. The ordinary life of Parliament is five years.

 

Membership of the House of Assembly can also be via appointment by the King, who has power to appoint 10 members (section 95(1) (b)), half of whom shall be female. Section 94(1) provides that members of the House of Senate shall not exceed 31 in number. Ten Senators are elected by the House of Assembly and half of these must be female. The King then appoints the remaining twenty acting in his discretion after consultation with such bodies, as he may deem appropriate. At least eight of these must be female.

 

Parliamentary legislative powers are reduced by section 115 that deprives it the authority to debate matters regulated by Swazi law and custom. This section undermines the very foundation and principle of constitutional law that parliament must be autonomous, having the liberty to debate issues within the jurisdiction of the kingdom. If customary law must change, the people must be able to do that through the appropriate machinery, which is parliament, as it is the case in open, democratic and civilised societies.

2008 ELECTIONS

Despite the coming into force of the Swazi constitution in 2005, the 2008 general election process was set in motion based on the 1992 laws, which clash with the national constitution on certain aspects. The Elections and Boundaries Commission (EBC) confirmed that it was going about its duties on the basis of the 1992 legislation. Laws relevant to the elections process in Swaziland are the Elections Order, the Establishment of Parliament Order and the Voter’s Registration Order – all enacted 18 years ago.

Two weeks earlier in Parliament, Prince David had hastily withdrawn the Voters Registration, Elections as well as the Elections and Boundaries Commission Bills without giving any reasons to the legislators of the withdrawal. The minister was supposed to table the Bills in parliament but when his turn to do so came, he withdrew them. Before his actions, there had been a debate in the House of Assembly on why the minister was supposed to table the Bills when the EBC had already announced the dates for the start of the elections registration. The Justice Minister’s withdrawal of the bills in parliament left the EBC with no option but to continue using the 1992 laws, which are still in operation – without any amendments. The amendments were necessary to bring the laws into conformity with the constitution. During the debate in Parliament, MPs expressed their anger at the then Prince and Prime Minister Themba Dlamini saying that they were being taken for granted. The MPs wanted to know who had given the EBC the right to announce the dates for voter registration when the law allowing them to do so was still to be debated in Parliament. Another MP said even the legislation that put the EBC in place and gave it its terms of reference was still to be debated in the House. To the legislators it was already a foregone conclusion that they were expected to pass the law, hence the EBC had gone ahead and announced the election registration dates.

The constitution makes it possible for the election of up to 76 members of the House of Assembly. The Establishment of Parliament Order only allows for 66. Section 16 of this law says the House of Assembly shall consist of as many members as there are Tinkhundla (constituencies), 10 members appointed by the king and the Attorney General as an ex-officio member. There are currently 55-gazetted Tinkhundla. The constitution says a person is qualified to be registered as a voter if he or she has attained the age of 18 and is a citizen or is ordinarily resident in Swaziland. Being ‘ordinarily resident’ in Swaziland refers to cases where that person has lived in or has been associated with a particular constituency for a period of not less than five years or is permanently resident in Swaziland and has relevant documents to that effect. The Voter’s Registration Order, on the other hand, says no person shall be registered in any Inkhundla unless he or she has actually resided in that Inkhundla for a continuous period of at least three months before registering. If that person has not resided within the Inkhundla, he should have retained his home there for at least three months.

The constitution says all aspects of the elections will be under the direct control of the Elections and Boundaries Commission. The 1992 law being used by the same commission still gives all power to the Chief Electoral Officer, known locally as Umphatsi Lukhetfo. This position no longer exists, as it became obsolete after the appointment of the EBC about three months ago. The constitution disqualifies people who are in arrears with their taxes (personal or business) from running for office as Members of Parliament (MPs). Section 96 (c) of the supreme law says a person qualifies to be appointed, elected or nominated as a senator or member of the House of Assembly if that person "has paid all taxes or made arrangements satisfactory to the Commissioner of Taxes. The law currently in use (Establishment of Parliament Order, 1992) does not have that provision. It only lists three qualifications, namely being ordinarily a resident in Swaziland, qualified for registration as a voter and having registered in any Inkhundla. These are not the only possible clashes between the constitution, which came to force in 2005 and the laws that were to be amended.

The Minister’s appearance before Liqoqo (King’s advisory council) was to explain certain provisions in the bills regulating the elections in the country. He had to explain why certain clauses were included in the draft Bills. Labadzala were not pleased with some of the provisions of the Elections Bill and felt that it gave the Elections EBC powers that they should not have. The powers include provisions that give the EBC powers to announce election dates and even be able to postpone election dates. It would seem the higher authorities felt that only the king as the head of state should have the mandate of announcing such important dates. The meeting took place at the Lozitha Royal Palace and a majority of the Liqoqo members were present including the current Prime Minister Sbusiso Barnabas Dlamini, who was a member then. Even though this exercise is interwoven with the entire elections process, its initiation does not have any bearing on the dates of either primary or secondary elections. His Majesty the King is expected to announce such dates. The king will do this in exercise of powers vested in him by the Elections Order, 1992.

Political formations and trade unions brought an application before the court not only challenging the constitution but also the election process. They wanted group representation to be allowed in terms of section 79 read together with section 25. They were also seeking an order declaring that EBC is currently not constituted lawfully. In the founding affidavit, the constitutional provisions and the important functions to be performed by the EBC, the requirements of genuine independence on the part of each of the members were of great importance. If it was not achieved, the objective and supervising processes such as free and fair elections and facilitating voter education would be compromised.

The Attorney General stunned many during the elections case when he told judicial officers that to determine the character of the country’s system of governance was way beyond their domain. In his submissions he said that section 79 of the constitution represents a fundamental choice by the people, a choice that individuals not groups or associations, may participate in the governance of the country. He further submitted that the section is not discriminatory, it lays down a principle, the wisdom or foolishness of which is not for courts of law to enquire into. The AG’s argument was based on the premise that the contentious constitutional provision was, in actual fact, the basis of the country’s system of governance, which he alleges was chosen by the inhabitants of the polity. He said the constitution of the country, which rests entirely on section 79 as its pillar, represented the "Swazi way of thinking", "It is the way of life of the people, or the soul of the nation." Dlamini seemed convinced that the relief being sought by the political formation was only a review under the guise of ‘interpretation’.

He told the court that the opposition’s argument that the controversial provision should be given a narrow interpretation when compared with section 25 (freedom of peaceful assembly and association), was misdirected. That argument seems to reverse the natural order of the constitution. It is not for this court to change that but the people. The AG said political parties and trade unions placed themselves in a situation in which they found themselves excluded from the process of making the country’s constitution. He said it was a position, which the progressives took presumably on principle, rightly or wrongly. He submitted that they submitted their right not to participate on the terms as provided. They exercised an option as they saw the situation. The AG argued that in participating as required, the political parties/trade unions would not have been compelled to be anything other than their individual, natural or selves.

The AG said the Constitution Review Commission (CRC) and the Constitution Drafting Commission (CDC) did not flout any provision relevant to constitution-making process. He submitted that there was no rule of law binding on CRC and CDC to ensure that the appellants were included in the constitution-making process. He submitted. It was enough that the appellants in their individual capacity like everyone else-could take part in the process. The AG also submitted that the progressives cannot have a legal standing for the challenge they had launched, whatever may be the position in other countries. He argued that there was no statutory basis for their claim.

The AG further contended that the claim cannot be based on the common law nor is it an inherent human right. In addition, it should be remembered that Swaziland is a Kingdom, not a Republic. In general, the court has no power to review any part of the constitution. The reason for this must be obvious. The court is itself a creature of the constitution. Where the court may review the constitution, it would be most reluctant to declare any part of the constitution as void. Of the cases cited by the appellants, none is to the effect that the court can nullify an entire constitution in the normal course of that court’s function. Where constitution provisions seem to be in conflict, the court will do its best to harmonise the operation of those provisions.

POLITICAL PARTICIPATION

The AG submitted that there is no provision in the country’s constitution, which allows political parties to participate in the elections. Dlamini told a High Court full bench that government was being accused of threatening to violate the trade unions/political parties’ rights guaranteed under Section 25 of the constitution. The said section only talks about peaceful assembly and association. Dlamini said members of political parties such as PUDEMO and NNLC can only participate in the elections individually and not as political groupings. He said the applicants’ argument is not based on the violation of Section 25 of the constitution. They don’t state that at some point the respondent (government) stopped the applicants from associating peacefully. The applicants in their papers want to be registered and recognised, but under which provision of the constitution it is stated that they should be recognised as political parties? The AG continued to say political parties could exist, but “when it comes to public functions they have to come as individuals.” He submitted that there was no provision in the constitution entitling members of the political parties to join the Elections and Boundaries Commission (EBC).

An argument that local courts were already privy to the fact that the country was now threading in a new democratic dispensation was advanced at the High Court. Relying on local case law, legal counsel for the organisations fighting for recognition as political parties said it was not only the constitution that allowed political parties but also even the courts have expressed such sentiments. Citing a judgment in a case of ‘MPD and others’ he said the court declared that we are now in a new dispensation. One must assume that there was no democracy before but now it is in existence. Counsel said the implication created by the constitution on representative governance was starkly relevant to allowing people to choose these through political parties. His sentiments were shared by human rights lawyer, Thulani Maseko, who also emphasised that the constitution was a document, which respected democratic norms. Basing his argument on the text’s pre amble, he said it was clear that the constitution did pay allegiance to democratic values. He argued that once we accept that we are democratic, there are certain standards that need to be met.

Counsel spelt the tenets of democracy as respect for human rights, good governance and political pluralism, which means to allow political parties to exist. He strengthened the case for political parties by referring to international instruments, of which the country is a signatory. The legal practitioner said the domestication (by adopting the Bill of rights in the constitution) of these international instruments created an obligation for the state to adhere to their stipulations. Counsel urged the court to consider a section in the constitution, which promotes fundamental rights. He said where two sections were in conflict the court should give preference to the one promoting fundamental rights. He submitted that section 79 of the constitution does not allow Swazis to exercise their rights by forming political organisations. Therefore, Section 79 must be read in such a manner that it is not in conflict with Section 25, which provides for the Bill of Rights. Where there is a conflict of sections, the section that promotes fundamental rights must be given preference.

He said prima facie (on the face of it) that the trade unions/parties (applicants) had shown that their rights were being undermined. Whilst we may elect individually under Section 79, it does not mean other forms of democracy are prohibited. Maseko said the parties had made out a case for recognition and registration. People have a fundamental right to join or form political formations. The tinkhundla system is a concept of a political party-Imbokodvo movement. If Section 79 of the constitution allows that, why are political parties being shut out? Furthermore, Counsel submitted that the CRC and CDC being creatures of statute exercised statutory functions, as public functionaries are, therefore, reviewable. A statutory body has to exercise its powers in a manner that does not offend the statutory provisions and where they fail to do so and their actions are subject to the scrutiny by the courts. Legal Counsel further mentioned that while the constitution-making process may be said to be an inherently political exercise, it did not mean that the CRC and CDC operated and derived their authority outside of the constitutional framework as provided for under the 1973 Proclamation. When appointing the CRC and CDC, His Majesty the King was exercising executive constitutional powers he believed were vested in him by the Proclamation. That the CRC and CDC could not have exercised powers as if they had no legal source. It is on this basis that the appellants contend that they misconstrued and misconceived their powers, as alleged. He said the CRC and CDC exercised powers conferred to them by the King exercising constitutional powers as the executive. Maseko added that, therefore, their exercise of such power had to conform to the provisions of the Proclamation being the higher law of the land.

He submitted that both entities are reviewable. Any suggestions to the contrary would lead to the erosion of the Rule of Law and thus undermine the effective administration of justice. He said the progressives’ claim and relief was based on the contention that the CRC flouted the provisions of the law.

Addressing chiefs and traditional authorities at Siteki Hotel where the Elections and Boundaries Commission held a civic education the Chairman of the Elections and Boundaries Commission Chief Gija [[6]] Dlamini he reiterated the AG’s statement that political parties remain illegal in Swaziland. He assured chiefs that the clause allowing freedom of association in the national constitution merely talks about other formations, not necessarily political parties. He made an example of Mbabane Highlanders as just one of the many associations people can freely associate with. He said the national constitution did not say people would go to the polls by political associations. He emphasised that people will be elected as individuals. If the community picks an individual and feels he qualifies to represent them, they can just vote him in, as long as he or she is Swazi. The chairman explained that in parliament no one could claim to be representing a political party. Political formations and trade unions lost the case.

ELECTION CHALLENGES

Even though the dates were announced on short notice, thousands of eligible and ‘non eligible’ voters converged at various chiefdoms and selected venues for the first day of the nomination of candidates for the upcoming elections. The exercise itself proceeded smoothly in a number of areas that had scheduled to start, however, for many other areas, controversy and confusion was the order of the day. Some of the problems that elections officers had to surmount were rowdy voters who learnt on the day that they were ‘not eligible’ to vote. They were later allowed after the Elections and Boundaries Commission (EBC) allegedly admitted it made a blunder. In other areas, such as Kwaluseni, land or chieftaincy disputes delayed the nomination process, while in some cases, elections officers were forced to postpone. In Northern Hhohho, a number of nominating venues had to cancel due to problems that came to the fore just before starting time, while some delayed but proceeded later.

The EBC offices at Nkhanini were inundated with calls from elections officers and returning officers who came across different kinds of problems, some of which forced them to postpone. Although the Vote for a woman campaign seemed to have been welcome in some constituencies, men dominated the majority of nominations, with the youth claiming a sizeable portion. While some of the people were rejected as nominees because they were currently employed in public officer some who are in similar positions were nominated without a fuss. Although some had to show proof that they had resigned from employment, one teacher from Nhlangano lied to election officers, claiming that he is employed in a shop in Nhlangano. His issue was referred for probing by the relevant authorities. 

Probably, the biggest turnout was witnessed at Ezulwini Roman Catholic Primary school, where throngs of residents had assembled from as early as 7am. By midday, the school grounds were milling with people from all walks of life who were intent on, as the Elections and Boundary Commission would say, charting their own destiny. The Lobamba the polling station at Emahhulumbeni saw a poor voter turnout by mid-morning; however, the presiding officer mentioned that most people were expected in the afternoon after they are released from their various workplaces. As if to confirm this, a group of workers from the King’s Office were seen busy with renovations at the site, probably preparing for the coming Umhlanga Festival. Most maidens are accommodated here during the weeklong traditional pageant. Though there was laughing and chatting amongst the voters outside the polling centres across the country, inside there was a lot of tension. In one polling station, the nominees were found sitting in the same place chatting and greeting people but here it was a different case. Each nominee was sitting on his own facing away from the others.

 

CUT OFF TIME IGNORED

The Elections and Boundaries Commission (EBC) had announced that all polling stations were to close the door when the clock hit 5pm. However, that was not adhered to as most polling stations within greater Manzini periphery operated into the night. At Mbekelweni, a man announced that everyone should be inside the spacious yard of the centre that was used by as a polling station. However, many were still hours away from the actual doors of the polling station. Some voters observed that put the legality of the elections to question because less than half had already voted by 5pm. The majority milled within the yard patiently waiting for their turn to arrive. The same was true at Zombodze High School where voting continued even on the following day. No efforts were made to close the large area belonging to the Manzini Nazarene mission where a polling station was house at Manzini Nazarene High School.

 

In MPULUZI voting was conducted at Mgotjane Primary School and pandemonium was also the order of the day. Voters were kept waiting in long queues for hours. Voters were told to stand on line as the presiding officer rushed to Nkhanini to get ballot papers. A voter who had been nominated for the MP candidacy complained that they will lose votes as a result of this. The voter had left home as 6a.m. and travelled over five kilometres to vote. At EVUSWENI tension and confusion engulfed Joppa Primary which was a polling centre for Evusweni chiefdom when close to 3000 voters had been made to wait for close to five hours without any explanation A number of the voters having been patient for all those hours were heard complaining that the way things were organized it seemed there were people wishing to have the Tinkhundla system discredited. One resident complained that the EBC should not have rushed the elections if it was not all ready. Voters had arrived before 7am and braved the sun but even by 1pm voting had not started. Others complained of hunger, saying they arrived in the morning with the hope that the casting of votes would only last for minutes

 

MANZINI SOUTH

Aspiring members of parliament for Manzini South petitioned the Chief Gija-led Elections and Boundaries Commission on the day the voting process was to begin. The quickly organised petition was received by the Returning Officer. In a nutshell, the petition raises the aspiring MPs who are deeply concerned about what they claim is glaring means to cheat by an outgoing MP of the area. The MP was accused of collecting over a thousand voting cards from gullible members of the community, especially the elderly during the registration process. It was alleged to have said the move was aimed at helping in the safekeeping of the voting cards, something her opponents feel was sheer cheating. A member of the community police is said to have made the discovery and notified relevant authorities who, however, failed to act.

 

The aspiring MPs wanted the former MP investigated and stopped from participating in the process because of the above allegations. She was also accused of campaigning way before the election process began and allegedly intensified her campaign as days drew nearer. Her competitors and their supporters also said she brought an army of youths from Kakhoza (a notorious location) to the polling station on the weekend to terrorise her opponents and those who support them. They blamed the sporadic fights which characterized the day at Nazarene polling station to these youths, who were said had been served with drinks throughout the previous night. However, it was alleged that Sithole reported the matter to the police who did not take any action against the alleged culprit. The former MP was allowed to contest the elections but lost out. 

 

MBEKELWENI

A group of angry voters at Mbekelweni complained about the entire voting process saying it was marred with cheating and sheer fraud. The women accused the local community police who were told point blank that they were a corrupt lot, hell-bent to see a certain aspiring member of parliament win by hook or crook. The women said members of the community police were smuggling a number of people into the polling station. These, they alleged, were those who were known to support the candidate. And they blamed the stagnant three hundred metre long queue to the fact that some people were being smuggled into the polling station so that by the time it closes aspiring MP would have collected enough votes. Two members of the community police who were arranging the queue blushed as the women fired at them. The aspiring MP could hardly sit down as he was all over the show.

 

MANZINI NORTH

Confusion, despair and anger characterized the mood at Makholweni (Hillside High School) on Saturday when voters were told that the voting exercise has been suspended until the next day (Sunday). The crowd, which started arriving as early as 6am was finally, told the sad news just before lunchtime. Making the announcement was Manzini Station Commander Superintendent who started by apologising for the delay, which he said, hit the entire country. The senior police officer did not tell the agitated voters that the whole thing was caused by the lack of ballot papers that were still being processed by the printers. The returning officer and many others were at the printers waiting for the ballot papers before he finally decided to call off the process. In the meantime, his officers at the polling station were endured all sorts of insults from the agitated voters. The situation was threatening to explore into a chaotic scene.

The senior police officer appealed to voters to return the next day. Disgruntled voters raised a number of concerns including the fact that they were hungry and that no one bothered to explain the real situation on time. Many threaten not to return, saying they had spared the day for other things after it was announced that voting was Saturday. Aspiring members of parliament (MPs) said the postponement was a great loss to them. They said a sizeable number of their prospective voters would have difficulty returning for the exercise the next day.

SPORADIC FIGHTS

Voting at Manzini Nazarene High School was characterized by sporadic fights and acts of violence amongst the throngs of voters who had waited since morning to cast their votes. Like in many other polling stations, the queue started moving at Nazarene, and many had grown edgy. Community police had a busy time trying to bring order as many, especially the youth tried to force their way into the polling station. The situation worsened in the afternoon, a thing that forces the police to close the door leading to the polling station. A fight nearly broke out at Lobamba Lomdzala when supporters of Marwick Khumalo clashed with those of Lynette Charles. DJ Nice, who lost a court case against Marwick, was said to have thrown his weight behind Lynette Charles and was her agent. At Zombodze Emuva the voters waited until 3pm when the elections officers told them to return the next day because the balloting papers ran out. Upon commencement an impi of supporters of defeated Titus Thwala tried to stop the elections – but heavy army and police presence stopped them dead on their tracks.

 

MBILANENI

Indvuna (headman) of the local area who was among the aspiring candidates for the Member of Parliament seat was temporarily ‘demoted.’ His position has been given to another on acting basis. Thikazi was removed from taking an active role in the activities of the Umphakatsi until the elections are over. It has been gathered that even the Elections and Boundaries Commission was briefed of the ‘new’ Indvuna of the area. It was also gathered that the EBC had raised concern with the Shiselweni Regional Administrator Paul Dlamini in that, as someone with influence in the Umphakatsi Thikazi had to be demoted so that he fully concentrated on the elections. Headmen, according to the new constitution, are allowed to stand for the elections.

 

MLIBA

THE extension of the voting days came to the rescue of eager potential voters at Mliba polling station. The over 2 500 voters could not all vote on the stipulated voting day (Saturday) forcing the Elections and Boundary Committee to extend the voting process to the next day. The voters were allowed entry inside the Mliba police gate in stages as means to control the residents who were becoming impatient around 3:00 pm. The people were so packed such that one could not pass a ruler in between them; it was as if they were queuing to receive money. People were determined to cast their votes.

 

NKONKA

VOTERS came in their numbers for the primary elections at Nkonka umphakatsi and the elections were held at Matsanjeni Primary School in the Shiselweni region. Aspiring candidates include a former radio personality who’s a local resident. The same atmosphere was seen at Lavumisa Primary where the elections were conducted, business was booming for the vendors who were selling, amongst other things, ice bars. There was also a smooth progress in the Dinabanye as even the oldest women of the area came for the elections. However, when interviewed they said they were not sure what they gone there for. One granny who was found at the voting station said she was taken at her home by her grandson to the school and was not sure what would happen. Asked if she had registered for elections she said she only remembered having her fingerprints taken.

 

MZIMNENE

Residents under the Mzimnene community registered for the national elections in another man’s home. This is despite that in some communities; potential voters are registering in neutral stations such as Tinkhundla Centres, Police Stations, and Imiphakatsi. Since registration began the chief runner’s home has been a hive of activity, with residents flocking the place to register. Registration Clerk said that the decision to register at the Chief Runner’s home was taken by the area’s umphakatsi. An elder in the community said there was nothing sinister with having people registering at the Chief Runner’s home. This decision was taken by the umphakatsi, and the reason is that the umphakatsi is far and the old aged and the disabled may have difficulty reaching the umphakatsi to register.

 

The decision was taken in the best interest of the residents, and to ensure that everyone gets a chance to register and vote, the elder mentioned. Other voters, however, expressed concern that they have to undergo the khulekela custom (announcing one’s presence when approaching a homestead) as though they had gone to the homestead to beg for food or assistance. They condemned that such an exercise of national importance should be undertaken in the private premises of a mere citizen.

 

MBABANE

Resident and parliamentary seat hopeful, Jabulani Nxumalo says the non-operation of some registration centres in the city is election rigging in the making. Nxumalo said he was expecting residents of Corporation and surrounding areas to have a separate registration station. He says the normal procedure is that Corporation residents register at Mqolo Primary School, because they cannot be forced to walk about two kilometres to Msunduza Hall. The former Mbabane councillor said some people who were eyeing the parliamentary seat were manipulating the registration process by refusing to open up other registration centres. He further mentioned that someone who wants to be elected knows that her stronghold is at Msunduza, so she is throwing her weight around to see to it that other centres do not register. Nxumalo says he has also registered a complaint with Chief Gija, the Chairman of the Elections and Boundaries Commission.

HHUKWINI

There were tense moments at Nsukumbili High School under Hhukwini constituency where the likes of retired Nyandza High School principal Saladin Magagula contested the MP position. Due to the large turnout, the polling officers had to take voter IDs and would then call out people by name instead of them queuing as was the case elsewhere. Seated with former MP Sitezi Gama who served in the Sixth Parliament of 1993-98 tenure, Magagula and his other competitors kept a hawk's eye on proceedings in the classroom at Nsukumbili where the elections for posts of Headman, Constituency Councillor and MP were held. Also amongst the candidates for MP post under Nsukumbili chiefdom was Miss Swaziland finalist Winile Mamba who was perhaps the youngest of all. Irked residents who were over 1 000 kept shoving and shouting at the officers whilst awaiting their turn to be called out waited impatiently outside the voting area. Things almost turned nasty when some contestants were seen chatting away with some officers only to be restrained by the aspiring MPs who noted that such could not be allowed to go on.

 

DLANGENI

Elsewhere at LaMgabhi Primary School was former MP Quinton Zwane who was in the Eighth Parliament of 2003-08. He was in the company of David Lukhele, the former Principal Secretary at PM's office. Both men are contesting for the post of MP under Hhukwini constituency as well and hail from Dlangeni chiefdom. Things were relatively calm at S'gombeni under Ludzeludze Inkhundla. It was the same story at Vusweni chiefdom.

 

LAMGABHI

Voters at LaMgabhi ran for cover when a frustrated voter drew a gun and threatened to shoot the presiding officer and polling officers at Emhlangeni Primary School during the primary elections on the first day of voting process. An eyewitness said the man drew the gun after standing on the line for over four hours only to be told later that voting would not continue, as there were no ballot papers and no pictures of the nominees. After the announcement by the pressing officer that voting had been postponed to the next day; the angry voter uttered unpalatable words and drew out a pistol, threatening to shoot the officers. His main concern was that he stays at Manzini and had spent some serious money on fuel. The entire voting process here turned out to be a complete sham as angry voters were busy pointing threatening fingers at polling officers and demanding answers. After standing on the long line for over five hours, voters were finally told that the voting had been postponed to the next day.

 

EKUTHULENI PRIMARY

Whilst all this was happening, at the nearby polling centre at Ekuthuleni Primary where former MP Ntuthuko Dlamini had been nominated, scores of voters crammed the Grade 7 class to cast their votes. An uncompromising police officer displayed a totally hostile attitude towards journalists as he vehemently refused to allow them in. Ntuthuko himself was in a visibly pensive mood, not knowing whether or not he will occupy a seat in the Ninth Parliament.

 

NKHABA

A Gospel Group lead singer VusiShiba unsuccessfully registered his discontent in the way he lost in the primary elections. Shiba was nominated at Lotfokati Royal Kraal to stand for the Member Parliament position under Nkhaba constituency. The Gospel star in his founding affidavit filed at the High Court alleged that the eventual winner, Musa Malaza, breached the electoral rules. Shiba reflects that Malaza would now and again leave the compound they were made to sit in to avoid interacting with the voters.

 

Malaza would now and again sneak out of the house to mingle with the voters and campaign for their votes. I and the other candidates noticed this anomaly and reported it to the presiding officer who called him back. This according to Shiba gave Malaza an unfair advantage, as he was able to canvass for more votes. In his responding papers, Malaza told the court that he obtained permission from the presiding officer before moving out to answer the call of nature. The court upheld the argument raised by Malaza and was of the view that Shiba’s evidence was not enough to implicate the respondent. 

 

NTFONJENI

A former journalist’s last bid to have a go at a parliamentary seat was foiled by the High Court. The former journalist’s application for the nullification of Pastor Henry Dlamini’s victory was dismissed by the High Court. The former journalist had filed an urgent application challenging the legitimacy of Dlamini’s participation in the Member of Parliament race. He alleged that Dlamini was a civil servant by virtue of being a teacher and held such office when he was nominated at Ntfonjeni constituency. Matsebula in his affidavit alleged that Dlamini failed to produce a letter of resignation.

This he said was against the Elections Order of 1992. In his evidence brought before court, Dlamini said he resigned within the stipulated time and the letter was issued before the nominations date. Matsebula, however, challenged the authenticity of such a letter. The Teaching Service Commission (TSC), however, testified to having issued such a letter to Dlamini. The Teaching Service Commission revealed before court that Dlamini’s resignation was approved in a meeting held on July 29 and a letter was issued on the 1st of August. Dlamini, however, only picked the letter on the 4th and this according to the learned judge was within the dictates of the stipulated regulations

LWANDLE

Voters of this area were left disappointed after they could not vote in the primary elections. People of Lwandle Chiefdom under Chief NkamaneMkhatshwa were turned back after it was discovered that there was an error in the balloting papers. The voting did not even begin here after the discovery. The error with the balloting papers was that an Indvuna Yenkhundla nominee picture was in the Member of Parliament balloting papers.

The error was discovered before the voting could begin after the nominee alerted the presiding officer that she had been placed in the wrong category. According to Lwandle head the people were dispersed after the presiding officer consulted with the EBC. The people were told to leave because the balloting papers had been ruined; the presiding officer then told us that the elections were postponed to the following week. The headman said though later on the day he got a call, which was alerting him that the elections were continuing on the next day, so the people from the chiefdom had to convene at the polling station. When called on the following day headman said everything was going well as the residents had adhered to the call to come again for the elections. He said though he was not sure on whether the turnout would be same as Saturday’s since it was a Sunday and most people would be in a hurry to get to church.

SIMUNYE

It seems the problem with the balloting did not only haunt the Lwandle chiefdom as in places like Simunye polling station there were nominees missing in the Bucopho position. However, in Simunye the elections proceeded smoothly it was only the Bucopho position that was not dealt with on Saturday.

 

MKHIWENI

There was pushing and shoving as the youth who seemed to be in a hurry forcefully made their way through to the door to cast their vote. Over 1 000 voters crammed the Sidvokodvo Nazarene Primary School at the polling station for the Kutsimuleni Chiefdom under the Mkhiweni Constituency. The elderly people who had queued were pushed to the back as the youth jumped the line. Though the few police officers who were there tried to control the situation, the youth continued to be a menace by jumping the line. Other people, especially the youth, were heard grumbling about the slow proceedings yet the queue was getting long.

 

BHUNYA

In an incident that exposed security inefficiency within the Royal Swaziland Police (RSP), a fuel tank for the Bhunya Police Station vehicles was filled with water under unclear circumstances. The incident, which has fuelled speculation about the elections being sabotaged, was only discovered in the morning when the vehicles, which were supposed to transport elections equipment to various voter registration points, could not move after the cars had been filled with the water. About five registration centres were affected, as they had to wait while the police organised alternative means of transport. The affected areas were chiefdoms under the Sandlane, Mangcongco and Lamgabhi constituencies. The other areas were Zondwako and Bhunya registration points.

Nobody knew that the three vehicles had been filled with water and how. It only became apparent once the cars’ engines didn’t work after the ignition had been turned on. Two of the cars stopped just outside the station’s gate. The third one could not start. The source said nobody could explain how the water got into the petrol tank and in such a quantity. What made the incident even more baffling was the fact that there was no rain that could have brought the water into the tanks and the door was securely closed. A traffic car was used to transport the equipment, which included documents, to the registration sites. A kombi from the Elections and Boundaries Commission (EBC) was requested to take the documents to the other centres.

NHLANGANO

Mabonabulawe and Ndushulweni Chiefdoms continued to be problem children of the elections process. Voting was nullified at Mabonabulawe, while it was postponed again at Ndushulweni.Mabonabulawe is under Shiselweni I Inkhundla, while Ndushulweni is under Ngudzeni Inkhundla. According to former Shiselweni I MP Vusi Sithole, the Presiding officer at the Chief’s Kraal told them everything had been nullified because there were many elections errors. He did not state the blunders but only said another date will be availed and voters should come back again. This was despite that the election process was being postponed for the second consecutive time. At Ndushulweni, voters protested and toyi-toyied after it was announced the process had been postponed for the second time. This was due to non-arrival of ballot papers. A vocal member of the youth who was baying for blood of the elections officials alleged that the presiding officer lied to them. Voters started arriving as early as 7am as per the announcement but by 11am elections officers are alleging that the car was driving down Malagwane hill to bring the ballots (over 100km away from the voting area).

At Mlindazwe members of the public were shocked to find what can be best described as insults to the monarchy and government written on the wall where they were to register for the upcoming elections. What was written cannot be printed due to their contemptuous nature. It is believed that those responsible did their writing on the night. Pamphlets allegedly belonging to a banned political party were found thrown inside the room. Part of the massage on the wall, which is also included in the pamphlets, called for residents to boycott the upcoming elections.

NGCULWINI

At Ngculwini Manzini Regional Education Officer Mduduzi Nkambule stood for the election even though he did not present a letter from his employer allowing him to stand for the election. The other contestants vowed to take the matter to court because they protested in the first place and were told that the letter would be available on Saturday.

 

MANGCONGCO

Drunken youths caused a scene when they arrived to vote with their Autumn Harvest wine bottles.

 

NKALANENI

There was a mood of annoyance at Nkalaneni when it was discovered there were no ballot papers - and that these papers had been mistakenly sent to Nkalashane.

 

DVOKOLWAKO

At Dvokolwako, a snake was killed after it proceeded to vote against the wishes of the majority.

 

THE ELECTION PROBLEMS

The unusually huge turnout 2008 election can be attributed to intense behind-the scenes campaigning by the candidates. Voters had needed no second invitation to go to the polls after they were induced with meat from cow heads, booze and other perks. For some it is a process to vote or be voted for -for others this is a desperate career move as they have either retired from their jobs, taken leave of absence because of the calling card - E21 000 month salary for being MP. As a result of the huge turn-out, a number of voting centres ran out of balloting papers on the first voting day - needing the election process should to continue in the next day.

The primary elections went very wrong in a number of polling stations where some candidates came out with allegations of electoral fraud and some polling officers proving their ignorance of the regulations. As a result, there was a flood of court applications, where some candidates were contesting the eventual results, while in other stations there was a shortage of election material like ballot papers. Further compounding the problem was the fact that the primary elections could not be concluded in a single day, and the voters were asked to return the following day. However, many candidates allege that most of their voters did not return the following day, claiming that they were held up by business they could not do on Saturday.

 

During and after the elections the high court was constantly flooded with new applications, which sought to stop, disqualify or nullify an election process. In the current parliament some got there because of court victories whilst others lost their cases and could not make it to the August house. As all these events unfolded the EBC watched helplessly. For 2013 election the EBC should step up efforts and ensure improvement in terms of organization, civic education, trained human resource and equipment. If the conditions remain the same as in 2008 nothing will come out right.

 

The EBC should learn from the 2008 elections blunders. A clear system of checks and balances must be developed. The number of voted, spoiled ballot papers, unused ballot papers must tally with the registration numbers. In order, to run the elections, there is a need for a board/commission that manages, operates and controls the election processes. This group of people must be totally independent from the political ideology and philosophy of government and other political groupings. The EBC falls short of these requirements. This activity needs funds and human resources to carry out the processes. Besides, this group must have a legal framework in place to help guide them in the performance of their duties and responsibilities. Advance voter registration processes use information communication technology (ICT), but even then the built-in systems have some verification tools and condition to prevent wrong voting by unqualified voters. ICT also helps in the quick issuing of the elections results with meaningful tabulation and statistical analysis. Voter registration and election are voluntary in nature but there are few countries that have legislation and mandating all citizenry at a certain age to register and vote. In this case, one can vote for a person or spoil the ballot paper.

 

Furthermore, elections be they local or national are guided by the constitution, pieces of law and or byelaws or regulations. These are there to legalize the management and operations of the elections processes. Let us look at the laws that have been used in the running of the past as well as the 2008 elections, some of which are still operational. These elections were run under the full control of the April 12, 1973 decree turned into a constitution. These were under the King’s Order-in-Council, 1992; The Establishment of Parliament of Swaziland Order, 1992, Elections Order, 1992 and Voter Registration Order, 1992.

 

CONTRADICTIONS

The July 26, 2005 Swaziland Constitution ushered in a new order on how to do things. The Establishment of Parliament of Swaziland Order, 1992 was copied into the constitution. Some clauses of the Elections Order, 1992 and the Voter Registration Order, 1992 are found in the constitution. All the reasons that one reads in the Voter Registration (amendment) Bill 2008 and the Elections (amendment) Bill 2008 must do it in conjunction with reading the Principal Act/Order and the constitution. The amendments were hurriedly drafted and are bound to cause confusion and contradictions with the constitution. Therefore, the amended bills must retain the original names, that is, Voters Registration Order and the Elections Order.

 

However, very unfortunately, the amendment bills have failed to tighten the screws against corruption and rigging. There is nothing as painful as losing elections where rigging was openly and comfortably carried out without any finger being raised. Both the constitution and the principal order have not helped to reduce or eliminate corruption and rigging, especially in the forthcoming elections. It is not enough to sing the outdated chorus of hoping to have free and fair elections without coming out with laws and regulations to support the pronouncements. In the previous 2003 elections, many unprintable actions were performed to get the people where they are to date, and others lost through rigging. There are those who were carrying bundles of voter registration certificates, and asking anyone to take and vote with a reward of one or two drinks or whatever.

Many even had registered voters who did not belong to that Inkhundla or ward and others utilized the services of nationals of our neighbouring countries to vote for certain candidates and they were promised big rewards. Just how many members of Parliament awarded certain voters for winning the 2003 elections? The architects and beneficiaries of rigging can tell better stories of rot than can ever be printed. One was hoping that the voter registration certificate will have some form of mark, picture of the voter to help the polling officer to verify the identity of the voter. If this is not available then the voter registration must only use the Personal Identity Number (PIN), which should also be used at the polling time. With the drive by our Parliamentarians in these past four years to have the PIN, it is unbelievable that there are many Swazis out there without the PIN. These conditions must be backed by laws and regulations, not just by pronouncements. In addition, let us look at some of the existing laws, the issue of ordinary ballot paper clause 31 of the Elections Order that the polling officer checks the voter registration certificate number and the name against the voters roll and that the voter has not voted and then the ballot paper is issued.

 

AMENDMENT

The picture of the voter is not in any way referred to in this clause. Therefore, if picture is to be used as evidence then clause 31(1a and 1b) must be amended to that effect. Forms, stationery and equipment for polling stations clause 17, these items listed here do not include fingerprints reading machines. Therefore if fingerprints were to be used to check, then clause 17(1) must be amended to show that condition. The second schedule must be amended to be in line with changes and the constitution. Both the Voters Registration Order and the Elections Order should have been amended properly to be in line with the constitution. As it is, everything is law unto itself, a dangerous operation indeed for successful elections.

 

Now, can the unconstitutionally appointed Elections and Boundaries Commission (EBC) provide the electorate checks and balances against rigging of the forthcoming elections? The election of iNdvuna yeNkhundla is becoming a mysterious issue, it is not in clause 87 of the constitution and is subjected to many qualifications yet nothing is ever said about the qualification of the Member of Parliament and bucopho, why?

 

By the way, do the supporters of the Tinkhundla operations differentiate between Tinkhundla and government? Government accommodates the needs of the nation, hence operates above party politics or system. Who is the head of Tinkhundla operation? However, let us briefly look at corrupt practices and other offences as they appear on part II, clauses 63 through 71 of the Elections Order, 1992, to appreciate that at times the law and regulations cannot implement themselves, hence the need to have capable and reputable people appointed and or elected into such positions of responsibilities. 

 

The corrupt practices and offences including; treating, undue influence, bribery, impersonating, penalties for corrupt and illegal practices, meeting on premises where liquor is usually sold, penalty in respect of certain employment, penalty for employment not allowing employee reasonable period for voting, prohibition of flags, speaking apparatus and sale of intoxication liquor, but many candidates have violated these, got away with it and others are already violating them with impunity, while EBC is still defending its legitimacy in its propaganda casual meetings and pending in the High Court. In addition, the preparations to the forthcoming elections pose, yet many questions thus creating a farther confusion. What would be the position of the current members of Parliament, when they register for voting? Will they write honourable in these forms, if not why not, is it their status? What influence will they have over the voter registration clerks in their Tinkhundla areas?

 

PARLIAMENT DISSOLUTION

What will stop the clerk from not taking orders from the honourable one? Clause 134 of the constitution; prorogation and dissolution of Parliament, clause 134(2) "subject to the provisions of subsections (3) and (7) Parliament, unless sooner dissolved shall stand dissolved five years less two months from the date of first meeting of the house following a general election" and clause 136 of the constitution; general elections, clause 136(1) "a general election of elected members of the house shall be held at such time within sixty days after every dissolution of Parliament, as the king shall appoint by proclamation published in the gazette". This means that nominations, primary and secondary elections shall be conducted within 60 days after dissolution of Parliament. Is this possible with all the logistics and processes? 

 

On the other hand, the Elections Order, 1992 (5); nomination of candidate, clause 5(8c) says that no candidate may be nominated for election whilst he is a member of the house of assembly. This means that if nominations were to be done before dissolution of Parliament, current members of Parliament would not qualify to stand for nominations.  This clause was not in the Elections (amendment) Bill, hence valid. Is the Tinkhundla heading for a crash landing or the confusion of the century? Why is the king subjected to this state of affairs? What are government and its leadership waiting for?  To have these leaders embarrassed by the many court rulings not in their favour thus costing the taxpayer huge amounts in legal costs! All these wrongs, in no way should discourage Swazis from taking and wearing their boots and going to the playing field and be agents of change.

 

I believe we need to come to a stage where we accept the importance of our vote, whichever way we exercise it. When a statement about the manner we wish to be governed for over five years! When we withhold our vote, we are still voting, except that in this case, we vote for a mediocre Parliament and government. It is us who determine the calibre of the Parliament and government we will have after each election process. Therefore, it is important to know that either way we exercise our vote; we make a statement of how we want to be governed. We have lived too long under incompetent Parliament and government. Let’s make 2013 a turning point. When we go to register, let us do so for a reason of bringing about change. There is power in our collective vote to save this country from the current downward spiral in which it finds itself. Whether we are talking of the grinding poverty or faltering economy, all this has to do with how we have been voting in the past. Therefore the importance of this year’s vote is that we must vote for high calibre men and women who understand the genesis of Swaziland’s problems. We need to vote for men and women who understand the status quo is unsustainable. It is too costly to maintain!

 

I am quite conscious of the fact that others will remind me that the electoral process is not one which could be said to be free and fair"! I am the first one to admit that these elections are far from being free and fair. They are a farce. However, having said that, one needs to acknowledge that either the clumsy way these elections are managed, there are no open violations like preventing certain people from participating other than that it recognizes individuals as opposed to political parties. However, there is nothing stopping a political party mobilizing for his/her candidates. There is absolutely nothing wrong, which is why Sibahle will contest these elections, and hopefully, beat the traditionalists in their own game. To me that is being creative, and that is what is missing in our politics – creativity.

 

However, in order to move forward in all this, we need a resolution of the confusion over which law will govern these elections. We now have a constitution, which has its specific demands on the management or conduct of the elections. First, there should have been the demarcation of the Tinkhundla from the current 55 to 66. This is an important exercise if we are to ensure equitable representation of the various smaller Chiefdoms. Consider Shiselweni 1 Inkhundla, which brings together the vast Emkhwakhweni chiefdom with the smaller Manyandzeni and Mchinsweni (Hlophe of Emantambe area). Since 1993, this Inkhundla has elected a member of parliament from Emgazini only, not because there are no capable men and women in both Manyandzeni and Mchinsweni. Therefore, the demarcation exercise would have resolved this problem.

 

The next consideration is one of free and fair. Conditions on the ground have not been created such that aspiring members of parliament should have been freely canvassing for votes, and presenting their programmes if they were to be elected. Of course I know that this is deliberate. The ruling elite want to somehow control the electoral process so that it produces the kind of calibre of parliament they can always manipulate. If you do not believe this, all you have to look at is the struggle between Prince David and Lozitha Royal Palace. While Prince David is attempting at making the electoral laws conform to the Constitution as well as to the Convention and Protocols Swaziland has ratified, Lozitha Royal Palace wants the whole thing controlled by the King’s office – thus depriving it of the independence it should enjoy. That to me is one of the major worries about these elections, but notwithstanding this, boycott still remains a non-viable option, if we must arrest this situation, of misrule at some point. Therefore, to those of you who have decided to vote, go out there and vote for change in our politics! Vote for change in the manner our resources are being utilized or simply abused for the benefit of the ruling elite. Let us not for vote for individuals simply because they are throwing us lavish parties at this time to steal our votes! Let us go out there and vote for substance, ability and proven experience. Above all, let us go out there and vote for an end to impunity. Please, vote for change in 2008, Swaziland needs your vote!!

 

CHAPTER VIII: THE JUDICIARY

The Judiciary of Swaziland consists of the Superior Courts i.e. the Supreme Court and High Court and such other specialised, subordinate and local courts or tribunals as Parliament may establish. The Judiciary is vested with all judicial power and accordingly no organ or agency of the Crown shall have final judicial power. The independence of the judiciary is guaranteed and as such no authority shall interfere with judicial officers in the discharge of their judicial functions. To give effect to the independence of the judiciary, organs or agencies of the Crown are required to give the courts such assistance as the courts may reasonably require protecting the independence. The Chief Justice is the head of the judiciary with the added responsibility of making rules for regulating the practice and procedure of the superior and subordinate courts.

The Supreme Court is made up of the Chief Justice and not less than four other Justices and is the final court of appeal. The Supreme Court has supervisory and review powers. The High Court being a component of the superior courts of Swaziland is made up of the Chief Justice (ex officio), not less than four justices and other such justices of the Superior Court of Judicature as may be assigned by the Chief Justice. The High Court has unlimited original jurisdiction in civil and criminal matters. It also has appellate and revisional jurisdiction. Added to that the High Court has power to enforce fundamental human rights and freedoms guaranteed by the Cofnstitution and to hear and determine any matter of a constitutional nature.

Justices of the superior courts are appointed by the King on advice of the Judicial Service Commission. Qualifications for appointment as a justice of the superior courts are set out. The tenure of a justice of the superior courts is guaranteed to that extent a justice shall vacate office at the attainment of the retiring age unless the appointment is sooner revoked following a stated procedure and circumstances. The issue of appointment of justices on contract is provided for, but such appointment to be done for a period of seven years after the commencement of this Constitution. The Judicial Service commission is established and its functions are spelt out.

The Constitution provides that justice shall be administered in the name of the crown by the judiciary, which shall be independent and subject only to the Constitution. The judiciary shall consist of superior court of judicature comprising:

  • Supreme court
  • High court
  • Specialized subordinate and Swazi courts or tribunals exercising a judicial function as parliament may by law establish.

 

The judiciary has jurisdiction in all matters civil and criminal, including matters relating to the Constitution, and such other jurisdiction as may by law be conferred on it. The superior courts are superior courts of record and have the power to commit for contempt to themselves and all such powers as were vested in a superior court of record immediately before the commencement of Constitution. 

 

INFRINGEMENT ON JUDICIAL INDEPENDENCE

Very wide powers are given to the head of state to appoint judicial officers by the Constitution. The king appoints the Chief Justice. Section 159 establishes the Judicial Service Commission (JSC), which consists of the Chief Justice, two legal practitioners of not less than seven years practice and of good professional standing. It also includes the chairman of the Civil Service Commission (CSC), and two persons appointed by the King. In addition to the first two members, the King appoints the chairperson of the (CSC) and the two legal practitioners. The King also appoints the chief justice. The head of state is thus directly responsible for the appointment of all six members of the JSC who in turn are answerable to the King in several respects. The head of state and his appointees have wide powers. These powers may be exercised to undermine the decision-making and institutional independence of the judiciary. The provisions relating to tenure and dismissal are also of concern for the lack of safeguards and independent procedures.

 

Of late the independence of the judiciary has been compromised by the granting of short term contracts to two of three acting judges of the High Court upon the expiry of their initial one-year contracts. They were given three-month contracts, which expired. They were only confirmed into full time tenure after the expiry of the three months contracts, but one eventually left the bench. Section 153(4) provides that an acting appointment shall not exceed a single renewable period of three months. This seems to have placed the government under pressure to convert the appointments to full time employment to alleviate the backlog of cases in the High Court.

 

Judges and other judicial officers ought to be hired on full time basis to ensure that they enjoy security of tenure to enable them to carry out their duties in a competent fashion without fear or favour. Judges on contract are under pressure particularly when their contracts are about to end. This is contrary to section 141 of the Constitution, which promotes judicial independence and frowns upon infringement on this independence by other organs of government.

 

Section 157 does not make the situation any better. Appointment of judges on acting or contract basis is detrimental to judicial independence since such judges are put in a state of suspense regarding whether they would be confirmed or not. In such a situation the judge may find himself/herself trying to please those with power to confirm him/her by deciding cases in their favour.

 

The exercise of the power of appointing judges of superior courts is crucial to the independence of the judiciary. One essential ingredient for judicial independence is the exclusion of political considerations in judicial appointments.  The Constitution provides that the King in accordance with the advice of the JSC shall appoint superior court judges. The JSC is the medium through which, it is expected, and appointments are to be insulated from politics. It may be worth noting the composition of the JSC here. The King has exclusive powers to appoint judges. From a practical point of view the King appoints judges in consultation with the Minister for Justice and the JSC. It would be fanciful to think that such appointments are free of any political considerations. In any event consultation is hardly a substitute for an independent appointing body; it can very easily be disregarded or made a matter of mere formality.

 

The involvement of the head of state in the process of appointing judges militates against an independent judiciary. Due to this fact such appointments cannot be free of political considerations. The Constitution still vests, arguably, judicial powers in the King. In a situation where the appointing body is politically influenced one cannot hope for an independent judiciary. People seeking judicial appointments might lobby with the executive with a view to being appointed. Thus such people would feel a sense of obligation to the executive and be inclined to favour the executive in the adjudicatory process. In addition, the composition of the JSC is compromised because some of its members are members of bodies whose aims are counter-productive to the aims of the JSC. Interestingly the owner of Big Game Parks, the company that administers the Game Act and CITES in Swaziland, was once appointed to the JSC despite his alleged involvement in the controversial amendment of the Act to give himself immunity from prosecution.

 

The independence of the judiciary is the firmest guarantee of the maintenance of the rule of law and protection of human rights. Independence can be secured if the judiciary is committed to sustaining free and democratic institutions. Personal attributes will serve to ensure an independent judiciary. An entrenchment of the doctrine of the separation of powers is of fundamental importance. This doctrine is fundamental for good governance. The situation created by section 106 and section 64 (3) is totally unacceptable and constitutionally wrong. Every branch of government is only constitutionally empowered to exercises the powers rightly conferred on it. This ensures the smooth operation of the government system. In a system where one organ is empowered to exercise more than it’s rightly constitutionally given power a conflict of interest always arise. The system of fairness and impartiality is greatly compromised and prejudiced. It’s of cardinal importance that the constitution only confers specific powers to specific organisations to ensure its smooth operations.

 

Judicial independence requires non-interference from the other organs of government. It is crucial that the judiciary operate within an open and democratic society, for without transparency despotic regimes tend to control the judiciary. Judges must not turn to horoscope to know if they have a future in their offices, they must be able to dispense justice without fear. The judiciary should also have the sole or exclusive authority to decide whether an issue is within its competence, without interference from the other arms of government.

 

In Swaziland the judiciary has been under siege for a long time. The executive arm has always been itching to cross the line of separation of powers, to the detriment of Swazi society. The outsourcing of the CJ post, which for a long time, has been held by expatriate personnel surely had an impact in which the judiciary went about their duties. An openly democratic society that embraces judicial independence will in fact craft an appointment procedure that is designed to ensure independence from the beginning. This also ensures that political considerations are kept to a minimum during appointment. This usually requires sound criteria and wide advertisement of posts within the judiciary. This hardly happens in Swaziland. Only adverts for the office of the DPP are usually run in the local papers. The open advertising is meant to allow the JSC to draw from a pool of well-known, eminent and competent candidates, and not to have an obscure person with political clout fitted in at the last minute. This also talks to the composition of the JSC itself.

The uncertain tenure of office in the sense that judges mainly, are appointed on the basis of short-term contracts keeps them guessing whether they would still be employed in a year’s time. The fact that the Chief Justice is usually, either an expatriate, or hired in an acting capacity compromises the effective discharge of his duties and justice in general. The historical factors such as executive interference in the work of the judiciary can also have psychological effects on the way the judiciary works. The selection process also has a negative effect on the performance of the judiciary, hence their independence.  Magistrates have more and more become invisible in most debates or discussions on independence of the judiciary. Yet they interact mainly with society’s lower class. It is crucial that these people continue to have confidence in magistrates and their court officials, and not view them as pro-police or pro-executive. To maintain this status can result in politicisation of the lower bench. Facilities and support comparable to those received by judges are crucial for magistrates to effectively carry out their work.

 

An independent judiciary cannot be attained in an undemocratic society. Democracy will ensure the rule of law, good governance, respect for human rights and it starts from the constitution with a justifiable bill of rights and respect for International law-International human rights law. Constitutional provisions alone are not sufficient. What is required on top of good constitutional guarantees is political will on the part of the executive, in other words respect for the rule of law. What happened in 2001 occurred under a government that refused to respect the rule of law, but instead went ahead to cross the thin lines separating the powers of the three arms of government. Swaziland’s constitution is 7 years old now. Coming from close to four decades of judicial uncertainty, it cannot be surprising to experience some resistance at first, as the executive itches to cross the line of separation of powers again.

 

For effective promotion and protection of human rights there is a great need for judicial activism from the bench. The courts must be alive to the human rights norms applied in open and democratic societies. They should have regard to the international human rights instruments that Swaziland is signatory to in all their decisions, even though Swaziland is a monist state. Courts must also be alive to constitutional and human rights issues in all matter brought before them. The court should be able of its own accord to raise human rights issues without these being raised by either party, especially in cases of unrepresented accused, or where counsel is lacking in appreciation for these human rights norms.

 

In Swaziland the judiciary has been under siege for a long time. Since the 2005 Constitution was adopted seven years ago several court judgments have been defied. The late governor of the Royal kraal buried his daughter against a court order. The husband was denied the right to bury his wife. The governor claimed that he was not served and that he did not see such order.

 

On 25 May 2009 Aaron Mkhondvo Maseko was woken up by a team of armed policemen accompanied by the overseer of the king’s cattle, Macaleni Dlamini. Maseko was served with a letter signed by the chief officer at the king’s office, which authorised the team to seize cattle from Maseko. In the letter, the king commanded that the late chief hand over all royal cattle in his possession. The chief was advised in the letter that some of the cattle were in the possession of Maseko and one Aaron Zulu. The beasts had been removed (allegedly) stolen from by Maseko and Zulu from the farm. From the tone of the letter, the cattle from Maseko or Zulu were to be collected from the chief’s home. The number of cattle to be seized was not specified and as it appears, it was left to the team to decide. All of Maseko’s 32 cattle found inside the kraal were loaded into trucks and taken to a farm owned by tibiyo takangwane-a royal investment company-in the Shiselweni region. To gain possession of his cattle, Maseko filed an urgent application at the high court and an interim order for the return of the cattle was issued on 26 May 2009.

 

A deputy sheriff had proceeded to the farm and seized the cattle. Along the way back, the sheriff was intercepted by police who stopped the enforcement of the high court order. The sheriff instituted contempt of court proceedings against the police and up to the time the time the Supreme Court concluded against Maseko, the application by the deputy sheriff was still pending in court. In the Supreme Court the CJ, who is from Lesotho by origin, did not make a big deal of the police involvement in the alleged aborted court order. He was of the view that the interim order was defective.

 

Maseko allegedly stole an undisclosed number of cattle from the king and despite that he had not tried or convicted by a competent court of law, he lost all his livestock. He had never been charged with stock theft but his cattle were taken away from him because allegedly belonged to the king. Despite there being a justifiable constitution in Swaziland signed into law by the King Mswati III on 26 July 2005, the presumption of innocence enshrined there did not protect Maseko. On being accused of a criminal offence Maseko was unconstitutionally presumed guilty and instantly punished. His guilt or otherwise may never be proven in a court of law.

 

PRACTICE DIRECTIVE NO.4/2011

The Chief Justice Michael Ramodibedi[[7]] issued a directive, Practice Directive no. 4/2011/, that courts should not admit cases against the king or Ingwenyama, directly or indirectly. The directive allegedly drew its strength from section 11 of the constitution. As a result the registrar of the high court refused to admit a case against the King’s office that had failed to honour its dues. Lawyers were not pleased with the directive, not for the first time though.

 

As if that was not enough the CJ came down hard on one of the respected judges of the high court. Justice Thomas Masuku was slapped with 12 charges, suspended from work and further fired igniting a judicial crisis that adds to the fiscal mess the country is already in[[8]]. Among the 12 misdemeanours Justice Masuku had been called to answer to is that he allegedly insulted the king in Aaron Mkhondvo Maseko v king, a month earlier. In that judgment Justice Masuku had dismissed a notion that the king could have spoken with a ‘forked tongue’ as implied [[9]]. Justice Masuku’s ruling in favour was overturned by the Supreme Court. CJ Ramodibedi sitting in the appellate court criticised Justice Masuku, a Swazi by birth, for the usage of the ‘forked tongue’ in reference to the king. In his judgment the CJ said

“Before closing this judgment, it is a matter of regret that I have to comment on the court a quo intemperate language used with reference to His Majesty the King. The use of ‘forked tongue’ with reference to His majesty the King is unfortunate. It is inappropriate language, which does not belong to the king’s own loyal subjects. Such language must be deprecated in the strongest possible terms. To say that I was horrified by the use of this language is probably an understatement.”

 

The suspension and dismissal of Masuku is a sad reminder of his trials and tribulations in April 2003[[10]] when he was callously transferred to the Industrial court because he was viewed as anti-government. During the then judicial crisis from November 28 2002[[11]] when government led by the current Prime Minister Barnabas Sibusiso Dlamini refused to abide by court decisions prompting the resignation of court of appeal judges[[12]], Justice Masuku had taken a position to defend the rule of law. His decision that rendered the Anti Corruption Commission dormant may have triggered government’s reaction against him. The Commission had to be re-established about three years later through an Act of parliament. The JSC could not intervene. It had been transformed into a traditional structure dubbed the special committee on Justice or ‘Thursday committee’ led by the then Minister of Justice [[13]], with the then CJ Stanley Sapire co-opted into it.

 

The Justice Minister announced the promotion of two lawyers into the high court bench. For some time lawyers boycotted courts presided by the two judges leading to charges of contempt against two attorneys. The President of the law society [[14]] was threatened with deportation together with an executive member [[15]]. They were alleged holders of dual citizenship. Justice Masuku successfully challenged the transfer at the high court. He then went on a sabbatical leave for two years.

 

While Justice Masuku fought to retain his position, his colleague Justice Bheki Maphalala [[16]] moved to the Supreme Court on promotion only after two years as judge of the high court. Justice Masuku is not the first Swazi judge to be frustrated in relation to his work. The first Swazi judge and respected attorney, David Lukhele, was frustrated out of his position. The late Justice Ben Dunn who was set to become the first Swazi CJ was ousted from his acting position while he was out of the country. On his return home, he found on the seat a ‘Swazinised’ CJ Stanley Wilfred Sapire who had warmly embraced the Thursday committee comprising traditionalists and politicians who emphasised that the king is above the law. Justice Dunn had placed himself in the firing line of Baka Ngwane [[17]] during the Liqoqo era from August 1982 to 1986. H e granted bail to high treason suspects who had opposed the removal of then Queen Regent Dzeliwe. He had ruled that the prosecution did not have a strong case against them.

 

In 1984 Justice Dunn had acquitted of sedition bank employee because there was no evidence linking her to the seditious pamphlets. It wasn’t a surprise that Baka Ngwane scuppered his steady climb to the CJ’s position. The acquittal of Mario Masuku on terrorism charges in November 2009 created anxiety in certain quarters. Justice Mbutfo Mamba delivered the verdict and in his view the prosecution did not have a case. The DPP Mumcy Dlamini[[18]], was called to explain the acquittal in writing before the JSC.

 

JUDICIAL SERVICE COMMISSION

The process of judicial appointments is a key factor in determining the independence of the judiciary. Section 160(c) provides that the Judicial Service Commission shall review and make recommendations on the terms and conditions of service of judges and persons holding judicial office. Section 159(1) provides that the Judicial Service Commission will be independent. Section 160(2) provides that the composition will be the Chief Justice, the chairman of the Civil Service Commission, two legal practitioners appointed by the King, and two persons appointed by the king. There is no criterion for the appointment of the two members.  This is a significant change, altering the composition strongly towards royal appointments. There is also no requirement for the King to take advice from the Chief Justice or any other independent person on the matter. Remarkably, the King is not even required to consult the President of the Law Society when deciding on the two Legal Practitioners to be appointed members.

 

This is unsatisfactory and at odds with similar provisions in modern democratic constitutions. It is unlikely to ensure the independence of the judiciary as required under the African Charter on Human and Peoples’ Rights. It is a good idea to have a body like the Judicial Service Commission responsible for the appointment of judges. However, what needs reform is the composition of such commission. Members of the commission, excluding the Chief Justice, should not belong to any organ of the state. Its composition must be broadened to include members from other organizations who may not necessarily be from the legal profession. This will ensure the exclusion of political considerations in judicial appointments. Given an appropriate composition, men who are not inclined to please political authority and working free from pressure emanating from that authority, the considerations should be the judge’s legal ability, courage, temperament, integrity and social responsibility.

 

The Chief Justice is the chair of the JSC. Under Regulations made in 1968 and incorporated into the Judicial Service Commission Act of 1982,[[19]] the Chair wields wide-ranging administrative powers and decision-making ability that perhaps should not ordinarily reside in a judicial officer, including the power to remove any judicial officer ‘in the public interest’. The central problem in Swaziland is, however, the fact that the JSC as currently constituted and mandated cannot be regarded as an independent institution that advises the King on the appointment, tenure and dismissal of judges. The first problem is its composition. The JSC is composed of the Chief Justice (Chair), the Chairman of the Civil Service Board and three appointees of the King, two of whom must possess some legal qualifications and experience[[20]].The Permanent Secretary to the Ministry of Justice and Constitutional Affairs is secretary to the JSC[[21]]. The Chair and one other member can form a quorum at a meeting. In effect, this means that the Chief Justice and the Chairman of the Civil Service Board can meet and take decisions, including that of advising the King on appointment or dismissal of judges.

 

The second problem and the central weakness with the JSC is the mandate given to it by the 1982 legislation. That legislation does not include judges in the definition of ‘judicial officer’. Only magistrates and the office of the Registrar and Assistant Registrar of the High Court or of the Court of Appeal are defined as judicial officers.[[22]] Consequently, a role of the JSC in dealing with the appointment of judges can only be identified by implication from its functions in the general clause that reads: ‘to advise the King in pursuance of any law providing for such advice by the Commission’.[[23]] As a matter of interpretation, the ‘law’ providing for advice from the JSC that has direct relevance here is the saved provisions in the 1968 Constitution.

 

The provisions of the Constitution require that the Chief Justice, judges of the High Court and Judge President of the Court of Appeal shall be appointed by the King, acting in accordance with the advice of the JSC. [[24]] Other judges of the Court of Appeal are appointed by the King, acting in accordance with the advice of the Judge President. [[25]] This style of legislating is, to say the least, rather unusual. The Judicial Service Commission Act of 1982, an ordinary Act of Parliament, was enacted with the full knowledge of the existence of the saved provisions of the Constitution. It would have been more appropriate to include a reference in it directly to the saved provisions of the Constitution. The deliberate vagueness of the legislation lends itself to manipulation and conflicting interpretations. The Minister for Justice can expand the definition of “judicial office” by notice in the Gazette, [[26]] but has not done so.

 

JUDICIAL TENURE AND REMUNERATION

Section 155 of the Constitution governs issues of tenure of office by judicial officers. Judges of superior courts may retire any time after attaining the age of 65, subject to a service of at least ten years. In case such resignation is not forthcoming, Supreme Court and High Court judges shall vacate office at the age of 75. By virtue of section 208(4), judges along with other specified office holders (such as the AG, the DPP and the Secretary to Cabinet) are paid their salaries and allowances from the Consolidate Fund.

 

REMOVAL OF JUDGES FROM OFFICE

A judge appointed on contract shall vacate office at the expiry of that contract. Such removal must be consistent with the provisions of section 158 of the Constitution. One of the requirements of section 158 is that a judge may not be removed except for stated misbehaviour or inability to perform the functions of office arising from infirmity of body or mind. The use of a nebulous term like stated misbehaviour is worrying. The King as the appointing authority after consultation with the JSC is also responsible for removal of judges from office. Where the King is advised that the removal of a judge warrants investigation, he shall refer the matter to the JSC. The King is obliged by subsection (5) to act on the recommendation of the JSC. However, these provisions can easily be and have already been circumvented by the appointment of judges on short-term contracts and refusal to renew those contracts upon expiry.

 

The then CJ Stanley Sapire was demoted to be an ordinary judge of the high court for hearing an application where the respondents defence force personnel were called upon to explain why suspects granted bail by the courts were not released. When the CJ challenged his demotion he was frustrated and forced to relinquish his position [[27]]. He resigned his position and left the country. Worse fate was to befall Industrial Court President Nderi Nduma. When his contract expired he was kept waiting and finally his contract was not renewed.

THE SUPREME COURT

Section 145 establishes the Supreme Court of Swaziland, which shall consist of the Chief Justice and not less than four other judges of the Supreme Court. The Supreme Court is the final court of appeal. The Supreme Court replaced the Court of Appeal that existed prior to the coming into force of the Constitution. It has supervisory jurisdiction over all courts of judicature and over any adjudicating authority.

 

THE HIGH COURT

Section 150 of the Constitution establishes the High Court, which shall consist of the Chief Justice (ex officio) and not less than four judges of the High Court, and such other justices of the superior courts of judicature as the Chief Justice may assign. The new constitution anticipates the creation of several divisions of the High Court as provided in subsection (6). The High Court has unlimited original jurisdiction in civil and criminal matters, appellate jurisdiction as prescribed by the Constitution or any other law. In this regard, the High Court accepts matters on appeal from the Magistrates’ Courts. It also has revisional jurisdiction.

 

The Constitution introduces a clearly spelt out human rights component to the jurisdiction of the High Court. In section 151(2), the High Court is granted jurisdiction to enforce the fundamental human rights and freedoms guaranteed by the Constitution. Thus, it can hear and determine any matter of a constitutional nature. Subsection (3) clears what hitherto was a murky zone by providing that the High Court has no original or appellate jurisdiction in any matter in which the Industrial Court has exclusive jurisdiction. Further the High Court’s power to deal with matters touching on Swazi law and custom is limited by subsection (3)(a) which spells out that the court has no original but has review and appellate jurisdiction in matters in which a Swazi Court has jurisdiction. The same obtains as regards matters in which a Court Martial has jurisdiction.

The judiciary continues to suffer from within and without. In the latest move to undermine the judiciary, royal orders from His Majesty King Mswati III were conveyed to the court by the Attorney General, himself a member of the royal family, to the effect that the court should immediately stop dealing with a chieftaincy dispute between ttwo factions claiming to be the rightful leaders of the Nkhaba Chiefdom[[28]]. The factions, one led by Dikida Shabangu and the other by Absalom Shabangu each claiming to be the legitimate Chief’s Headman, had their inner councils and followers, which they argued was legitimate. The dispute arose after the death of Nkhaba Chief Prince Bhekimpi in 1999. The matter would instead be dealt with under customary structures. Precisely, the matter will now be deliberated upon by the Liqoqo (the king’s advisory council) [[29]].
This violates the rights of the litigants to a fair hearing, to choose the forum that will determine their case and it further erodes any hope that the individual in Swaziland has any remedy in case of a violation.

The involvement of the traditional structures has never yielded any good results in such matters. Its composition [[30]] compromises the quality of verdicts they can give in dealing with matters of Swazi law and custom. Their mandate is not even specific. The constitution talks about advising the king [[31]] but not about making rulings.

When Chief Mzikayise Ntshangase [[32]] of Mkhwakhweni died on 22 December 2002 his body was kept in the mortuary for five years. Upon the chief’s death, the family duly reported the death to the authorities at Ludzidzini Royal Residence in particular to the Governor [[33]] as the deceased was a member of the Border Restoration Committee. The governor reported the death of the deceased to His Majesty King Mswati III as His Majesty was the one who had appointed the deceased to the Border restoration Committee with special responsibilities. His Majesty referred the matter to the Swazi National Standing Committee headed by a senior prince [[34]] to prepare for the burial. This Committee directed that the deceased should be buried at Mpuluzi area under Chief Nhloko Zwane. This decision was made because it was alleged that the deceased had been evicted from the Mkhwakhweni area [[35]]. Initially, King Mswati had ordered that Mr Ntshangase be buried elsewhere, because he had lost his position as chief of Mkhwakhweni before his death when his brother married a princess and thereby climbed in the social ranking.

The Swaziland National Council Standing Committee (SNSC), known as Liqoqo, bout month ago ordered the late Mzikayise Ntshangase’s sons to withdraw the case from court. However, this was not to be as the sons defied such an order and the case was heard by Judge Qinisile Mabuza five days after the instruction had been given. The late chief’s sons[[36]] were called to Lozitha Royal Palace by members of the Liqoqo where they were told to withdraw the case from the High Court, as the high court was not the right place for the case to be heard[[37]].

In a landmark judgement, High Court Judge Qinisile Mabuza has ruled that the late Mzikayise Ntshangase should be buried at Mkhwakhweni. Justice Mabuza ordered the Royal Swaziland Police to provide security herein whenever it is required until the deceased has been buried. The judgement comes after a long-drawn court case, punctuated by her conducting of an inspection in loco of the deceased at the morgue, and both at Mkhwakhweni and Mpuluzi, where the respondents were contending he should be buried.
She said having conducted an inspection in loco at Mkhwakhweni, she discovered that Ntshangase had an illustrious history, which he and every Swazi should be proud of. Justice Mabuza said it was not surprising that the deceased’s family wanted to bury him where his ancestors and forebears were. She said the Ntshangases were a huge clan in their own right and occupy a large area in the south of Swaziland and beyond the Swazi borders into South Africa. She said the deceased’s grandfather and father were buried within the precincts of the Ntshangase homestead.

Justice Mabuza said Swazis revered and honoured ancestors as dictated by their traditional religion. Swazis perform rituals called kuphahla in their honour and this fact cannot be ignored because we are now Christian. It would be awkward for the Ntshangase’s to perform these rituals anywhere else other than at Mkhwakhweni in the exclusive privacy and company of their departed ones. She said that the respondents had offered to bury the deceased at government’s expense at Mpuluzi was no longer an option.

Mzikayise’s case comes at a time when the country has barely come out from the effects of the infamous November 28, 2002, statement issued by the then Prime Minister, Sibusiso Dlamini. Dlamini had declared that government would not abide by a Court of Appeal decision for the return home of families evicted from Macetjeni and ka-Mkhweli[[38]] at the height of a chieftaincy dispute. Involved in the dispute were Prince Maguga, who had been appointed traditional leader of the two areas and the deposed chiefs, Mliba Fakudze and Mtfuso Dlamini, of Macetjeni and ka-Mkhweli respectively. The families’ victory in subsequent court battles did not help them. They were told to return home on condition they subjected themselves to the authority of Prince Maguga, who had been appointed chief of the areas. The evicted families humbled themselves and apologised to Prince Maguga. Mtfuso remains in exile in South Africa as he refused to apologise to the prince[[39]]. The government team argued that the king was entitled to separate feuding factions by evicting those Swazis who were mercilessly removed from their ancestral land by the security forces. This was allegedly premised upon Swazi law and custom. They further argued that the matter be removed from the courts as it was a problem of Swazi law and custom.

MAGISTRATES’ COURT

Magistrates Courts are not courts of record. They are established by provisions of the Magistrates Courts Act, and are presided over by judicial officers employed as civil servants (magistrates). Their decisions are not binding on other courts.

 

SPECIALIST COURTS

Apart from the High Court and Supreme Court, which are ordinary courts, Swaziland also has specialist courts set up to deal with particular matters. These are creatures of statute, with limited jurisdiction as set out in the legislation establishing them. The Industrial Court and Swazi National Courts are examples of specialist courts in Swaziland. Swaziland does not, however have small claims courts. This has the effect of denying the indigent aggrieved person the opportunity to access justice, especially since Swaziland does not have a legal aid system.

 

THE INDUSTRIAL COURT

The Industrial Court was established by the Industrial Relations Act of 2000. It has jurisdiction over matters that touch on industrial relations, the employer-employee relationship.

 

SWAZI NATIONAL COURTS

The Swazi National Courts (Swazi Courts) were established by the Swazi Courts Act 80 of 1950. They have jurisdiction on matters falling under customary law, and can only handle matters involving members of the Swazi nation. Although the term ‘members of the Swazi nation’ is not defined, these courts have increasingly been handling cases involving non-members of the Swazi nation. Legal representation is in terms of the Act not allowed in proceedings of these courts.

 

Swazi Courts are notorious for their quick justice. They are presided over by Court Presidents, who are presumably well versed in Swazi customary law. In dispensing their quick ‘justice’, they either impose fines, order compensation for the victim (such as return of stolen items or their monetary value) as well as custodial sentences. The rules of natural justice are dispensed with here. It is not clear whether the doctrine of res judicata applies here. Assuming the Swazi Courts determine an assault case with finality and the victim subsequently dies. It is not clear whether the accused can rely on res judicata in the High Court, since the Swazi Courts do not have jurisdiction over offences such as murder and culpable homicide.

 

CHILDREN’S COURT

Swaziland does not have dedicated children’s courts to deal with issues involving minors. Currently the High Court has a children’s wing, which facilitates all matters involving minors. This is a child friendly wing that allows minors to participate in judicial proceedings in conditions that are favourable to them. Hence, children can testify in a protected environment without intimidation from their aggressors.

 

LEGAL AID

Swaziland does not have a criminal legal aid system, save for pro deo counsel offered by the state in capital cases. Section 21(2)(c) of the Constitution provides that a person charged with a criminal offence shall be entitled to legal representation at the expense of government in the case of any offence which carries a sentence of death or life imprisonment. The Constitution only cemented the hitherto prevailing position regarding criminal aid. Due to prohibitive costs of counsel, many indigent accused go to trial unrepresented. The amount of damage and violation of human rights occasioned on such accused from the moment of arrest to conviction cannot be overemphasized. The fact that certain cases are submitted to Swazi Courts for determination under customary law where no legal representation is allowed does not redeem the situation.

 

CIVIL COURT LEGAL AID

The state does not offer legal aid in civil matters. The Constitution is silent on this matter.

 

LEGAL AID BY PRIVATE INSTITUTIONS

Certain private institutions such as non-governmental organisations (NGO) do provide some form of legal aid to indigent persons. This is mostly done in matters of maintenance, inheritance and domestic or sexual abuse. Since these are donor-funded entities, their interventions are usually limited by donor preferences and scarcity of funds. There is a great need for an increase in the number of such organisations. There is also need to address the competing interests of private law practice and working for a legal aid NGO. Whilst some NGOs are able to attract good personnel through favourable salaries, the turnover is otherwise high due to management styles that do not go down well with their personnel. There is a need to address the founder’s syndrome in some NGOs that offer legal aid, to prevent high staff turnover and ensure retention of qualified personnel and efficiency of the services provided.

 

LAW REPORTS

Swaziland has a law report series known as the Swaziland Law Reports (SLR). According to AJGM Sanders, the publication of law reports started as an initiative of Sir Harold William in 1953. Sir William was a Commissioner for Territories in Southern Africa, namely Basutoland, Bechuanaland and Swaziland and he was Chief Justice in each of these territories. Initially the law reports were published as High Commission Territories Law Reports (HCTLR) by the High Court, Maseru in Basutoland. In the latter half of 1966, Basutoland and Bechuanaland moved towards independence and the HCTLR ceased to exist, and each country began publishing its own reports. Swaziland produced the first SLR volume in 1969.

 

The SLR series is no longer published, making it difficult to follow legal developments within the Swazi legal system. The last publication was in the 1980s. Cases from both the High Court and the Supreme Court can now be obtained by making photocopies from the High Court registry. Those from the Industrial Court and the Industrial Court of Appeal can be accessed the same way.

 

Since South African cases have persuasive value in the courts of Swaziland, South African Law Reports are used to a large extent. Swazi cases also appear in the African Human Rights Law Reports, such as Gwebu and Another v Rex (2002) AHRLR 229 (SwCA 2002). Citation of the Swaziland law reports often starts with the words The Swaziland Law Reports, followed by the year. The SLR does not make use of volume in its publications, hence after the year of publication will follow the page in which the case appears. For example, the following case R v Dlamini SLR 1980-86, 25 would be cited as ‘R v Dlamini, Swaziland Law Reports 1980-86 at page 25’.

 

Since the last published series of the SLR was in 1986, there are no official law reports that are published. However, reports of cases can still be obtained by photocopying or scanning reports from the High Court registry. Civil cases are usually cited as, for example Jon Doe v The People’s Bank Ltd, High Court Civil Case No.2466/2002, Unreported. Criminal cases follow a similar mode of citation, e.g. Gwebu George and Another v Rex High Court Criminal Case No.11/2002, Unreported. Matters that went on appeal are cited as, for example Professor Dlamini v The King, Appeal Case No.41/2000.

 

The SLR is available in various places such as the law library in the Ministry of Justice in Mbabane as well as the law section and Swaziana section of the University of Swaziland library in Kwaluseni. The national libraries in both Mbabane and Manzini also house these reports. This is in respect of the series from 1969 to 1986 when the last publication was produced. South African law reports can also be accessed in the University of Swaziland law library. South African cases are cited as Harksen v Lane NO 1998 (1) SA 300 (CC). The CC denotes that it is a constitutional court decision.

 

GOVERNMENT GAZETTES

The Government of Swaziland publishes a gazette that contains all relevant announcements and enactments or amendments of laws and regulations. It incorporates various government decisions, and once they feature in the Gazette, government decisions, laws, and regulations are deemed to have been published and validly promulgated. Gazettes are used by both the government and ordinary citizens to convey information to the public. The following are some of the normal uses of gazettes:

 

  • Notices to creditors and debtors in administration of estates.
  • Publication of amendments to existing laws, regulations and rules.
  • Publication of newly enacted laws, regulations and rules.
  • Publication of royal decrees.
  • Invitation for tenders from government departments.
  • Issuance of trading licences for companies.
  • Notices of liquidation of companies.
  • Publication of title deeds and deeds of transfer in respect of property.

 

Government gazettes are obtainable from the Ministry of Justice Law Library at the cost of E1.00 per page (approximately USD $0.20) or at the government printers in Mbabane (Webster Print) at E25.00 per bound copy (approximately USD $4).

 

LAW SCHOOLS

Swaziland has one university, the University of Swaziland. It has a law department within the Faculty of Social Sciences that offers a Diploma in Law, and a Bachelor of Laws degree. The Bachelor of Arts in Law degree was phased out a few years ago in favour of a new five-year LLB degree. The Diploma is offered by the Institute of Distance Education within the university. Human rights’ teaching was not available until the introduction of the new five-year LLB programme.

 

THE LAW SOCIETY OF SWAZILAND

As in most other jurisdictions, the Law Society of Swaziland regulates the legal profession. It is a body set up under the Legal Practitioners Act. Amongst others, the law society seeks to uphold principles of the rule of law, law reform and regulate admission and conduct of legal practitioners in Swaziland. The Law Society of Swaziland is regulated by statute.[[40]]  Its membership is drawn from attorneys and advocates. Advocates are admitted to practice by the High Court and attorneys are similarly admitted but must also file their papers with the Attorney-General. The membership of the Society is small, although it has an active Council. In the past, the Society has not been vocal enough on matters affecting judicial appointments and the interference by the Executive with the judiciary. Recently they marched to the high court to deliver a petition complaining about the CJ Michael Ramodibedi. This was after the CJ had preferred charges against Justice Masuku. The Law Society viewed seriously the unsubstantiated charges and suspension of Justice Masuku. The action against Masuku brought to the open the lawyer’s grievances about the overall administration of Justice. To the law society, the charges and suspension of the judge was a culmination of a bigger problem in the judiciary.

 

THE ATTORNEY GENERAL

The Attorney General (AG) plays the role of legal advisor to the government, hence the relationship between the office of the AG and the Ministry of Justice. The AG is not part of the cabinet per se but works closely with the executive. Section 77(1) of the Constitution which is the provision creating this office provides that the AG shall be appointed by the King on the recommendation of the Minister for Justice and in consultation with the Judicial Service Commission (JSC). It further spells out the qualifications of the person to be appointed. The AG is the principal legal advisor to government and an ex-officio member of cabinet. The AG represents chiefs in their official capacity in legal proceedings (section 77(3) (c)). The AG however failed to represent a chief and his followers comprising over 20 families (over 200 persons) in 2006 when they were evicted from a farm in Hlantambita without compensation. The AG also advises the King.

 

DIRECTOR OF PUBLIC PROSECUTIONS

Apart from the AG’s office, government also makes use of the office of the Director of Public Prosecutions (DPP), mainly in criminal matters. Section 162 sets up this office and provides for the appointment of the DPP. The DPP is appointed by the King on the advice of the JSC, and qualification for appointment to this office is the same as that for a judge of the superior courts (section 162(3)).

 

Section 162(4) provides that the DPP shall have power in any case in which the Director considers it proper to do so, to

a)    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;

b)    Take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority;

c)     Discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the Director or any other person or authority; and

d)    Perform such other functions as may be prescribed.

 

The DPP in person or by delegation to subordinate officers has the power to institute and undertake criminal proceedings against any person before any court. This is a better provision compared to the  King’s Order in Council No.17 of 1973 which allowed the DPP to prosecute in person or by substitute; which substitute could be Crown Counsel or any person delegated by the DPP. This open-ended means of appointment was curtailed by section 162(5), which provides that the powers under subsection (4) may be exercised by the DPP in person or by subordinate officers acting in accordance with the general or special instructions of the DPP.

 

This office can take over and continue or discontinue any criminal proceedings instituted by any other person or authority, at any stage before judgment is delivered. Although individuals can prosecute (that is institute criminal proceedings) at the private instance, (in terms of section 13 of the Criminal Procedure and Evidence Act) the DPP arguably remains the sole prosecuting authority in Swaziland. The drawback of provisions allowing for prosecution at the private instance is that the DPP’s office never really gets to totally relinquish its powers to prosecute. Section 162(4)(b) of the Constitution acts as a claw back clause that can easily be open to abuse, to frustrate any attempts at private prosecution. Notwithstanding the issue of a nolleprosequi, the DPP’s office can still intercept private prosecution proceedings and take over in its capacity as public prosecutor; thus effectively excluding the person or authority that initiated the proceedings. The DPP’s office need not give reasons for such a move, save that it considers it proper to do so.

 

Further, after re-joining the fray, the DPP’s office may then exercise its powers under paragraph (c) to terminate any criminal proceedings, whether started by the office at the public instance or any person at the private instance. It is submitted that this vicious cycle is open to abuse. In effect, it means that prosecution can only be undertaken by the DPP and no other individual or authority. Section 162 (6)(b) provides that the DPP shall not be subject to the direction or control of any other person or authority. However, there is no clear provision stipulating that the DPP is constitutionally independent. The constitutional independence of this office should be stipulated.

 

COMMISSION ON HUMAN RIGHTS AND PUBLIC ADMINISTRATION

A Commission on Human Rights and Public Administration is established which shall be headed by a Commissioner who qualifies to be appointed as a judge of the superior courts. the commission's functions are, among others, to investigate complaints concerning alleged violations of fundamental rights and freedoms under the Constitution and also investigate complaints concerning alleged violations of fundamental rights and freedoms under the Constitution and also 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.

 

The Human rights commission is an important factor in the sphere of protecting human rights. It provides a sort of checks and balances to gauge the state’s commitment and the constitution in protecting and promoting human rights. The human rights commissions are empowered to investigate and take appropriate actions aimed at addressing any transgressions of human rights and public administration. They subpoena and fine any person contemptuous of court. It is incumbent that it should work hand in hand with other organs of government in promoting and protecting human rights, especially the judiciary. Expectations are high that it will bring a new era in the constitutional dispensation. For effective carrying out of its functions the commission must be independent and be empowered, enough to investigate and correct all human rights abuse cases.

 

The HRC is empowered to refer matters to the DPP or AG for appropriate action to secure termination of the offending action. The constitution does not provide for civic education about human rights and freedoms the Swaziland constitution as an obligation on the HRC. While there’s no express provision that empowers the creation of subcommittees, there’s a need for the legal services committee. Through this committee, every effort is made to ensure that all complaints of violations of human rights are properly investigated.

 

The human rights commission is barred from investigating matters pendete lites and matters touching on relations between the government and any other government or an international organisation. The commission is not empowered to investigate some crimes. These include matters touching on the exercise of the royal prerogative by the crown (section 165(3) (c)). The commission cannot address issues including the cases of Macetjeni/Kamkhweli evictees. This takes us back to the time of the rule of law crisis in Swaziland. This position is further strengthened by section 26(6) of the constitution. This section endorses any act done under Swazi law and custom as beyond the question of any person to the extent that this places the King’s agents (as opposed to the King himself) above the law, giving them carte blanche to carry out the royal discretion in any way they (the agents) see fit.

 

There is also a need to form a Commission on Human Rights, which is not just limited to the actions of public officers. This Commission could attempt conciliation of disputes under the Bill of Rights provisions in the Constitution before they resulted in litigation before the High Court and perform the function of promoting human rights, which is mentioned in the Preamble.

 

CHAPTER X: PUBLIC SERVICE

This chapter establishes the Public Service of Swaziland to be administered through independent service commissions. The service commissions are to be manned by appropriately qualified persons, who shall be appointed by the king after recommendations by the responsible Minister. The responsibilities of the Service Commission include the selection of candidates for appointments, confirmation of appointments, termination of appointments, disciplinary control and removal from office of officers within the public service.

 

It should be noted that the Constitution does allow for the establishment of further service commissions. Provisions regarding the appointment and functions of officers in the Police forces, Correctional services and the Defence Force are made. Provisions for the protection of public officers and protection of pension rights and powers of commissions over pensions are made.

 

CHAPTER XI: PUBLIC FINANCE

The Consolidated Fund is established into which all moneys belonging to the Government is to be paid. No moneys can be withdrawn from the Consolidated Fund without the authority of Parliament. The Minister responsible for finance is given power to borrow money on behalf of Government. Provision for the Central Bank of Swaziland is made and it shall be the sole authority responsible for the issuing of the currency of the country. The office of the Auditor-General is established. The functions, powers and manner of his removal from office are provided for.

 

CHAPTER XII: LAND, MINERALS, WATER AND ENVIRONMENT

Chapter XII provides forth management and protection of land, minerals, water and environment.

 

LAND

All land in Swaziland, save for privately held title-deed land, is vested in the Kin in trust for the Swazi nation. Provision is made giving equal access to land to all citizens of Swaziland for normal domestic purposes. There is established a Land Management Board, which shall be responsible for the overall management and for the regulation of any rights or interest in land whether privately, owned or vested in the King in trust for the Swazi Nation.

 

Access to land is now open to everybody. Section 211(2) is intended to eliminate gender based discrimination in access to land but is weakened by the fact that it is not part of the justiciable bill of rights, and is further undermined by the broadly expressed limitation contained is section 211(1). In rural areas, women are dependent on their relationships to the chiefs for access to land and even on agreement on the manner in which it is used whether single, married or widowed. The problems that can arise from this dependency are evident in the forced evictions that were carried out against the families in the Macetjeni/Kamkhweli areas in 2000, at Emnyeweni Umphakatsi at Madonsa area, kaShali area, and squatters at Ekufinyeni (Farm 1270 in Malkerns) in 2011.

Even development initiatives have worsened the land problem in the country. KaNgcamphalala and St. Philips residents cried foul about the Lower Usuthu Smallholder Irrigation Project (LUSIP) launched by the Swaziland Water Agricultural Development Enterprise). The land management board appointed and answerable to the king does not make it any easy for rural women to have access to a remedy through this body, which is not publicly accountable. The bone of contention is that they were forced to donate their fields to the agricultural schemes promoting the growing of sugar cane. These residents wanted to grow maize, which is the staple crop. Despite their refusal to be part of the scheme, they lost portions of their ancestral land to the smallholder sugarcane projects.

The land problem brought about by imposed development also adversely affected urban dwellers. Residents of both Moneni and Ka-Khoza could not come to terms with the swallowing of their places by the Municipal Council of Manzini. They expressed concern that the subdivision of plots would lead to the rise of unemployment and poverty in the peri-urban areas. The residents expressed concern that even if the Ministry of Housing and Urban Development were to sell the plots cheaply, they would not afford to buy them.

In as much as section 28 strives to be positive in uplifting the status of women, the challenge will come to the practical enforcement by women of this right in the present Swazi context, where societal attitudes, expectations, and demands, the patrilocality of marital homes, as well as the potential traditional leaders and community discrimination, sanction and ostracism of a woman who refuses to uphold a certain custom, may militate against women. They may not be able to exercise and enjoy these rights. Section 28(3) attempts to resolve conflicts between the rights guaranteed in the constitution and the discriminatory implications of some customary formulation places the burden on the individual woman to assert her right to opt out of any customary practices in which she may have objections. Yet this may be a difficult right for her to exercise due to the pressures she may be subject to within the family or local community or precariousness of her economic circumstances.

MINERALS

All minerals and mineral oils in, under or upon any land in Swaziland are vested in the King in trust for the Swazi nation. There is established the Minerals Management Board whose function is to ensure overall management of minerals and making of grants, leases or other dispositions conferring rights or interests in respect of mineral oils in Swaziland.

 

WATER

There cannot be private ownership of water naturally found in Swaziland.

 

ENVIRONMENT

Every person shall promote the protection of the environment and the government shall enact laws for the protection of the environment.

 

CHAPTER XIII: THE LOCAL GOVERNMENT

In terms of this Chapter parliament is empowered to provide for the establishment of a single countrywide system of local government, which is based on the Tinkhundla system of government. Swaziland will be divided into as many local government areas as the Elections and Boundaries Commission may recommend. The Chapter also provides for the administration of duties, subventions, power to raise revenues and constitutions of the local governments.

 

THE TINKHUNDLA AND REGIONAL ADMINISTRATION BILL, 2011

The object of the Bill is to provide the law on the administration and development of Tinkhundla and Regions and the decentralisation of power from Central Government to other spheres of governance so as to bring it into conformity with the Constitution, in particular provide for -

a)    Decentralization by devolution of power, authority, functions, responsibility and resources from the Central Government to the Regional, Inkhundla and other local spheres of governance;

b)    Establishment of Regional Councils and Tinkhundla Authorities;

c)     Establishment of a Tinkhundla Administration and Development Fund;

d)    Establishment of Regional Development and Planning Coordination committee; and

e)     Repeal of the Regional Councils Order, 1978 and Urban Government Act, 1969.

 

Authorities will be set up throughout the kingdom in a new look Tinkhundla system of government that will see the establishment of these. This is contained in a new bill that seeks to reinforce the decentralisation of services to the people, the Tinkhundla and Regional Administration Bill of 2011. To end the duplication of duties and the clash between members of parliament and Indvuna Yenkhundla in their various constituencies, the Tinkhundla Authorities will be chaired by Indvuna Yenkhundla and shall comprise members of Bucopho who each shall be a representative of the chiefdoms or its equivalent under the Inkhundla and five persons with special skills as may be required by an Inkhundla Authority or the minister. The MP shall only be an ex-officio member. These shall be elected on individual merit and on adult suffrage basis.

The Tinkhundla Authority shall be a body corporate, meaning it can sue and be sued and also can acquire and sell property. For anyone to be elected or appointed to be a member of the Authority they must be a registered voter in the Inkhundla area in which that person seeks election, must be at least 18 years old, a Swazi citizen, an ordinary resident; and has been allocated land through legitimate means by a competent authority and has paid all dues or made satisfactory arrangements to the appropriate authority for the payment of dues and has been issued with a certificate.

A person is deemed ordinarily resident in an Inkhundla area if, within four years prior to the holding of elections or nomination to the Authority, that person has lived in the area for a continuous period of not less than 12 months. “The primary duty of an Authority is to ensure, in accordance with the law, the efficient management and development of the area under its jurisdiction in consultation with the local traditional authority where applicable. An Authority shall maintain and protect life, public property, improve working and living conditions, promote the social and cultural life of the people, raise the level of civic consciousness, preserve law and order within its area and generally preserve the rights of the people in that area,” reads the Bill.  The same authority is also expected to develop policies of their own and promote popular participation and cooperation in respect of political, economic, cultural and social life of the area. It shall also set up structures for adjudication of minor local disputes. It may also make by laws in line with the Act and initiate the enactment of regional laws. Each Authority shall be the planning and budgeting authority, collaborating with adjacent authorities and development agencies in the development of integrated development plans, develop an integrated plan to include land use plan, socio-economic profile, environmental analysis and mitigation, infrastructure investment plan, geo-spatial plan, local economic development strategy and action plan, and institutional support structures [[41]].

CHAPTER XIV: TRADITIONAL INSTITUTIONS

The following Swazi Traditional institutions are protected and guaranteed:-

 

a)    Ngwenyama

b)    Ndlovukazi

c)     Bantfwabenkhosi (Princes of the Realm)

d)    Chiefs

e)     Sibaya

f)     Umntfwanenkhosi Lomkhulu

g)    Tindvuna (Royal Governors)

 

CHAPTER XV: INTERNATIONAL RELATIONS

This chapter provides for various aspects relating to diplomatic relations. Swaziland shall continue to have diplomatic relations with other countries and organisations. The government may execute or cause to be executed an international agreement in the name of the Crown but shall be subject to ratification and become binding once Parliament approves it.

 

CHAPTER XVI: LEADERSHIP CODE OF CONDUCT

Chapter XVII provides for the Leadership Code of Conduct. The Code of Conduct seeks to ensure that those in leadership are transparent in their activities and accountable to the people they represent or serve. Certain persons are obliged, in terms of this chapter, to declare their assets and liabilities. There is a penalty for failure to comply with the Code. The integrity Commission has also been established. It will be responsible for receiving the written declaration of these assets and liabilities.

 

One drawback of the provisions is that the written declaration of property and assets required of public officials by section 240 will apparently not be open to public scrutiny other than by a court or in the context of an investigation by the Integrity Commission. The right to public scrutiny of these declarations are missing in this chapter. While the Leadership Code of Conduct will apply to judges, it falls short of, and parts are not relevant to, recognized standards of judicial conduct, for example as set out in the Bangalore Principles of Judicial Conduct. A Judicial Code of Conduct is a better option, which should have been included in the Constitution or promulgated through separate legislation.

 

CHAPTER XVII: AMENDMENT OF THE CONSTITUTION

Chapter XVII provides for the amendment of the Constitution. Different methods for amending the Constitution are provided for, depending on whether the provision sought to be amended is specially entrenched or just an entrenched provision.

 

CHAPTER XVIII: MISCELLANEOUS

Chapter XIX provides for the following miscellaneous issues:-

v  Council of Chiefs

v  The Law of Swaziland

v  Subordinate legislation

v  Reference to public office

v  Appointments, resignations and removal from office

v  Power to amend or revoke instruments

v  Jurisdiction of the High Court

 

ACCESS TO INFORMATION

Access to information in Swaziland is relatively impinged upon. Accessing records at the High Court registry is always laced with difficulties. A simple process like following up a case in the High Court can prove impossible. The information seeker is usually sent from pillar to post, bombarded with a barrage of questions and told they cannot be assisted for one reason or another. The often-quoted reason for denial of access to public documents is ‘confidentiality’. Other public offices adopt the same attitude to seekers of information. Access to information is also hindered by the high cost of purchasing that particular information, such as legislation and other government gazettes. There is no right of access to public information in the Constitution. Democratic government cannot survive without the transparency to which the Preamble specifically refers, as it is only through such access that citizens can discover whether democratic processes are functioning properly and effectively.

 

HEALTH SECTOR

With an estimated adult prevalence of 26.3 percent, Swaziland has the world’s most severe HIV/AIDS epidemic, posing a serious challenge to the country’s economic development. Since Swaziland’s first AIDS case was reported in 1986, the epidemic has spread relentlessly in all parts of the country. According to the Joint United Nations Program on HIV/AIDS’s (UNAIDS’s) Epidemic Update 2009, average Swazi life expectancy fell by half between 1990 and 2007, in great part due to the epidemic. Approximately 190,000 people in Swaziland are HIV positive, including 15,000 children under age 15.

 

From 1992 to 2008, prevalence among pregnant women attending antenatal clinics (ANCs) rose from 3.9 to 42 percent, according to the 2010 United Nations General Assembly Special Session (UNGASS) report. In 2008, prevalence among pregnant women varied markedly by age group, from 12 percent in those 15 to 19 years of age to 49 percent among those 25 to 29 years of age. The primary mode of HIV transmission in Swaziland is heterosexual contact, which accounts for 94 percent of transmissions, according to UNAIDS. Between 50 and 65 percent of new infections occur among steady, long-term partners; countrywide, one in six heterosexual couples is serodiscordant, according to the 2007 Swaziland Demographic and Health Survey (SDHS).

 

Issues of gender inequity, socio-cultural norms and behaviours, and gender-based violence (GBV) all contribute to the disproportionate effects of HIV on Swazi women. For every two HIV-positive adult men, there are three HIV-positive adult women, according to the 2007 SDHS. Women aged 25 to 29 have the highest prevalence of either sex, at 48.9 percent. Among men, prevalence is highest among 35 to 39 year olds, at 44.9 percent, according to the 2007 SDHS. Among people older than 35 years, men are more likely to be HIV positive than women, but among those under 35, more women are infected. The majority of new infections (62 percent) also occur in females, with HIV contributing to an escalating maternal mortality ratio, now at 589 deaths per 100,000 live births, according to the United Nations Children’s Fund (UNICEF). GBV is a severe social and public health problem in Swaziland.

 

A 2007 study by UNICEF and the U.S. Centres for Disease Control and Prevention (CDC) found one-third of females aged 13 to 24 experienced sexual violence before the age of 18. High HIV prevalence and the differing rates between men and women can be explained to a large extent by intergenerational sex, earlier sexual debut among girls, and the prevailing practice of having multiple concurrent sexual partners. These practices are influenced by gender norms and ideals for both men and women, including a tradition of polygamy and values that endorse men’s power and dominance over women. Economic disparities and women’s economic reliance on men serve to reinforce gender stereotypes and limit women’s ability to make decisions, including those related to safer sex.

 

High-risk sex (with a non- marital, non-cohabiting partner) is a common practice among adults, with 44 percent of women and 58 percent of men aged 15 to 49 having had high-risk intercourse in the past year. Men are far more likely than women to have multiple partners, however, with 10 times more men having two or more partners in a year compared with women (23 percent and 2.3 percent, respectively). Just over one-half of adults aged 15 to 49 who had two or more partners in the past year reported using a condom at their last sexual encounter. Most-at-risk populations include youth (particularly girls), sex workers, seasonal and factory workers, long-distance truck drivers, soldiers, and employees of the public transport sector. However, with more than one-fourth of Swaziland’s adult population living with HIV/AIDS, even the general public qualifies as ―at risk.

Children are affected by the epidemic by contracting the disease from their mothers and/or by losing a parent to the disease. In the 2007 SDHS, 5 percent of children between the ages of 2 and 4 were HIV positive, and in 2008, children under 15 were estimated to account for nearly one out of every five new cases of HIV. HIV/AIDS is also responsible for 47 percent of under-5 mortality in Swaziland, reversing hard-won child survival gains. The National Children’s Coordination Unit estimates there are approximately 130,000 orphans and vulnerable children (OVC) in Swaziland. According to the 2007 SDHS, only 22 percent of children fewer than 18 years of age live with both parents, and nearly one-third do not live with either parent. While extended families have absorbed the vast majority of children without parents, traditional safety nets are being stretched to a breaking point as the number of children in need rises. The 2007 SDHS reported nearly 60 percent of households with OVC received no external support during the previous 12 months. The ―most basic needs (defined by the Demographic and Health Survey as one pair of shoes, two sets of clothes, and one meal per day) are not met for approximately 40 percent of OVC. While the elderly have taken on more caregiver responsibilities, many have lost the financial support of their own children due to AIDS. Their own limited resources make it difficult to support their grandchildren.

 

Despite the widespread nature of the epidemic in Swaziland, HIV/AIDS is still heavily stigmatized. This stigma hinders the flow of information to communities, hampers prevention efforts, and reduces use of HIV/AIDS services. Other barriers to prevention, treatment, and care include the limited coverage of behaviour change communication strategies, limited access to health and social services (particularly for children), inadequate laboratory services and lack of trained laboratory staff, and an insufficient number and limited capacity of health care providers. High rates of unemployment and poverty, drought, and lack of food security limit care-seeking behaviours and contribute directly to high rates of treatment default. Swaziland has one of the highest tuberculosis (TB) incidence rates in the world, with an estimated 1,200 cases per 100,000 populations in 2008, according to the World Health Organization (WHO). An estimated 84 percent of adult-incident TB patients are also HIV positive, which complicates the care and treatment of both diseases.

 

NATIONAL RESPONSE

In 1999, King Mswati III declared AIDS a national disaster and established the Cabinet Committee on HIV and AIDS and the Crisis Management and Technical Committee. In 2003, the National Emergency Response Committee on HIV/AIDS was established to coordinate and facilitate the national multi-sectoral response to HIV/AIDS, while the Ministry of Health (MOH) implemented activities. In 2005, the first National HIV/AIDS Strategic Plan was reviewed by a broad group of national stakeholders. Based on this review, a second National HIV/AIDS Strategic Plan for 2006–2008, the National HIV/AIDS Action Plan, and the National Multi-sectoral HIV and AIDS Policy were developed in 2006 to coordinate the national response. Swaziland is currently implementing its third HIV/AIDS strategic plan: the National Multisectoral Strategic Framework for HIV and AIDS, 2009–2014 (NSF). The NSF has four thematic areas: prevention, treatment, care and support, and impact mitigation/response management.

 

In 2003, the MOH launched the Emergency Care and Treatment Implementation Plan to provide free antiretroviral therapy (ART) to people living with HIV/AIDS (PLWHA). With ART services now available in all urban and peri-urban settings, the MOH is rapidly rolling out a decentralized care and treatment program to clinics throughout the country. The 2010 WHO/UNAIDS/UNICEF towards Universal Access report estimated 85 percent of PLWHA in need of ART were receiving it in 2009, according to the 2006 WHO guidelines. In 2009, WHO revised its recommendation for the CD4—a specific white blood cell—count at which PLWHA should start ART. The 2006 guidelines recommended initiating ART when a person’s CD4 count reached or dropped below 200 cells per cubic milli-meter; the revised guidelines recommend initiating therapy at or below a CD4 count of 350.

 

The Government has also successfully supported the scale-up of prevention of mother-to-child transmission of HIV (PMTCT) programs through its PMTCT Strategic Plan and PMTCT Implementation Plan, expanding services from a base of virtually none in 2004 to 140 out of 172 ANC sites countrywide. According to Government estimates in the 2010 UNGASS report, 69 percent of HIV-positive pregnant women received ARVs in 2009 to reduce mother-to-child transmission.

 

In 2009, Swaziland drafted a formal male circumcision (MC) policy and implementation plan in response to promising results from recent clinical trials for MC as a method of preventing the transfer of HIV. With only 8 percent of men currently circumcised in the country, according to a 2009 study cited by UNAIDS, scale-up of MC will require considerable funding and investment in capacity building. The scale-up could reduce costs in the long run, although, by potentially altering the trajectory of the national epidemic. In 2010, at the request of the MOH, the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) awarded Swaziland $27 million to implement an Accelerated Saturation Initiative (ASI) to achieve universal circumcision in the 18- to 49-year-old male age group. The ASI will be the first time mass circumcision is being attempted as a HIV prevention initiative in an entire country. A task force, which comprises Government; service providers from the private sector and nongovernmental organizations (NGOs); and traditional authorities, has been established to oversee the rollout of MC, including the ASI.

 

A National Children’s Coordination Unit was established in the Office of the Deputy Prime Minister (DPM). The Department of Social Welfare was moved from within the MOH to the DPM’s Office. The NSF prioritizes impact mitigation and children in particular as key focus areas. The policy environment is rapidly evolving with the recent cabinet approval of a National Children’s Policy and Social Development Policy. It is also evolving by developing several draft documents, including National Alternative Care Guidelines; Residential Care Guidelines; and Quality Service Standards for OVC Programs. The National Plan of Action (NPA) for Orphans and Vulnerable Children for 2006–2010 was evaluated, and a new NPA covering 2011–2015 has been developed.

 

Swaziland has made progress in increasing access to education for OVC. In 2002, the Government introduced a budget allocation for grants to support education for OVC. Although the costs of schooling are not fully covered by this grant, the national allocation has steadily increased with almost 112,000 children benefiting from the grant in 2009. In 2010, the Government began phasing in universal free primary education. The 2007 SDHS found only minor differences (a ratio of 0.976) in school attendance between orphans and non-orphans; however, there are still challenges with school retention and high dropout rates.

 

The Global Fund to Fight AIDS, Tuberculosis and Malaria has disbursed $76.2 million since 2003 to combat HIV/AIDS in Swaziland, most recently in an eighth-round grant in 2010 for $7.2 million to support health systems strengthening. The U.S. Government (USG) provides nearly 30 percent of the Global Fund’s total contributions worldwide and is one of Swaziland’s largest bilateral donors. Other international donors include the European Union, the World Bank, and several United Nations agencies.

 

THE NATIONAL RESPONSE TO THE HIV/AIDS PANDEMIC (NERCHA)

Immediately after 1986, when the first AIDS case was identified, government established the Swaziland National AIDS Prevention and Control Programme (NAPCP) within the Ministry of Health and Social Welfare. The NAPCP was the predecessor of the Swaziland National AIDS/STI Programme (SNAP). SNAP, together with a number of health related NGO’s, undertook awareness campaigns, condom distribution programmes, blood screening and establishment of support centres. Sentinel surveillance of HIV has also been undertaken every two years since 1992 by SNAP.  His Majesty King Mswati III declared HIV/AIDS a national disaster in 1999.  In order to foster a multi-sectoral response to the epidemic, a Crisis Management and Technical Committee (CMTC) was placed in the Deputy Prime Ministers Office.  This committee, in its 3-year term of office, stimulated a multi-sectoral response to HIV/AIDS. It also prepared and developed a National Strategic Plan for HIV and AIDS for the period 2000-2005.


In December 2001, NERCHA was given the mandate to coordinate and mobilize resources for an expanded response to the epidemic. Government has demonstrated commitment to the national response to HIV/AIDS by placing the National Coordination Mechanism in the Prime Minister’s Office.  A budget line was established in 2001 and an annual budget allocation has been made since then. In 2003, the committee was elevated to the level of a Council.   
In 2001, the Kingdom government established a new coordination mechanism named the National Emergency Response Committee on HIV/AIDS (NERCHA) through an Act of Parliament, The NERCHA Act No. 8/2003, which replaced the CMTC.NERCHA, is not an implementing body, its goal is rather to organize and manage the nation’s war against the AIDS epidemic. Acting as the conduit for monies received from Government and the U.N. Global Fund to Fight HIV/AIDS, Tuberculosis and Malaria, NERCHA works with organizational and community partners across all sectors to ensure that comprehensive services are delivered at the grass-roots level throughout the nation.


With NERCHA’s leadership, the nation has created and implemented a strategic response to HIV/AIDS that has impacted thousands of Swazis. The response has focused on local, community-driven solutions that align with a national vision. These programmes are geared to be sustainable and to target all segments of Swazi society, the uninfected, the infected and the affected. In late 2004, a Joint Review committee was formed to review the NSP for 2000-2005.
A report was made public in early 2005 identifying achievements, gaps, constraints, challenges, opportunities and lessons learnt.  The findings within the report served to inform the development of the National HIV and AIDS Policy, and elaboration of the Second National Multisectoral HIV and AIDS Strategic Plan and National Programme of Action for the Multisectoral Response to HIV and AIDS 2006-2008. These documents were finalized in late 2005 as well as the National Monitoring and Evaluation Strategy. The development of the second NSP was based on findings of the Joint Review as well as countrywide consultations with government, civil society, private sector, and perhaps most importantly, the Swazi people themselves. These consultations focused on the drivers of the epidemic, how the epidemic was affecting individuals, communities, and the country at large, as well as what could be done differently to turn the tide of the HIV and AIDS epidemic in Swaziland.


In 2009, the development of the Swaziland National Strategic Framework (NSF) for HIV and AIDS 2009-2014 was commissioned by the Government of Swaziland in collaboration with other stakeholders involved in the implementation of the National Multisectoral HIV and AIDS response. The process started in October 2008 and was completed in February 2009. It was officially launched by the Right Honourable Prime Minister, Dr Sibusiso Barnabas Dlamini on the 25th September 2009 during the NERCHA AGM held in the Manzini Region.


MUNICIPAL RESPONSE

While a lot of work has been done to respond to the AIDS epidemic, most activities have taken place at national level with very few taking place at the regional level. Furthermore, even fewer activities have taken place at the community level except for a few sporadic. Overall, the national response has been driven by professionals and technocrats with limited community involvement and participation. Up to now, the approach to AIDS programming has been top-down resulting inadequate ownership by beneficiaries, limited effectiveness of interventions and lack sustainable. Consequently, there is not much evidence of a response to the epidemic at community level even though lately, there is a slight improvement.

 

In a bid not to be left out Mayors from various African cities founded AMICAALL [[42]]. AMICAALL is a program of the Alliance of Mayors and Municipality Leaders on HIV and AIDS in Africa. It is a program for community action on HIV and AIDS at the local level. The Alliance of Mayors and Municipality Leaders on HIV/AIDS in Africa was founded in 1998 following a declaration that was articulated by African Mayors during the Ninth International Conference on Sexually Transmitted Diseases and AIDS in Africa that was held in Abidjan, Cote d’Ivoire in 1997. The declaration called for mayors and local government authorities to invest in building the capacity of communities and individuals to response to the HIV epidemic and to strengthen community based services.

The Swaziland chapter was launched on January 2000, making Swaziland the second country to implement the AMICAALL program after Tanzania followed by Uganda and Namibia. The program is organized at national, municipality and community levels. At national level, the program is made up of three governance structures namely: the Executive Council; the Program Management Committee; and National Coordinating Office. Whereas the Executive Council (EC) is responsible for policy management and overall direction of AMICAALL Swaziland, the Program Management Committee (PMC) is delegated by the Executive Council to provide management support to the National Coordinating Office (NCO). On the other hand, the National Coordinating Office is responsible for overall coordination and facilitation of program implementation. Membership of the Executive Council is composed of Mayors and Chairpersons of cities councils, town councils, and town boards in the country, as well as selected in-country technical partners of AMICAALL-Swaziland. The Program Management Committee is made up of technocrats representing major partners of the program.

At the municipality level, the program is made up of Municipality HIV Teams, which are located within the twelve towns and cities.  Membership of the Municipality HIV team is drawn from leading Non-governmental Organizations in the response against AIDS, representatives of organizations of people who are either HIV infected or affected, youth, women, business, the church, the public sector etc. The responsibility of Municipality HIV Teams is to facilitate coordination of municipality-based responses to the HIV and AIDS epidemic, to provide technical guidance to the respective municipalities on HIV/AIDS issues and to assist grass-root communities in organizing homegrown responses.

At community level, the program facilitates articulation of responses by urban-based grass-root communities with the assistance of Municipality HIV Teams and the National Coordinating office. The AMICAALL strategy focuses on building the capacity of urban communities to respond to the HIV and AIDS epidemic at community level. The program promotes homegrown responses and self-determination at the local level. Community participation methodologies are used in assisting communities to develop local responses. The country has a total of twelve official towns, which have since launched local chapters covering approximately 22 to 25% of the total population of the country. The population of urban centres increases by a factor of six during the day rendering the target population of the program even higher meaning that urban service benefits more than just urban residents.

CIVIL SOCIETY'S RESPONSE

Community based organisations including non-governmental organizations (NGOs), faith based organisations (FBOs) and independent institutions have made significant contributions to effectively address the HIV and AIDS epidemic in Swaziland. These bodies have been actively engaged in all aspects of prevention, care and support, impact mitigation and more recently, treatment.  An HIV/AIDS Consortium was established within the coordinating Assembly of Non-government Organizations (CANGO). The consortium consists of all NGOs involved in activities related to HIV/AIDS. The goal of the consortium is to coordinate and solicit funds for HIV/AIDS activities. 

The first organization of people living with HIV was established in 1993, and currently there are a number of such organizations in the country. Late 2004 saw the launch of the Swaziland National Network of People Living with HIV and AIDS (SWANNEPHA) as an umbrella body for such organisations. Although denial, silence and stigma continue to be a problem in Swaziland, it is hoped that increasing the meaningful involvement of people living with HIV in all aspects of the response to HIV and AIDS in Swaziland will change this.

THE PRIVATE SECTOR

The Business Coalition against HIV and AIDS (BCHA) was launched to respond to the high prevalence of HIV/AIDS in the workplace. The BCHA is a substructure of the Federation of Swaziland Employers and Chamber of Commerce and its objectives are to:

·       Assist employers to deal with individuals who have HIV/AIDS in the same manner as those with any other chronic or debilitating illness;

·       Provide information to employees on HIV/AIDS, its magnitude, impact and preventive measures;

·       Assist in the implementation of non-discriminatory policies, procedures and practices in managing individuals who have HIV/AIDS;

·       Support companies to assist those who have tested HIV negative to remain negative;

·       Assist employees infected with HIV/AIDS to remain productive for as long as possible

·       Assist companies to have clearly defined policies and procedures which will reflect local practices, procedures, culture and legislation; 

·       Join forces with other organizations to counter HIV/AIDS and alleviate its impact by sharing the results of our internal research and supporting their efforts where appropriate

The BCHA has developed a charter to which a number of private sector establishments are signatory and in early 2005 also launched an HIV/AIDS workplace programme.

With an estimated adult prevalence of 26.3 percent, Swaziland has the world’s most severe HIV/AIDS epidemic, posing a serious challenge to the country’s economic development. Since Swaziland’s first AIDS case was reported in 1986, the epidemic has spread relentlessly in all parts of the country. According to the Joint United Nations Program on HIV/AIDS’s (UNAIDS’s) Epidemic Update 2009, average Swazi life expectancy fell by half between 1990 and 2007, in great part due to the epidemic. Approximately 190,000 people in Swaziland are HIV positive, including 15,000 children under age 15.

 

CIVIL SOCIETY ACTORS

Swaziland has a variety of non-governmental organisations working on issues of poverty alleviation, economic empowerment, religious issues, human rights and other related fields. Law Society, human rights organisations, representatives from the print media, trade unions, (unrecognised) political parties, business organisations, academics, students, and activist women involved in promoting gender equality. The various civil society institutions formed the Swazi Coalition of Concerned Civic Organisations in 2002, which has lately become very active in calling for reforms. Those who are urban-based and educated clamour for constitutionalism and democratisation, but not for the abolition of the monarchy. Those in rural areas have little or no appreciation of the constitutional crisis and appear to have an unwavering acceptance of all decisions, which appear to be made by the King.

Civil society in Swaziland is weak, fragmented and largely unable to access and influence decision making procedures both at national and local levels." This generalisation is particularly true for elections and electoral matters. The main elements of civil society are the trade unions, the churches and the non-governmental organisations (NGOs). Overall, in Swaziland civil society is not very strong although there are very active elements in urban areas, which are becoming more vocal on constitutional issues. This is partly because of the repressive laws and actions that militate against the freedoms of association and expression. The Law Society is small. Although active at present, it has in the past not played a visible role in defending the independence of the judiciary. The legislature is rather moribund, as free political association is outlawed and approximately one-half of the members of Parliament are appointed rather than elected.

 

TRADE UNIONS

The trade unions through their umbrella bodies, especially the larger Swaziland Federation of Trade Unions (SFTU) but increasingly also the smaller Swaziland Federation of Labour, have played a key oppositional role in the past, even before independence, and have strong ties with the two main opposition parties Pudemo and the NNCL. They have exercised this political role through border blockades, general strikes, mass demonstrations and, since 1998, calling for the boycott of elections. Several unions were involved in the formation of the Swaziland Coalition of Concerned Civic Organisations (SCCCO) in 2003. These efforts have not wrung concessions from the government, and they, like other opposition actors, have been the subjects of harsh and sometimes brutal state repression. Members have been harassed and arrested by security forces, demonstrations, and marches broken up by riot police using teargas and batons. Like the political parties, they have been increasingly radicalised by the intransigence of the state and its repressive measures since the late 1990s. There is evidence that the politicisation of the unions and particularly their alignment with particular parties and neglect of worker's concerns have alienated some of their membership and weakened the unions. Nonetheless, on 3 and 4 September 2008 in Manzini and Mbabane, respectively, they were able to organise a demonstration in conjunction with other democracy activists that drew more than 10,000 people. SFTU called for a week of mass action from 15 to 19 September 2008, in the run-up to the House of Assembly elections. Attempts to blockade border posts on 18 September were unsuccessful, for police roadblocks turned away protesters and leaders were arrested.

 

SWAZILAND FEDERATION OF TRADE UNIONS

The Swaziland Federation of Trade Unions (SFTU) is a national trade union centre in Swaziland. It was founded in 1983 and has a membership of 83,000.The SFTU is involved in an on-going campaign to win democratic and pluralist reforms in Swaziland, as well as the removal of what it sees as restrictive labour legislation. Members of the SFTU have faced considerable opposition. In 1995 general secretary at the time, Jan Sithole was threatened with deportation, and later kidnapped and abandon in the boot of a car. In 2002, he was publicly threatened by a Swazi senator and government delegate to the International Labour Organization. The Congress of South African Trade Unions (COSATU) is an outspoken and active supporter of the SFTU. The SFTU is also affiliated with the International Trade Union Confederation.

 

SWAZILAND FEDERATION OF LABOUR

The Swaziland Federation of Labour (SFL) was created in 1994 as a breakaway union from the Swaziland Federation of Trade Unions. It has 12 affiliates covering manufacturing, retail, finance, IT, media and non-teaching staff, amongst other things. Originally 5,000 strong, the membership of the organisation has increased to 20,000. The federation has no full-time officials and relies on the full-time officers in its affiliated unions. The SFL also operates from affiliated unions' offices and has little finance of its own.

 

THE TRADE UNION CONGRESS OF SWAZILAND (TUCOSWA)

The Trade Union Congress of Swaziland (TUCOSWA) is the only trade union national centre in Swaziland born out of the amalgamation of the then Swaziland Federation of Labour (SFL) and the Swaziland Federation of Trade Unions (SFTU), and subsequently joined by the Swaziland National Association of Teachers (SNAT). The federation held its public launch on the May 1st 2011 and the government was represented by the commissioner of labour. Since its public launch the federation has been struggling with the government for its registration, which was finally granted on 25 January 2012, on the eve of a mass protest action, organised to put the pressure for the registration.

The Trade Union Congress of Swaziland (TUCOSWA) has been de-registered by government in a move widely seen as an attempt to silence the organisation ahead of its planned April 12 protest action. According to the Attorney General (AG) advised the Commissioner of Labour that TUCOSWA was improperly registered. This is further confirmed in a letter dated April 2, 2012, written by the AG, Majahenkaba Dlamini that was addressed to the secretary general of the organisation. The AG in the letter stated that it had come to his attention that the Commissioner of Labour registered the Trade Union Congress of Swaziland as a federation under Section 27 of the Indus-trial Relations Act, 2000. Dlamini further explains that in terms of Section 2, which was the interpretation section of the Act, ‘organisation’ was defined to mean ‘a trade union, staff association or employers association in good standing as the context may require. The AG elaborated to say that Section 27 even by any stretch of imagination cannot accommodate the registration of federations but only registration of organisations.

The Trade Union Congress of Swaziland not being an organisation in terms of the Act cannot therefore be registered under Section 27 as an organisation, which it is not. TUCOSWA First Deputy Secretary General Mduduzi Gina said this observation by the government was a total somersault as the defunct national centres were registered in terms of the Industrial Relations Act and that all the business federations, the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC) and Federation of Swaziland Business Community (FESBC) were registered under the same Act. Gina also pointed out that another contradiction, was that upon registration government welcomed and congratulated TUCOSWA for its formation as per a letter written by the Minister of Labour and Social Security, Lutfo Dlamini. The minister is said to have written the letter on March 16, 2012. In the letter, the minister states that the formation of TUCOSWA was a positive development and advancement of the union movement, chiefly because it was easy to work with a united front as opposed to a fragmented workforce.

It may seem the federation has been ‘banned’ for its statement in the media that it will destabilise the national elections in 2013. During its Founding Congress held on March 9 to March 11 at Esibayeni Lodge, TUCOSWA took the resolution to cause for a total boycott of the national elections. In the resolution, the federation highlighted that the current system of governance in Swaziland is one that is undemocratic, repressive and dictatorial and that the federation, shall cause for a total boycott of the national elections in 2013 unless the elections are held under a multiparty system.

Following the media publication of this resolution, on March 16, 2012 the Commissioner of Labour wrote to the federation and demanded confirmation or otherwise of the said resolution. In her letter to TUCOSWA, the acting Commissioner of Labour Khabo Dlamini described resolution as taking a ‘purely political’ stance on the issues affecting the federation, much against the provisions of the Industrial Relations Act, 2000. The acting commissioner’s understanding was that TUCOSWA was registered as a Worker Federation and its objectives would be in line with the ideals expressed in clauses 1 and 3 of the Resolution of 1952 concerning the independence of the trade union movement and the Industrial Relations Act, 2000 (as amended). The clause clearly demonstrates that the core and fundamental mission of a trade union is economic and social advancement of its members. In her statement, the commissioner expressed shock and dismay at the sudden change of the objectives for which TUCOSWA was registered. She viewed this as a serious misrepresentation of facts, which were material and influenced the commissioner in granting registration of the federation.

NON-GOVERNMENTAL ORGANISATIONS

There are a number of NGOs in Swaziland (there were 70 affiliated with the NGO umbrella body, the Coordinating Assembly of Non-Governmental Organisations (CANGO) in 2005 alone) and the regime governing them is loose. Civil society organisations in Swaziland are under the administrative ambit of the Ministry of Home Affairs; however they register with the Ministry of Justice and Constitutional Affairs". Registration is governed by Section 21 of the Companies Act of 1912. Of all these bodies less than a handful are of interest from an elections point of view.

CANGO formed an NGO Electoral Support Network with 15 organisations for the 2003 election and for the first time national election observers were deployed in Swaziland; some 108 observers were deployed in all the constituencies. EISA partnered with CANGO to produce workshop material and to train trainers and evaluate workshop outcomes. Attempts to repeat the exercise in 2008 were hampered by the EBC, which accredited only 10 observers. NGOs played little or no role in educating voters in the past and the Electoral Support Network focused instead on engaging the public on issues around constitutional reform. Some NGOs attempted a civic education programme to encourage voting for women candidates in 2003 and 2008, with limited success.

The Rule of Law crisis of 2003 as well as the growing socio-economic crisis, led to the founding of the SCCCO by a broad range of civil society actors, including trade unions, business organisations, and the Council of Churches, CANGO and lawyer bodies. In April 2008 SCCCO demanded the resignation of the members of the EBC on the grounds that their conduct "trampled on our constitution and our rights to due legal process, an independent judiciary, freedom of speech, freedom of the press and good practice in interpreting Statutory Law" and then filed a suit in July asking the High Court to declare the EBC illegally constituted.

In May 2004 civil society bodies such as churches and civic organisations came together, at the instigation of the Open Society Initiative of Southern Africa (OSISA), to form the National Constitutional Assembly (NCA), to oppose the implementation of the new constitution without popular consultation, and in June the NCA requested the High Court to rule that the Constitution Drafting Committee be obliged to hold public hearings. However, the Supreme Court ruled against the NCA in May 2008. (In May 2006, while still waiting for judgement on the earlier case, the NCA had launched a second application to the High Court, that the constitution be declared "null and void, of no force or effect". In the alternative, they contended that section 25 of the constitution, which provides for freedom of association, means that Swazis have the right to form political parties that are permitted to contest free elections.) In May 2008, the court rejected the application to nullify the constitution, saying that it was the will of the Swazi people, and declined to consider the issue of political parties.

THE CHURCHES

Christians are in an overwhelming majority in Swaziland (86.9 per cent of the population), but the churches generally shy away from direct political involvement. The largest single group is the League of African Churches, the umbrella body of the Zionist churches that was formed under the patronage of King Sobhuza II in 1937. Under the regency of Queen Labotsibeni, the Zionists formed close ties with the royal family and supplemented their commitment to traditional culture with an unswerving devotion to the monarchy, which they regarded as divinely instituted. The Zionists actively mobilised people to support the INM during the last multiparty elections in 1972. The Swaziland Conference of Churches (SCC) was formed in 1929 as the Swaziland Missionary Conference; dominated by evangelicals, it has remained staunchly apolitical. In 1976, the more liberal mainline churches left the SCC to form the Council of Swaziland Churches (CSC). The CSC has become increasingly aligned with the pro-democracy forces and was a founding member of the SCCCO and of the NCA (Cummergen 2000, 372, 373, 375, 376, 382; Kabemba 2004, 32). In 2008, the CSC informed the EISA Technical Assessment Team that it had managed to obtain accreditation for only 20 national observers, although it applied for the accreditation of 53 observers.

 

MEDIA FREEDOM

The new Swaziland constitution has been in place for more seven years and although it has a Bill of Rights that enshrines freedom of expression and freedom of the media, no discernible progress has been made in changing the existing restrictive media environment in the southern African kingdom. There are no legal protections for journalists and media workers in Swaziland despite the formal constitutional protection. In Swaziland, customary law, which has equal status with the Roman Dutch Common Law and statutes, continues to restrict freedom of the media and freedom of expression. Although, in theory, the constitution is supreme over all other laws, unwritten customary law wields enormous power in practice and because Swazi Law and Custom is not codified, it cannot be tested against the constitution

Tensions between the government and the independent media in Swaziland, which were high in the years preceding the signing of the constitution, remain so. In the past years the media have become quite vocal in terms of exposing issues of bad governance, corruption and fiscal irresponsibility, although there is still a tendency to ‘tread carefully’ with regard to the issues they address and the manner in which they do it. Cultural traditions that promote a culture of silence and non-questioning of authority have led to certain stories not seeing the light of day or to journalists exercising self-censorship on pertinent national issues. The media have also been the recipient of an onslaught of criticism from the entire spectrum of the national leadership including the King, Queen Mother, the Prime Minister, cabinet ministers, parliamentarians and traditional leaders.

They have all questioned the media’s right to press freedom, asserting that the media in Swaziland is too free and responsible for damaging the image of the country internationally. In their view the media is disrespectful and abusing its freedom by exposing issues that should not be addressed. The harassment of the media has been conducted under various guises, including protecting the country’s image, national security, ‘respecting’ others’ rights to privacy and ‘responsible’ reporting. In addition to this overt harassment, a more subtle form of self-censorship still exists in media houses in Swaziland. This self-censorship is enforced by unwritten, often ambiguous, cultural rules that restrict conduct. According to these rules, certain public figures and institutions are exempted from media and public scrutiny. These are enforced mostly by traditional authorities that have power to declare what is ‘unSwazi’ and what is not. In a society that still holds strongly onto its culture, traditional and cultural rules force journalists to tread carefully and cautiously when conducting their duties.

 

The constitution has made no discernible impact on the repressive media environment in Swaziland. Since 1973, the monarch (presently King Mswati III) has ruled by decree after Mswati’s father Sobhuza II suspended the constitution that had been in place since the kingdom gained its independence from Britain in 1968. The 1973 decree has not been formally rescinded since the constitution came into place. Despite the signing of the constitution, very little has changed in Swaziland since the constitution’s inception and the kingdom remains a non-democracy. The powers of the monarch over Parliament and the political executive remain unchanged. The king appoints members of the Cabinet and political parties remain banned in the kingdom (US State Department, 2008). In its report on the human rights situation in Swaziland in 2007, the US State Department (2008) noted that Swazi Government agents continued to commit or condone serious human rights abuses.

 

Human rights problems included: inability of citizens to change their government; unlawful killings by security forces; police use of torture, beatings, and excessive force; police impunity; arbitrary arrests and lengthy pre-trial detention; infringement on citizens' privacy rights; limits on freedom of speech and of the press; restrictions on freedom of assembly and association; prohibitions on political activity and harassment of political activists; restrictions on freedom of movement; discrimination and violence against women; poor enforcement of women's rights; child abuse; trafficking in persons; societal discrimination against mixed race and white citizens; antiunion discrimination and child labour.

 

MEDIA LANDSCAPE

The Swaziland media are overwhelmingly controlled by the state and used to advance the position and cause of the monarchy. The state owns one of the country's two daily newspapers, the Swaziland Observer, and its sister Saturday paper the Weekend Observer, as well as the radio broadcaster with the widest coverage, the Swaziland Broadcasting and Information Station and also the Swaziland Television Broadcasting Corporation, which eschews political content and focuses on entertainment. The private TV Channel Swazi is also strongly aligned to the monarchy. The private daily newspaper, The Times of Swaziland, is frequently critical of the government and has the highest circulation along with its sister papers the Saturday Swazi News and the Times Sunday. Among the smaller and less influential independent publications are Nation Magazine, a periodical news magazine, and the Voice.

With the exception of the Internet, the public and private media are tightly controlled by the Ministry of Public Service and Information. The Internet has become pervasive in the main urban areas and, though not yet fully exploited, has increasingly become a source of information outside of state control and critical of the government and the monarchy. There are also two small radio stations: Voice of the Church, and a community station. There is no code of conduct governing media reporting on elections or allocation of time to candidates in the state media.

In 2003, contesting candidates observed that "there seemed to have been some collaboration to ensure that both the Swaziland Broadcasting Corporation and other privately owned broadcasting stations gave aspiring MPs equal access. A wide range of observations was made by stakeholders on the coverage by the media in 2008. Generally, it was felt that:

ü  the media did attempt to keep voters informed, but did not recognise the role they should be playing as voter educators;

ü  coverage by the print media was better than that of the broadcast media; and

ü  Coverage by public media was biased and the private media were censoring themselves and inclined to favour some candidates over others.

Most of the media in Swaziland are government controlled. Swazi TV and the radio stations under the umbrella of the Swaziland Broadcasting and Information Services (SBIS) are in effect departments of the Swazi civil service. There is one independent television channel, Channel Swazi, which was created specifically to support King Mswati III. Although it is independent of the state, its journalism policy is to support the king. There are two newspaper groups in Swaziland: the Observer Group owned by a conglomerate that is effectively under the control of the Swazi Royal Family, and the Times of Swaziland Group, which has three national newspapers, which while independent of government nonetheless, exercises strict self-censorship, especially when reporting the activities of the king.

 

Generally, in the state and private sector, the government has kept a tight rein on media in recent years. In 1997, the Minister of Information and Public Service introduced the Media Council Bill. Some of the more draconian aspects of the Bill included the requirement that all newspaper owners had to have a degree in journalism and to live in Swaziland. The Bill was deferred in 1998 after strong domestic and international opposition to it, but the threat of its reintroduction surfaces from time to time to intimidate journalists; the most recent example of this was in November 2007.

 

MEDIA LAWS IN SWAZILAND BEFORE THE CONSTITUTION CAME INTO EFFECT

It is estimated that there are more than 30 pieces of legislation in place that restrict the operations of the media and none of these have been repealed to make way for the Bill of Rights. According to the then chief executive of state-controlled Swazi TV, these restrictive laws have resulted in lack of growth in the media industry, harassment and intimidation, strained relationships and mistrust between government and the media, weakened media organisations and lack of professionalism.

 

Some of the main laws restricting the media are as follows:

 

NATIONAL SECURITY AND SEDITION 1938

The Official Secrets Act, 1968, prohibits any person who possesses or has been entrusted, ‘by any person holding office under the Government’, with any code, password, sketch, plan, model, article, note, document or information, from communicating it to any unauthorized person, retaining it, failing to take proper care of it or using it ‘in any manner or for any purpose prejudicial to the safety or interests of Swaziland’. The penalty is a fine or a prison sentence of up to five years, or both. To convict a person under this Act, it is not necessary to prove that the accused was guilty of any particular act, but merely that ‘it appears, from the circumstances of the case or the conduct of the accused, that his purpose was a purpose prejudicial to the safety or interests of Swaziland’.

 

In accordance with the Sedition and Subversive Activities Act, 1938, a speech or publication is seditious if it is intended to bring the King, his heirs, successors, or government into contempt or encourage hatred of them. The Act defines ‘publication’ to include ‘all written or printed matter and everything, whether or not of a nature similar to written or printed matter, containing any visible representation or by its form, shape, or in any manner capable of suggesting words or ideas, and every copy and reproduction of any publication’.

 

Also seditious are publications or speeches that:

ü  Intend to encourage hatred or contempt of, or excite disaffection towards the administration of justice in Swaziland

ü  Promote feelings of ill will and hostility between different classes of the population of Swaziland.

 

The Act is a ‘draconian piece of legislation, the primary purpose of which is to provide for the suppression and punishment of sedition, that is criticism of the King and the Swaziland government’.

 

PROTECTION OF SOURCES

There are no laws, which specifically refer to the protection of the confidentiality of journalistic sources. The principle of the right of a journalist to protect their sources, which is a crucial element of media freedom and of freedom of expression and information generally, is certainly not respected in Swaziland. In March 2000 the Swazi Observer, a newspaper owned by a royal trust, was closed, reportedly because of financial difficulties, but it was generally believed to be because the Observer had refused to reveal sources for reports the Observer had published that were critical of the Prime Minister and the Commissioner of Police.

 

DEFAMATION AND THE RIGHT OFREPLY

Criminal defamation remains part of Swaziland’s laws dating back to the Cape Libel Act of 1882, which made it an offence punishable by two years’ imprisonment or a fine, or both, to publish a defamatory libel that is to injure the reputation of a person and expose him or her to hatred, ridicule and contempt. The defences available are: (a) truth and public benefit (b) fair comment (c) privilege. The Criminal Procedure and Evidence Act, 1939 also covers the defences against a charge of defamation.

 

Swaziland offers specific protection for the person of the Ndlovukati (Queen Mother). In the Protection of the Person of the Ndlovukati Act, 1968, ‘A person who does or attempts to do, or makes preparation, or conspires with any other person, to do, an act with the intention of bringing into hatred or contempt, or of inciting disaffection or ill will or hostility against, the person of Ndlovukati, shall be guilty of an offence’. Norris (ref) contends that in Swaziland there is even wider acceptance that those in official positions have need of greater protection. Aside from the specific legal protection, there is a wider specific assumption in Swaziland that public figures warrant greater protection for reasons of cultural tradition.

 

FREEDOM OF INFORMATION

Swaziland has no freedom of information legislation. The Official Secrets Act and other practices restrict the media in their efforts to obtain information and report freely on the activities of government. Access to information from the government and officials depends on goodwill and contacts rather than on any clearly established rules.

 

OBSCENITY

The Obscene Publications Act, 1927 prohibits the importation, making, manufacture, production, sale, distribution, or public exposure of indecent or obscene material. No exemption is granted to material of an artistic, literary or scientific nature. The penalties are a fine, or a prison sentence of up to six months, or both. Possession or ownership of indecent or obscene materials or objects is similarly punishable by the same Act. Furthermore, officials may, upon receiving a complaint which they believe to be well founded, seize impugned material by force and destroy it where warranted. Such power is subject to an appeal to the courts by the owner. The Act does not define what it means by the terms ‘indecent’ and ‘obscene’. Presumably, this is meant to refer primarily to pornographic material.

 

REPORTING OF COURTS AND PARLIAMENT

Section 3 of the Parliamentary Privileges Act of 1967 guarantees freedom of speech and debate in Parliament and states that this freedom cannot be impeached or questioned in any court or place outside Parliament (Norris, 2001). The Magistrate’s Courts Act, 1939 grants magistrates the power to hold trials in camera or to exclude females, minors and the public generally ‘in the interest of good order or public morals’. The Criminal Procedure and Evidence Act of the same year extend this power of the magistrate to the preparatory examination phase of a case. The Act adds a further reason, which may justify in camera proceedings. A magistrate may decide it is in the interests of ‘the administration of justice.

 

The Magistrate’s Courts Act, 1939 also guarantees the public’s right of access to records, stating that ‘the records and proceedings of the court shall in all cases be accessible to the public, under the supervision of an officer of the court at convenient times and upon payment of such fees as may be prescribed by the rules’.

 

PROSCRIBED PUBLICATIONS ACT, 1968

A particularly notorious piece of legislation impacting on the print media sector is the Proscribed Publications Act, 1968, which empowers the Minister for Public Service and Information to ban publications ‘if the publication is prejudicial or potentially prejudicial to the interests of defence, public safety, public order, public morality or public health’.

 

BOOKS AND NEWSPAPER ACT, 1963

Section 4 prohibits anyone from printing or publishing a newspaper in Swaziland unless the editor of the newspaper is resident within Swaziland and without a registration certificate issued by the Registrar of Books and Newspapers. Where a newspaper has more than one editor, the chief editor has to be resident in Swaziland. The effect of this is that newspapers have to be locally controlled and registered in order to be disseminated in Swaziland.

 

CINEMATOGRAPH ACT, 1920

The primary purpose of the Act is to control the making and public dissemination of films, and of pictures and placards relating to the films. It is prohibited for anyone to make a film showing African gatherings or African life without the prior permission of the Minister for Public Service and Information. The Act further prohibits films to be made of certain Swazi cultural occasions and celebrations namely the Incwala Day, the King’s Birthday, the Umhlanga (Reed Dance) and the Somhlolo (Independence Day) without the Minister’s written consent. The Minister has an unlimited discretion to grant or to refuse consent.

 

A particularly draconian aspect of the legislation is that it empowers the Minister to declare any picture to be objectionable (within his complete discretion) if he believes that the picture ridicules or shows contempt for any member of the King’s naval, military or air forces; scenes tending to ‘disparage public characters’; scenes calculated to ‘affect the religious convictions or feelings of any section of the public’; scenes ‘suggestive’ of immorality or indecency; executions, murders and ‘other revolting scenes’; scenes of ‘debauchery, drunkenness, brawling, or of any other habit of life not in accordance with good morals and decency’; scenes depicting ‘successful’ crime or violence; and scenes which are ‘in any way prejudicial to the peace, order or good government of Swaziland’.

 

2005 CONSTITUTION ON MEDIA FREEDOM

There are doubts about how much the constitution truly represents the wishes of the Swazi people. The constitution became effective in February 2006, but its writing took 10 years to complete, this was after pressure from within Swaziland and the international community had been building for several years to modernise the political system, particularly to draft a constitution containing a bill of rights. In 1996, King Mswati III appointed a 30-member Constitutional Review Commission (CRC) to examine the constitutional system, determine citizens’ wishes regarding a future system of government and to make recommendations on a new constitution. This process took five years.

 

The King expressly requested the International Bar Association (IBA) to peruse the draft constitution, once it was completed, and to forward comments to him and to the Constitutional Drafting Committee (CDC), which was set up in 2002. The conduct of the CDC remains a secret to this day. The Swaziland High Court confirmed this in November 2007 when it denied Swazi people the right to see records about how the Swaziland Constitution was drawn up. The High Court said that nobody was allowed to see the records containing information on the way the constitution was drawn up, and what the people said during the period the constitution was drafted, because the CRC had itself said that its deliberations should remain secret.

 

Even the media were denied the opportunity to report and comment on the CRC while it was in operation. In its report published in 2003, the IBA called the draft constitution ‘flawed’ and reported that one critic went so far as to call it ‘a fraud’. The IBA report states, ‘The extent to which individual Swazis were consulted has also been questioned. The CRC did not keep records of the submissions it received and media coverage of submissions was apparently banned’.

 

There is therefore no formal record of how Swazi citizens presented their views and of what in fact they said to the CRC. The IBA said that information was elicited in a highly charged atmosphere where individuals were reportedly asked, in the presence of chiefs, whether they wanted to retain the King and whether they preferred political parties. In such circumstances, the overwhelming majority of people are said to have confirmed the ban on political parties being maintained, that the executive powers of the King should be maintained, the position of traditional advisers to the King strengthened, and that Swazi customs should have supremacy over any contrary international rights obligations.

 

Under such circumstances was the constitution born. The main provision of the Swazi constitution as it relates to freedom of the media and freedom of expression is Section 24, which states:

ü  A person has a right of freedom of expression and opinion

ü  A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say:

v  freedom to hold opinions without interference

v  freedom to receive ideas and information without interference

v  freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons)

v  freedom of interference with the correspondence of that person

 

ü  Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:

v  that is reasonably required in the interests of defence, public safety, public order, public morality or public health

v  that is reasonably required for the purpose of:

o   Protecting the reputations, rights and freedoms of other persons or of the private lives of persons concerned in legal proceedings;

Ø  preventing the disclosure of information received in confidence;

Ø  maintaining the authority and independence of the courts; or

Ø  regulating the technical administration or the technical operations of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication

o   That imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of the law is shown not to be reasonably justifiable in a democratic society.

 

TO WHAT EXTENT HAS THE CONSTITUTION IMPROVED MEDIA FREEDOM?

The Swazi government is keen to give the impression that it is committed to reforming the 30-plus restrictive media laws that currently exist in the kingdom, but media stakeholders doubt its sincerity. In 2005, a Media and Information Policy was adopted that proposed legal reforms with a view to update and/or introduce supportive mechanisms that address the needs of the mass media environment. The policy also recognises the importance of the right to access to information.

 

Following this new policy, in 2007 the government introduced seven parliamentary bills, including the Freedom of Information and Protection of Privacy Bill, the Swaziland Media Commission Bill, the Swaziland Public Broadcasting Corporation Bill, the Swaziland Broadcasting Bill and the Books and Newspapers Bill. What all these bills have in common is that they purport to place the interests of the media at their centres and they have not originated from within Swaziland. A Commonwealth Secretariat consultant was engaged to draft the bills, relying for inspiration on bills that presently exist in democratic countries. The fact that Swaziland is not a democracy was apparently overlooked.

 

Members of a workshop held for media stakeholders to discuss the bills before they were piloted in Parliament saw the unreality of the approach taken by the consultant and concluded that their own input was irrelevant because ‘traditional authorities’ in the kingdom had not been consulted on the bills’ contents. Since nothing happened in Swaziland without the consent of these ‘traditional authorities’ the bills as presently written had no value, they said. The constitution itself in Section 2 states, ‘This Constitution is the supreme law of Swaziland and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void’.

 

This should mean that all the anti-media laws that existed before 2006 are no longer operative. It is impossible to say with certainty that the laws are now void, since their validity or otherwise has not been tested in the Swazi courts. There are, however, reasons to be pessimistic. The US State Department, in its 2007 Country Report on Swaziland Human Rights, noted that although the constitution provides for freedom of speech and of the press the government limited these rights in practice and journalists practiced self-censorship. The Swazi media are all too ready to toe the line when it comes to its relationship with power. When addressing editors in April 2006, the Swazi King commended the media for its ‘patriotism and maturity’ during a border blockade staged by the Congress of South African Trade Unions and banned political parties in an attempt to force political change in Swaziland. The media had joined trade unions in opposing the blockade. Later in the year, the Swazi Prime Minister praised the media for a ‘job well done’.

 

The media are not strong in Swaziland and find themselves in deep trouble if they voice criticism of the ruling elite, especially King Mswati III. In March 2007 the Times of Swaziland Group of Newspapers was forced into publishing an abject apology to King Mswati III after the Times Sunday ran a news commentary sourced from the international news agency Afrol News in which the ‘authoritarian’ king was criticised for giving a bad impression to foreign investors. Such open criticism of the king is not allowed in Swaziland (not even in so-called independent newspapers like the Times Sunday). The newspaper group was forced to publish an abject apology or face immediate closure. Other incidents in which the media were harassed or restricted since the constitution was passed include the following.

 

MAY 2006

King Mswati III banned newspapers from writing about his wives without his permission, even while covering official events, after the Times Sunday interviewed one of his wives (with her consent) while she was sick in hospital. This was the second time in 12 months that the Swazi king gagged the media from reporting about royalty. It should be noted that this ban was not reported within Swaziland. This banning by the king simply continued a trend that had been operating since before the new constitution: in 2005, for example, the king ordered the media to stop writing about his lavish spending after newspapers published that he had purchased US$500 000 worth of luxury vehicles for his 13 wives.

 

OCTOBER 2006

Parliament ordered the Times of Swaziland to apologise for an opinion expressed in the newspaper that referred to a select committee that investigated the operations of the Swaziland Broadcasting and Information Service as a ‘kangaroo court’. The Times declined to apologize.

 

NOVEMBER 2006

The then Public Services and Information Minister S’gayoyoMagongo instructed Swazi TV to reinstate an employee the station wished to dismiss. Swazi TV complied with the instruction. In Parliament the minister said Section 75 of the constitution empowered him to do this as it charges ministers with responsibility ‘for the policy and general direction and control’ over their departments.

 

DECEMBER 2006

The Times of Swaziland came under attack by a committee that was putting together a case to demand the return of land from neighbouring South Africa which Swaziland claimed belonged to it. At a press conference members of the committee including the chair Prince Khuzulwandle, a member of the Royal Family, criticised the newspaper for collecting views on the issue from members of the public. The response the newspaper received was hostile to the demand for restoration prompting the committee to question why the newspaper asked ordinary people instead of people who were knowledgeable on the subject.

 

FEBRUARY 2007

The king’s chief executive officer Bheki Dlamini barred journalists at a press conference from asking the king questions relating to the recently-formed Swaziland Police Union, whose formation had shaken the Swazi establishment.

 

JUNE 2007

The Minister for Health and Social Welfare Njabulo Mabuza banned health workers from talking to the media in response to a number of stories highlighting the impact of a critical drug shortage. Workers were forbidden to have any type of communication, including interviews and casual or ‘indiscreet’ conversations, whether at clubs, hotels, bars or private parties. Journalists were also barred from Mbabane Government Hospital, the country’s key medical facility, whose problems had been highlighted in the press. These problems were considered by the press to be typical of the wider crisis afflicting the healthcare system. In fact, it turned out that the ban had been in position for some years previously but was only being enforced now following a series of news reports in newspapers about deaths in government hospitals.

 

October 2007

The Times of Swaziland tried to find out how much it cost taxpayers to send the Prime Minister Themba Dlamini on a trip from Swaziland to the Bahamas. The newspaper was told it could not have the information because it was ‘classified’ information. The newspaper had also been trying without success to get government to disclose the names of companies that won tenders for government business.

 

NOVEMBER 2007

The Swazi House of Assembly set up a select committee to investigate the editor of the Times Sunday Mbongeni Mbingo following a comment piece the newspaper ran criticising the House Speaker for not allowing a debate to take place on possible amendments to the kingdom’s constitution. The select committee exonerated the editor stating his rights to freedom of expression under the constitution. However, what seemed like a victory for the free press was illusionary because the select committee decided it wanted Parliament to accredit journalists who covered the proceedings of parliament, in effect giving the government control over who could report and who could not. The committee also called for the reintroduction of the defunct Media Council Bill (that had originally been tabled in 1997), which, among other things, would require journalists to be qualified and registered with some central body.

 

CONCLUSION

Although the new constitution guarantees freedom of expression and the media, the long list of anti-media laws that still exist make the environment hostile for the media. As the ex STVA CEO commented as long ago as 2003, the existence of such laws leads to lack of growth in the media industry, harassment and intimidation, strained relationships and mistrust between government and the media, weakened media organisations and lack of professionalism. The experience since the constitution came into effect in 2006 is that very little has changed and journalists continue to operate in a hostile environment.

 

Certain cultural values continue to foster a climate of silence, in which those in authority are not questioned. These limit the freedom of the media to engage in important debates, for example about what may be done to tackle the kingdom’s high levels of poverty and HIV/AIDS, spiralling corruption, poor economy and lack of international confidence. Experiences to date suggest that the ruling elites in Swaziland have no interest in change. At present, they control access to most of the media in Swaziland and can decide what does and what does not get talked about. This helps to a large extent to keep them in power and there is no reason to suppose that they will give up this power willingly anytime soon. It will be very difficult to break this power, but with continued advocacy for democracy, both from within Swaziland and from the international community, it can be done [[43]].

 

SWAZILAND MEDIA COUNCIL BILL1997 [[44]]

In October 1997, the government drafted a Media Council Bill. In an attempt to rein in a press that has been perceived as becoming steadily ‘irresponsible’, the Bill was enacted to promote ‘responsible standards of journalism’. Among other things the Bill sought to establish a Swaziland media council, composed mainly of non-journalists (only 2 out of 7 are to be journalists) [[45]]. The proposed Swazi Media Bill is aimed at introducing a government-appointed media council. The council will, among other functions, administer a government-imposed code of conduct, and oversee the licensing of journalists operating in the Kingdom. The stipulation is that no person in Swaziland will be able to work as a journalist or own a media institution unless they are licensed by this council. The requirement for licensing is that a journalist must be a resident of Swaziland, above the age of 18, and be in possession of at least five O level certificates and a journalism degree or diploma. Operating without a licence or violating the statutory code of conduct will result in a fine or prison sentence. Most of these functions would obviously best be carried out by journalists themselves, yet less than one third of the proposed council are supposed to be journalists.

The very idea of a government derived Media Council Bill drew the ire of Swaziland journalists and they reacted accordingly. At parliamentary hearings on the bill, journalists and other stakeholders condemned the Bill in its entirety, rejecting in particular the fact that it is a ‘government council’ rather than a ‘media council’ that ought to be controlled by media practitioners. The whole idea of the Bill was seen as a government design to muzzle the press and establish what would amount to government-say-so journalism. Condemnation came from various quarters [[46]].

The Swaziland National Association of Journalists (SNAJ) rejected the Bill entirely, noting that it portrayed Swaziland government as intolerant and totalitarian, as an abuser of human rights, as a paternal censoring authority. The Media Institute of Southern Africa (MISA) criticized the Bill as a violation of the Windhoek Declaration on the establishment of an independent and pluralistic African press and that the whole exercise was done in bad faith. The institute condemned the Bill as a ‘draconian piece of legislation that seeks to impose totalitarian control on the practice of journalism in Swaziland’ (ibid).The Swaziland Federation of Trade Unions (SFTU) dismissed the Bill as ‘introducing jungle justice and kangaroo tribunal to deal with violators of its objectives which are themselves a gross violation of fundamental rights and bypassing the usage of normal judicial system.’ More importantly, the union noted that a further repercussion of the Bill would include loss of jobs for workers; the subjection of the public to a culture of silence and to indoctrination; the undermining of the dispensation process and the closure of some media houses and publishing companies which would lead to an exodus of investors’ (ibid)[[47]].

A media council whose regulations are compulsorily drawn up partly by government cannot claim to be truly self-regulatory, especially if the regulations have to be approved by Parliament and passed into law. Any act of establishing a media council by law brings the body under the control of the state and can neither be self-regulatory nor voluntary. It also carries with it the dangerous consequences of defining journalists by reference to minimum qualifications and registration. All these are objectionable

THE KING

The politics of The Media Council Bill was obvious. However, the most serious political challenge to press freedom in the country was in the liphovela issue. At the 1999 Reed Dance (an annual traditional national ritual), the King (and Head of State) as is customary, picked one of the maidens as a possible future bride. The young girl becomes a fiancée (liphovela) and possibly a wife later. The young girl chosen that year was put under the searchlight by the editor of the Sunday edition of the Times of Swaziland, Bheki Makhubu. The resulting story was to the effect that the young girl was a high school dropout, a truant and generally a ‘naughty girl’. The story noted that the girl lacked discipline and was kicked out of two schools in two years.

This story raised a lot of dust in the nation. It was condemned by many traditionalists and loyalists as being in bad taste and serving only to damage the girl’s reputation and that of the royal household. Some others even saw it as a way of getting at the King. Yet others thought the media had no business whatsoever revealing such details about the liphovela - no matter how true. However, the editor defended the publication as an accurate story and of interest to the nation. The people had a right to know what their leader was getting into and the background of a possible future queen. The ability to write about such issues would be the quintessence of press freedom. The story sparked one of the hottest public discourses in Swaziland.

At first, the Times of Swaziland management published an editorial in support of Makhubu’s work. Soon after it did an about-turn and backed down, obviously under pressure from political and national authorities. In addition, even before the dust had settled, Makhubu had lost his job. Worse still, he was arrested and charged with criminal defamation. When the matter appeared in court the Chief Justice, before who Makhubu appeared chastised the state for ‘wielding big guns for small flies’. He was saying in effect that the case was not as serious as the state was making it out to be. He argued that if the King’s fiancée felt aggrieved, she could file a lawsuit against Makhubu [[48]].

The judge’s observation was a victory of sort for journalism. However, the whole saga underlined the extent to which freedom of the press could be politicized. It exposed the ease with which journalists could be intimidated - making journalists reluctant to tackle serious issues since management would dump them once they draw the ire of authorities in the country.

RESTRICTION AND SUPPRESSION

The liphovela story and the media council bill debate generated a lot of interest in foreign media. The issues were carried in the South African Press, the BBC, VOA and similar networks. Comments in these media mostly expressed concern about the suppression of freedom of expression in the country. In a place like Swaziland, the media can be subjected to two types of government control: coercive and manipulative (as was the case in South Africa before democratic rule). Coercion includes legislation that determines who may publish and what may be published, as well as less direct measures such as intimidating the press into self-censorship. Manipulative control comprises the extensive state machinery used both to suppress unfavourable information and to promote a positive image of official policies at home and abroad. These two modes of control appear evident in the two issues above.

Generally, when there is restriction and suppression, the press tends to go underground, toes the government line or strives to act as counterpoise to government. The size of the country and the nature of Swazi society would not provide a conducive environment for the operation of an underground press. Not only would the clientele for such a press be hard to establish, there would be nowhere for the press to hide even if it goes ahead to function. Therefore, the only other option left in the face of perceived government restriction, outside of joining the government, is to play an adversarial role and to act as counterpoise to government. Unfortunately, the responsibility for playing such a role can only fall on very few shoulders.

First of all, the electronic media in the country - radio and television - are a monopoly of government. The journalists there are essentially civil servants and must function as such. The other station that broadcasts from Swaziland is Trans World Radio (TWR), a Christian entity that steers clear of political issues. Similarly, another radio outfit, the Christian Media Centre, is primarily concerned with the production of Christian programmes. Both have no impact on the political scene and their attention to the social scene is often limited to areas of morality.

The country has a number of newspapers in circulation but there are two main newspapers - The Times of Swaziland and The Swazi Observer. The Times, which is privately owned, has been in existence for about a century. The Observer is, strictly speaking, not a government newspaper. However, it is owned by the Tibiyo Trust whose head is the King. It is therefore generally perceived as a pro-government newspaper. It tends to exercise a lot of self-restraint when dealing with national issues whereas the Times is usually more outspoken and less reluctant to be confrontational.

It is, therefore, the Times that have tried to play the adversarial role and counterpoise to government. It allows its pages to be used as a forum for the expose and discussion of controversial issues. For instance, in 1997 and 1998, the Swaziland National Association of Teachers (SNAT) was at loggerheads with government regarding pay and other conditions of service. State of tension and insecurity prevailed as teachers went on strike and marched all over the country. Concerned about what this would do to the country’s image, government decided to reduce the amount of visibility SNAT was receiving in the media. SNAT claimed that government issued instructions to the electronic media not to give access to its officials. Although government denied this, the reality seemed to bear SNAT out. There was an obvious news blackout on the association and its activities except for pro-government news on the crisis.

This must be seen against the background that Swaziland often promotes an image of a homogenous, peaceful and beautiful country. Such disruption runs counter to the image. The incident cast some doubt not only on the quality of education in Swaziland but on the claim to peace and security. At about the same period, the Swaziland Federation of Trade Unions (SFTU) had organized stay-away strike actions over a series of demands for workers. There was a protracted confrontation with government that disrupted several services in the country. Although there was a tacit appeal by government to the country’s media not to give prominence to the disruptive labour activities, the print media in exercise of their freedom and in pursuit of the principle of objectivity gave the events maximum publicity. It was almost like an act of defiance.

Then there are the radical ‘progressive’ associations in the country (officially banned) who are fundamentally opposed to the nature of state governance. The two most prominent of these associations are the Swazi Youth Congress (SWAYOCO) and the People United Democratic Movement (PUDEMO). They have consistently attacked the country’s Tinkhundla system as undemocratic and anachronistic, and want it abolished. The Tinkhundla is the system in which the country is divided into traditional centres where the people supposedly meet periodically to discuss issues of community interest and transmit their ideas to government. Through the system, the transmission of information from the King to his subjects is supposed to be improved and self-development encouraged and promoted. The Tinkhundla creates the foundation for the monarchical system of governance in Swaziland in which the King is the Head of State - although he is advised by a cabinet headed by the Prime Minister.

These ‘progressive’ groups are opposed to what they refer to as an anachronism that is against the basic principles of modern democracy and fosters authoritarianism. They argue that the system discourages freedom of expression and limits the people’s contribution to policy decision making. They vent their discontent usually on the pages of the print media notably the Times. In addition, the world outside picks up all of these pieces of information about continued discontent in Swaziland.

CRITICAL MEDIA

Then in 1998 and 1999 there were two bomb explosions - one destroying the office of the Deputy Prime Minister (the headquarters of the Tinkhundla) in 1998 and the other destroying one of the Tinkhundla in Mahlanya. Both were blamed on the ‘progressives’ who, of course, denied them, and refused to be intimidated. On the contrary, they have intensified their attack on the country’s political system and have used every opportunity at home and abroad to demonstrate against the government and state of affairs in the country. All of these activities are often publicized in the country’s print media. Such publicity has tended to create a poor image for the Swazi government abroad. The scathing attacks on governance are given prominence in the Times. It is arguable whether the Times publicizes these activities of ‘progressives’ out of spite for the government or simply a pursuit of the principles of objectivity and fair-play. However, when one looks at some news analysis and commentaries on national issues in the Times, there would be the tendency to assume the former.

 

In the Times, newspaper group there is a lot of vituperation against the government and government officials. Columnists spares no words, no matter how harsh, to criticize government officials and parliamentarians as well as princes who are seen to belong to a special class in the society. In several of these columns, they have clearly referred to cabinet members (by name) as rogues and corrupt. They have accused government of incompetence and lacking a sense of direction, and also have attacked the powerful princes of emptiness and lacking in moral authority to lay any claim to leadership positions in the country (and this is in a country where princes are almost untouchables).

In many swipes at government and its functionaries, the Times newspaper has exposed a lot of inadequacies in governance in the country. When all of this is added to continued attack on government by the radical groups, which enjoy a lot of media visibility, a picture emerges of an environment that is not conducive to (foreign) investment. Since the Swazi Observer and the government controlled broadcast media concern themselves essentially with mundane issues, steering clear of serious and controversial issues, the Times would be the logical choice for information gathering by potential investors.

POLICY IMPLICATIONS

Government and the media-especially the independent media - do not appear to be working in concert towards development. The patron-client relationship that seems to exist between them has elicited some degree of resentment on the part of the press that has manifested itself in the kind of confrontational stance taken by the press over the past couple of years. The journalists write as if to dare the government. This is unhealthy for the country in its dysfunctional consequences.

 

In addition, the very slow pace of democratization is helping to push to the fore the disruptive activities of organized resistance groups, which receive more than adequate publicity in the media and suggest an unhealthy environment in which to do business. The government cannot continue to bury its head in the sand and proclaim that all is well. Nobody seems to be listening to that. It has to be more proactive in dealing with the situation. First, there has to be a sense of direction for communication interaction in the country. Government and all stakeholders must come together to discuss and agree on a framework that will allow everyone work towards the same goal through popularly prescribed channels and modes.

 

A national communication policy would provide such a framework. It creates an environment in which the different parts of the communication process in the country can function in concert. Such a policy identifies the communication goals of a nation and prescribes ways of attaining them. It comes about as a national consensus. It then ascribes roles to different bodies in the society who can contribute to the attainment of the set goals. More importantly, it acts as a guideline for communication relationship between government and the press to avoid the perpetual movement on a collision course by both parties. It eliminates, to an appreciable degree, the mutual suspicion between government and the press and dampens the latter’s zeal to be defiant.

Swaziland does not have a national communication policy. It is now imperative to have one. There had been moves in this direction. In 1992, a consultative meeting was held in the country to try and formulate a communication policy for the country. Nothing has come of it yet. Government must now look into it seriously as a matter of policy.

Press freedom has become a very important political issue in Swaziland. Government restrictions and perceived patronizing with regard to the media have obviously not gone down well with some sections of society. In general, the government appears reluctant to hasten the process of democratization both in the area of communication and the general area of governance, thus creating problems for itself. The media need information to function and when they are denied this, they can react in several ways, one of which is being critical of government and its policies - and help paint an unfavourable picture of the country to the outside world. Politics should not be allowed to feature too prominently in the consideration of press freedom, because it has a way of affecting other aspects of national life. The potential of this in the area of economic growth has been identified. This calls for a very serious reconsideration of policy issues by government.

 

WEBSITES VISITED

www.biggameparks.org

www.yongenawe.com

www.chr.up.ac.za

www.times.co.sz

www.gov.sz

 

 



[[1]] A law professor and king Mswati’s brother.

[[2]] Decree No.2/2001, inter alia, reinstated and extended the 1993 Non-Bailable Offences Order. Its provisions attacked the independence of the judiciary and on key issues removed the right to legally challenge actions of the executive. This decree was hastily repealed and replaced by Decree No.3 of 2001, which, however, retained the provisions of the 1993 order (as amended) denying the court’s jurisdiction to grant bail in certain cases. Consequently, in 2002 two separate challenges were launched against decree no.3 on behalf of Ray Gwebu and Lucky Nhlanhla Bhembe v State. They had been denied bail in terms of this decree. The high court had dismissed their applications. The Appeal Court ruled that in terms of the 1973 Decree and the 1978 King’s Order- In-Council, the king had no authority to issue decree no.3 as it was in direct conflict with the 1973 proclamation which preserved that part of the 1968 constitution allowing the high court unlimited original jurisdiction in criminal and civil matters, including the authority to consider an accused persons right to bail. The Appeal court then ruled that decree 3 of 2001 was invalid and ordered that the cases of the two appellant’s should be referred to the high court for a decision on bail. This ruling was denounced by the PM as an attack on the powers of the king and contrary to the interests of the country.

[[3]] Swaziland National Ex-Miners Workers Association and Another v The Minister of Education And Others Civil Case No. 335/2009.                                        

[[4]] The Swaziland National Ex-Mine Workers Association (SNEMA) is an organisation of Ex-Miners who at one point were employed in mines in South Africa. The organisation has over 700 members. Many of the members have sustained injuries or illness from working in the mines, and have been declared redundant. In addition, many of the ex-mineworkers have not been compensated for these injuries or paid the pensions they are due. SNEMA is not a political organisation as such, taking a more broad rights-based approach in support of Swaziland's poor; particularly in relation to procuring the unpaid compensation that, they believe they are due from the mining industry.

[[6]] Chief of Nkamanzi in the Northern Hhohho region

[[7]] His country of birth is Lesotho

[[8]] The Nation Magazine, August 2011 edition, page 14

[[9]] Delivering a judgment in the civil case of Aaron Mkhondvo Maseko versus The Commissioner of Police, Justice Masuku said; “It would indeed be surprising if His Majesty would have directed as alleged that the applicant’s cattle should be seized at all and as it was under the barrel of a gun without any due process of the law. I say so considering His Majesty’s public remarks, of which this court can take judicial notice, such as during the recent opening of the Hluthi Magistrate’s court and the police station on or about September 28, 2010, where he stated unequivocally in the presence of inter alia: the judiciary, executive, parliamentarians and the police that the Swazi people must avoid taking the law into their own hands. The actions of the Police and macaleni in this context, are in direct contradiction to His Majesty’s directive to the people of Swaziland and it would be hard to imagine let alone accept and thus incomprehensible that His majesty could conceivably speak with a ‘forked tongue’ saying one thing to his people and then authorizing his officers to do the opposite. I reject this notion as totally inaccurate and wrong, and which cannot be apportioned to the venerated office of His Majesty.”

[[10]] Legal Notice No.29 of 3 April 2003

[[11]] Evicted residents of KaMkhweli and Macetjeni brought a series of applications to the high court from late 2000 until November 2002. They had been forcibly evicted from their homes following their refusal to accept one of the King’s brothers as their chief. With one exception, the courts upheld the right of the evictees to return to their homes. The government through the agency of the police ensured that they could not return to their homes. In the process, the government defied a number of court orders that compelled them to allow the evictees to return to their homes. Subsequently the court ordered the committal to jail of the Police commissioner for contempt of court.  Justice Masuku remarked that their (government) contempt of court rulings was an injury to the judiciary, entire government and nation, and that it robbed the court of irredeemably of its esteem and dignity, reducing it to a toothless institution which issues inconsequential orders that may be defied at will and with impunity.

[[12]] The government lodged an appeal against the ruling. However, before the Appeal court had delivered its ruling, the Appellate judges were summoned to appear before the king. The kings accused them of undermining the monarchy and were ordered not to rule against the government in this case and the pending case of Gwebu and Bhembe v the King. The judges advised the king that they had not reached judgment in these cases and their rulings were not open for discussions. The Appeal court upheld the high court ruling against the government. The court confirmed, further that the order of immediate committal to prison of the police officials concerned was justified, in view of their persistent and flagrant disregard of court judgments. No serious effort was made by anyone in authority to ensure compliance with the order of committal of the two, or, alternatively ensure that the order allowing Macetjeni/KaMkhweli evictees’ unimpeded access to their homes was obeyed. The police commissioner was openly defiant and even declared that only God can issue instructions for his arrest. The then Prime Minister announced that His majesty’s government would not obey the ruling of the Appeal court which ordered the committal to prison of the Police commissioner for repeated contempt of court. This statement precipitated the resignation en masse of the Appeal court judges.

[[13]] Magwagwa Mdluli announced the transfer of Industrial court Judge, Kenneth Nkambule and the appointment of a private attorney the late Alex Shabangu as judges of the high court. Nkambule was direct swoop with masuku

[[14]] The late Paul Shilubane

[[15]] Lindiwe khumalo Matse

[[16]] Justic Maphalala, a long time practicing attorney was involved in the drafting of the Kingdom’s constitution. He was the presiding judge in the high court when the Swaziland Ex-Miners Association lost their case against government, regarding the rollout of free primary education.

[[17]] Traditional elders comprising of chiefs, politicians and those in the inner circle of the Royalty

[[18]] Times of Swaziland Mar 24,201, His Majesty King Mswati III acted in terms of Section 153 of the Constitution to appoint Mumcy Dlamini as High Court Judge. The new DPP will be Nkosinathi Maseko, the JSC also announced.

[[19]] Act No 13 of 1982, section 15 read with section 4.

[[20]] Id, section 3. Contrast this with the provision under section 113 of the 1968 Constitution, which provides for only three members of the JSC – the Chief Justice, the Chair of the Public Service Commission and one other member appointed by the King.

[[21]] Id, section 3(5)

[[22]] Id, section 5(2)

[[23]] Id, section 5(1)

[[24]] 1968 Constitution, sections 98(1) and 106(1)

[[25]] Ibid, section 106(2).

[[26]] Judicial Service Act, section 5(2)(c)

[[27]] In breach of S 98 of the 1968 saved clauses of the constitution.

[[28]] Times of Swaziland, 14 April 2012

[[29]] Section 13 of the 2005 constitution establishes them

[[30]] Section 231 of the 2005 constitution

[[31]] Section 13

[[32]] Ntshangase and Others v Royal Highness Prince Tfohlongwane NO and Others

[[33]] Jim Gama

[[34]] Prince Tfohlongwane who is chairman of the Swaziland National Council Standing Committee

[[35]] The deceased’s family and certain residents of this area rejected this contention. They allege that although the eviction order had been issued on the 16th of August 1995 by the Shiselweni Magistrates Court, this order was set aside by way of a default judgment by the High Court. This was followed by a judgment of the Acting Chief Justice confirming the nullity of this order. The judgment of the learned Acting Chief Justice records that it was conceded by the then Attorney General, Phesheya Dlamini that the proceedings pursuant to which an eviction order was granted were irregular.

[[36]] Lindimpi and Bhekuyise Ntshangase

[[37]] Times of Swaziland thursday July 12 2007

[[38]] Mtfuso II & Others v Swaziland Government – Court of Appeal, Case No. 40/2000)

[[39]] Chief Mtfuso II And Others V Swaziland Government And Later Cases. Their eviction was premised on the Swazi Administration Order, 1998, S 28(3) that the court later declared as invalid and thus the evictions were found to be illegal since they were premised on a law that was invalid.

[[40]] Legal Practitioners Act, No 15 of 1964, section 34

[[41]] The Swazi Observer 28 January, 2012 12:00:00

[[43]] Richard Rooney, Media Commentary, 2012

[[44]] http://wn.apc.org/fxi/Pressrel/swazme2

[[45]] Akinkugbe, O. (1999) ‘Government and Economic Development in Swaziland’, in W. Bass et al (eds) Good Governance and Economic Development (African Development Perspective: Year Book) Munster: LIT.

[[46]] http://www.misanet.org

[[47]] http://www.waccglobal.org/en/20012-media-scenarios-in-southern-africa/741-The-politics-of-press-freedom-and-the-national-economy-in-Swaziland.html

[[48]] http://www.ifex.org/

 

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