Constitutional Development in Swaziland

Constitutional Development Constitutional Development in Swazilandin Swaziland

A Civil Society Perspective on A Civil Society Perspective on the Proposed “New” the Proposed “New”

DispensationDispensation

The Swaziland Coalition of The Swaziland Coalition of Concerned Civic Organisations Concerned Civic Organisations

Formation of SCCCO in January 2003 pursuant the Formation of SCCCO in January 2003 pursuant the following problems. following problems.

Constitutional process Constitutional process Rule of law crisisRule of law crisis Fiscal indiscipline as exemplified in government’s Fiscal indiscipline as exemplified in government’s

intentions to purchase of a E750 million worth jet intentions to purchase of a E750 million worth jet against a deteriorating socio-economic against a deteriorating socio-economic environmentenvironment

loss of investor confidenceloss of investor confidence growing budget deficitgrowing budget deficit incidence and prevalence of HIV/ AIDSincidence and prevalence of HIV/ AIDS an estimated 300 000 people under food aidan estimated 300 000 people under food aid

The Coalition: Who we are The Coalition: Who we are SCCCO’s membership includes a wide spectrum of civil SCCCO’s membership includes a wide spectrum of civil

society society groups, representing a diversity of views and interests:groups, representing a diversity of views and interests: Federation of Swaziland Employers & Chamber of Commerce Federation of Swaziland Employers & Chamber of Commerce

( FSE & CC)( FSE & CC) Association of Swaziland Business Community (ASBC)Association of Swaziland Business Community (ASBC) Swaziland Federation of Trade Unions (SFTU)Swaziland Federation of Trade Unions (SFTU) Swaziland Federation of Labour (SFL)Swaziland Federation of Labour (SFL) The Church The Church Law Society of SwazilandLaw Society of Swaziland Coordinating Assembly of Non-Governmental Organisations Coordinating Assembly of Non-Governmental Organisations

(CANGO)(CANGO) Swaziland National Association of Teachers (SNAT)Swaziland National Association of Teachers (SNAT) Lawyers for Human Rights LHR(S)Lawyers for Human Rights LHR(S) Women and Law of Southern Africa Research and Educational Women and Law of Southern Africa Research and Educational

Trust (WLSA) - Swaziland ChapterTrust (WLSA) - Swaziland Chapter Media Institute of Southern Africa (MISA) – Swaziland ChapterMedia Institute of Southern Africa (MISA) – Swaziland Chapter

The Coalition: ActivitiesThe Coalition: ActivitiesTo date SCCCO members, individually and collectively, have To date SCCCO members, individually and collectively, have

engaged engaged Government on issues of governance and the need to dialogue.Government on issues of governance and the need to dialogue.Specific activities include:Specific activities include:

Analysis of the Constitution and its implications for Analysis of the Constitution and its implications for democratisation, and good governance in Swaziland;democratisation, and good governance in Swaziland;

Conducting civic education for communities;Conducting civic education for communities; Arrangement of debate/ seminars on the constitutional process Arrangement of debate/ seminars on the constitutional process

and content of the Draft Constitution;and content of the Draft Constitution; Lobbying of Parliamentarians during the debate on the Lobbying of Parliamentarians during the debate on the

constitution;constitution; Training of members in leadership and conflict resolution skillsTraining of members in leadership and conflict resolution skills use of international fora to inform the world about the situation use of international fora to inform the world about the situation

in Swaziland and to seek support.in Swaziland and to seek support.

The Coalition: Issues for The Coalition: Issues for Discussion Discussion

The presentation comprises the following The presentation comprises the following thematic areas:thematic areas:

A Historical Background to Constitutional A Historical Background to Constitutional Development in SwazilandDevelopment in Swaziland

Constitution-making: Process and Constitution-making: Process and EnvironmentEnvironment

The Content: Constitution Provisions and their The Content: Constitution Provisions and their ImplicationsImplications

Socio-Economic Issues Socio-Economic Issues The Constitution and International StandardsThe Constitution and International Standards Proposals on the Way ForwardProposals on the Way Forward

A Historical Background A Historical Background 2626thth July, 2005: King Mswati III assents July, 2005: King Mswati III assents

Swaziland’s new Constitution after 32 years with Swaziland’s new Constitution after 32 years with a nebulous constitutional framework.a nebulous constitutional framework.

Constitution-making process began in earnest in Constitution-making process began in earnest in 1996 and has taken almost ten years and millions 1996 and has taken almost ten years and millions of Emalangeni: has it been worth it?of Emalangeni: has it been worth it?

The appreciation of some of the present issues The appreciation of some of the present issues and challenges facing Swaziland necessitates an and challenges facing Swaziland necessitates an examination of some historical milestones that examination of some historical milestones that plot the trajectory of the country’s constitutional plot the trajectory of the country’s constitutional development. development.

A HISTORICAL BACKGROUND: A HISTORICAL BACKGROUND: Tracing Back Steps to the PresentTracing Back Steps to the Present

Constitution-making process prior toConstitution-making process prior toindependence sought self-governance whilst theindependence sought self-governance whilst therecent process sought to bring meaning to this self recent process sought to bring meaning to this self governance through the establishing a governance through the establishing a system of system of governance that would provide for:governance that would provide for:

the manner of political participation and the manner of political participation and representation by Swazi people;representation by Swazi people;

relevant institutions;relevant institutions; the distribution and exercise of the power to the distribution and exercise of the power to

govern amongst the various organs of state.govern amongst the various organs of state.

A HISTORICAL BACKGROUND: A HISTORICAL BACKGROUND: Tracing Back Steps to the PresentTracing Back Steps to the Present

The complexity of the exercise has been The complexity of the exercise has been

exacerbated by the challenge of duality: the exacerbated by the challenge of duality: the

desire, on one hand to desire, on one hand to accommodate and accommodate and

protect the cultural and traditional identity protect the cultural and traditional identity

of the Swazi people, traditional systems and of the Swazi people, traditional systems and

institutions as well as to sufficiently institutions as well as to sufficiently

empower the country with the institutions of the empower the country with the institutions of the “modern” “modern”

tate, on the other. tate, on the other.

A HISTORICAL BACKGROUND: A HISTORICAL BACKGROUND: Phases of Constitutional DevelopmentPhases of Constitutional Development

Six Phases can be identified:Six Phases can be identified:

1960 - 1964: 1960 - 1964: Pre self-governing Pre self-governing negotiationsnegotiations

- Swazi National Council and European Advisory Swazi National Council and European Advisory Council joint advisory councilCouncil joint advisory council

- Position of political parties (Swaziland Progressive Position of political parties (Swaziland Progressive Party)Party)

- Formation of a Constitutional Committee (continued Formation of a Constitutional Committee (continued resistance to involvement of political parties, resistance to involvement of political parties, recommendations of 50/50 power-sharing) recommendations of 50/50 power-sharing)

- The Sandy’s Constitutional frameworkThe Sandy’s Constitutional framework


- Sandy’s Framework:Sandy’s Framework:

Legislative Council (Legco)Legislative Council (Legco)

Executive CouncilExecutive Council

Office of the NgwenyamaOffice of the Ngwenyama

Office of Her Majesty’s CommissionerOffice of Her Majesty’s Commissioner

Legco supervised drafting of Independence Legco supervised drafting of Independence ConstitutionConstitution


1964 – 1968:1964 – 1968: pre-independence pre-independence developments developments

Independence constitution espousing democratic Independence constitution espousing democratic principles: separation of powers and attendant principles: separation of powers and attendant institutions; protection of fundamental human institutions; protection of fundamental human rights; recognition and protection of Swazi rights; recognition and protection of Swazi traditional institutions. traditional institutions.

1967: pre-independence elections contested 1967: pre-independence elections contested along party lines (formation of Imbokodvo along party lines (formation of Imbokodvo National Movement – INM)National Movement – INM)


1968 – 1973:1968 – 1973: 1st five years of 1st five years of independenceindependence

11stst post-independence elections post-independence elections NNLC won 3 Parliamentary seats (first presence NNLC won 3 Parliamentary seats (first presence

of opposition)of opposition) Attempt to deport NNLC MP on basis of citizenship Attempt to deport NNLC MP on basis of citizenship

(court declared attempts unconstitutional)(court declared attempts unconstitutional)


1973 – 1978:1973 – 1978: King’s Proclamation to the NationKing’s Proclamation to the Nation

1212thth April 1973: Repeal of the 1968 Independence April 1973: Repeal of the 1968 Independence ConstitutionConstitution

(a)(a) failure “to provide the machinery for good government and failure “to provide the machinery for good government and for the maintenance of for the maintenance of peace and order;”peace and order;”

(b)(b) causing “growing unrest, insecurity, dissatisfaction with the causing “growing unrest, insecurity, dissatisfaction with the state of affairs in our country and is an impediment to free state of affairs in our country and is an impediment to free and progressive development in all spheres of life;”and progressive development in all spheres of life;”

(c)(c) permitting the “importation into our country of highly permitting the “importation into our country of highly undesirable political practices alien to, and incompatible with undesirable political practices alien to, and incompatible with the way of life in our society and designed to disrupt and the way of life in our society and designed to disrupt and destroy our own peaceful and constructive and essentially destroy our own peaceful and constructive and essentially democratic methods of political activity; increasingly this democratic methods of political activity; increasingly this element engenders hostility bitterness, and unrest in our element engenders hostility bitterness, and unrest in our peaceful society;”peaceful society;”


““there is no constitutional way of effecting there is no constitutional way of effecting

he necessary amendments to the he necessary amendments to the

Constitution; the method prescribed by the Constitution; the method prescribed by the

Constitution itself is wholly impracticable Constitution itself is wholly impracticable

and will bring about the disorder, which any and will bring about the disorder, which any

constitution is meantconstitution is meant to inhibit.”to inhibit.”


Consequences of the repeal:Consequences of the repeal:

(i)(i) Powers of governance vested in King and Powers of governance vested in King and dissolution of Parliament:dissolution of Parliament:

““I have assumed supreme power in the Kingdom I have assumed supreme power in the Kingdom of Swaziland and that all Legislative, Executive,of Swaziland and that all Legislative, Executive,and Judicial power is vested in myself and shall, and Judicial power is vested in myself and shall, for the meantime, be exercised in collaboration for the meantime, be exercised in collaboration with a Council constituted by my Cabinet.”with a Council constituted by my Cabinet.”


Removal of Chapter II (Fundamental Human Removal of Chapter II (Fundamental Human Rights and Freedoms)Rights and Freedoms)

Banning of political parties and similar Banning of political parties and similar organisationsorganisations

Prohibition of meetings of a political nature and Prohibition of meetings of a political nature and demonstrations without special permission from demonstrations without special permission from Commissioner of PoliceCommissioner of Police

Introduction of 60 day detention order renewable Introduction of 60 day detention order renewable indefinitely and beyond the purview of court indefinitely and beyond the purview of court enquiryenquiry

Introduction of army and increased police force Introduction of army and increased police force visibility in “strategic places to ensure “peace, visibility in “strategic places to ensure “peace, order and good government”order and good government”


1978 – 1992:1978 – 1992: Establishment of Parliament Establishment of Parliament Order, 1978Order, 1978Introduction of Tinkhundla Introduction of Tinkhundla system: 40 representatives to form an system: 40 representatives to form an

Electoral College to elect MPs Electoral College to elect MPs 1982: 1982: death of King Sobhuza IIdeath of King Sobhuza II1982-1985:1982-1985: Liqoqo era – Queen Regent Liqoqo era – Queen Regent

oustedoustedpower struggle and infighting power struggle and infighting

within the royaltywithin the royalty1986:1986: King Mswati III ascends to King Mswati III ascends to

the Thronethe Thronenew forms of legislationnew forms of legislation

1986 – 1992:1986 – 1992: various consultative Commissionsvarious consultative Commissions


1992 – to date1992 – to date

1992:1992: Establishment of Parliament Order, altering Establishment of Parliament Order, altering election election system, dissolving the Electoral College, system, dissolving the Electoral College,

establishing establishing 55 constituencies, and 55 constituencies, and introduction of secret ballotintroduction of secret ballot

1996:1996: Establishment of Constitutional Establishment of Constitutional Review Commission (CRC)Review Commission (CRC)

2002: 2002: Establishment of Constitution Drafting Establishment of Constitution Drafting CommitteeCommittee

(CDC)(CDC)2003:2003: Submission of Draft Constitution to KingSubmission of Draft Constitution to King2004: 2004: Parliamentary debate: on Certificate of UrgencyParliamentary debate: on Certificate of Urgency2005:2005: Joint sitting of ParliamentJoint sitting of Parliament2005:2005: King’s message from the Throne for King’s message from the Throne for

reconsideration reconsideration and addition of some clausesand addition of some clauses2626thth July: July: Assent by the King Assent by the King

A HISTORICAL BACKGROUND:A HISTORICAL BACKGROUND:The Role of Civil SocietyThe Role of Civil Society

Ongoing activism for opening up of political Ongoing activism for opening up of political space and inclusion since pre-independence space and inclusion since pre-independence period to date:period to date: Quest for alternatives to SNC for political Quest for alternatives to SNC for political

representation resulted in the formation of political representation resulted in the formation of political parties;parties;

Student and worker organisation activism provided Student and worker organisation activism provided pressure for commencement of the processes pressure for commencement of the processes leading to the writing of a constitution;leading to the writing of a constitution;

Church activism in involvement in social justice Church activism in involvement in social justice issues;issues;

Non-governmental organisations dealing with issues Non-governmental organisations dealing with issues of development, human rights and good governanceof development, human rights and good governance

CONSTITUTION-MAKING: CONSTITUTION-MAKING: The ProcessThe Process

Exclusionary nature of process: unilaterally dictated from Exclusionary nature of process: unilaterally dictated from the Throne:the Throne:

No effort to build consensus on “road-map” of process despite No effort to build consensus on “road-map” of process despite acknowledged diversity of views.acknowledged diversity of views.

Appointment of Constitutional Review Commission (CRC) and Appointment of Constitutional Review Commission (CRC) and Constitution Drafting Committee (CDC) by King (“progressive” Constitution Drafting Committee (CDC) by King (“progressive” appointees resignations due to “unworkable” conditions”).appointees resignations due to “unworkable” conditions”).

Absence of civic education (demonstrated by irrelevant Absence of civic education (demonstrated by irrelevant submissions at Tinkhundla and Sibaya).submissions at Tinkhundla and Sibaya).

Denial of group representation and submissions (impracticality Denial of group representation and submissions (impracticality of individual submissions).of individual submissions).

Ad hoc changes in manner of submission collection, time Ad hoc changes in manner of submission collection, time frames for process, and adoption processes.frames for process, and adoption processes.

Insufficient data to categorise process as truly national: CRC Insufficient data to categorise process as truly national: CRC had no empirical data; CDC reported receiving 1 501 had no empirical data; CDC reported receiving 1 501 submissions.submissions.

CONSTITUTION-MAKING: CONSTITUTION-MAKING: The EnvironmentThe Environment

Existence of 1973 Decree curtailing freedom of Existence of 1973 Decree curtailing freedom of expression, association and assemblyexpression, association and assembly

Threat of re-introduction 60 day detentionThreat of re-introduction 60 day detention Evictions of Macetjeni and kaMkhweli community Evictions of Macetjeni and kaMkhweli community

members members Police brutalityPolice brutality Rule of Law CrisisRule of Law Crisis Security force presence at civic education Security force presence at civic education

meetingsmeetings Impact of the land tenure systemImpact of the land tenure system

THE CONSTITUTION OF THE KINGDOM THE CONSTITUTION OF THE KINGDOM OF SWAZILAND:OF SWAZILAND: Critical ProvisionsCritical Provisions

SEPARATION OF POWERSSEPARATION OF POWERS

The pervasive influence of the Kings powers in The pervasive influence of the Kings powers in the three arms of government severely the three arms of government severely

compromises the notion of separation of powers compromises the notion of separation of powers which is a cardinal tenet of democracy:which is a cardinal tenet of democracy:

A. THE JUDICIARYA. THE JUDICIARY

- Chapter 2 of the Constitution avails immunities to - Chapter 2 of the Constitution avails immunities to the King and Ngwenyama, Indlovukazi and the King and Ngwenyama, Indlovukazi and Authorised person from both civil and criminal Authorised person from both civil and criminal proceedings.proceedings.


The implication of this is that when the King’s The implication of this is that when the King’s name is cited in any legal proceedings, whoever name is cited in any legal proceedings, whoever is seeking redress cannot be able to obtain that is seeking redress cannot be able to obtain that redress.redress.

In terms of section 151 (8), the High Court has In terms of section 151 (8), the High Court has been stripped of its original and appellate been stripped of its original and appellate jurisdiction over certain listed matters which are jurisdiction over certain listed matters which are purported to be governed by Swazi law and purported to be governed by Swazi law and Custom. It should be noted that the Ingwenyma is Custom. It should be noted that the Ingwenyma is the ultimate custodian of Swazi Law and Cutsom.the ultimate custodian of Swazi Law and Cutsom.


The Judicial Service Commission advises the King The Judicial Service Commission advises the King on the appointment of Judges and other members on the appointment of Judges and other members of the Judicature. The King according to section of the Judicature. The King according to section 65 (4) may or may not act in conformity with that 65 (4) may or may not act in conformity with that advice. Which literally mean the King may act advice. Which literally mean the King may act alone in the appointment of any office.alone in the appointment of any office.

Section 78 provides for the setting up of a Section 78 provides for the setting up of a prerogative of mercy committee which is a prerogative of mercy committee which is a structure not seriously intended if one looks at structure not seriously intended if one looks at the provision that the committee could be the provision that the committee could be influenced by a non member and that will not influenced by a non member and that will not nullify proceedings. This could ultimately serve to nullify proceedings. This could ultimately serve to undermine the work of the judiciaryundermine the work of the judiciary


B. THE EXECUTIVEB. THE EXECUTIVE

Section 64 (3) anticipates that the King may Section 64 (3) anticipates that the King may exercise the Executive Authority directly. This could exercise the Executive Authority directly. This could undermine the ability of the Executive to deliver on undermine the ability of the Executive to deliver on its mandate.its mandate.

The entrenched duality of structures who advises The entrenched duality of structures who advises the King and Ingwenyama yet are known to be in the King and Ingwenyama yet are known to be in competition, would serve to compromise the ability competition, would serve to compromise the ability of the executive to take decisions to further their of the executive to take decisions to further their objectives.objectives.

Moreover there is a plethora of positions which are Moreover there is a plethora of positions which are supposed to be filled by the King ostensibly on the supposed to be filled by the King ostensibly on the basis of advice by one structure or another which basis of advice by one structure or another which we have observed in terms of section 65, can be we have observed in terms of section 65, can be ignored by the King.ignored by the King.


C.C. THE LEGISLATURETHE LEGISLATURE

According to the Constitution the King legislates According to the Constitution the King legislates through Parliament, hence he cannot legislate in through Parliament, hence he cannot legislate in any other form. any other form.

However, in terms of section 108 the King is However, in terms of section 108 the King is empowered to withhold his assent to Bills, empowered to withhold his assent to Bills, thereby giving him veto powers. thereby giving him veto powers.

The King has power to disband ParliamentThe King has power to disband Parliament Matters impinging on Swazi Law and Custom Matters impinging on Swazi Law and Custom

have been removed from the competence of the have been removed from the competence of the popularly elected House. popularly elected House.

THE CONSTITUTION OF THE KINGDOM THE CONSTITUTION OF THE KINGDOM OF SWAZILAND: OF SWAZILAND: Amending the Amending the

ConstitutionConstitution In accordance with this constitution, amendments In accordance with this constitution, amendments

is almost impossible if that matter is listed as is almost impossible if that matter is listed as being specially entrenched.being specially entrenched.

The King retains the quota of 30 appointees to The King retains the quota of 30 appointees to

bothboth Houses (20 Senate and 10 Assembly)Houses (20 Senate and 10 Assembly)

THE CONSTITUTION OF THE KINGDOM THE CONSTITUTION OF THE KINGDOM OF SWAZILAND: The Bill of RightsOF SWAZILAND: The Bill of Rights

There is an attempt to re-introduce the Bill of There is an attempt to re-introduce the Bill of Rights in the Constitution.Rights in the Constitution.

However, the Bill of Rights is severely derogated However, the Bill of Rights is severely derogated upon, making it almost useless.upon, making it almost useless.

There are some major contradiction which also There are some major contradiction which also obtain. For example, whilst the right to life is obtain. For example, whilst the right to life is given and subsequently derogated upon in section given and subsequently derogated upon in section 15, section 38 on the other hand singles out the 15, section 38 on the other hand singles out the right to life as non derogable.right to life as non derogable.

Political, social and economic rights have been Political, social and economic rights have been removed from the Bill of Rights and have been removed from the Bill of Rights and have been shuffled away under the directive principles of shuffled away under the directive principles of state policy and have been made non enforceablestate policy and have been made non enforceable..

THE CONSTITUTION OF THE KINGDOM THE CONSTITUTION OF THE KINGDOM OF SWAZILAND: The Bill of RightsOF SWAZILAND: The Bill of Rights

The Constitution sets up a Human Rights The Constitution sets up a Human Rights Commission, section 165 (3)(c), states that Commission, section 165 (3)(c), states that the Commission shall not investigate a matter the Commission shall not investigate a matter related to the exercise of any Royal related to the exercise of any Royal prerogative by the crownprerogative by the crown

Section 169 of the constitution bars the Section 169 of the constitution bars the commission from investigating transgressions commission from investigating transgressions authored by a Minister or question the policy authored by a Minister or question the policy of government.of government.

The absence of the right to information is The absence of the right to information is quite glaring for a country like Swaziland quite glaring for a country like Swaziland where certain national budget lines such as where certain national budget lines such as the army and the Swaziland National Treasury the army and the Swaziland National Treasury do not fall for debate. do not fall for debate.

THE CONSTITUTION OF THE KINGDOM THE CONSTITUTION OF THE KINGDOM OF SWAZILAND: Women’s RightsOF SWAZILAND: Women’s Rights

Whilst there have been attempts at addressing this Whilst there have been attempts at addressing this particular area, these have not been convincing enough particular area, these have not been convincing enough to warrant excitement. to warrant excitement.

Section 28 of the Bill contains the right to equality with Section 28 of the Bill contains the right to equality with subsection 3 stating that a woman shall not be subsection 3 stating that a woman shall not be compelled to undergo or uphold a practice to which she compelled to undergo or uphold a practice to which she is in conscience opposed. The major limitation to this is is in conscience opposed. The major limitation to this is that the onus is being placed on the woman to identify that the onus is being placed on the woman to identify the practice that she does not want to undergo instead the practice that she does not want to undergo instead of the constitution simply making unlawful or of the constitution simply making unlawful or unconstitutional any custom that offence women.unconstitutional any custom that offence women.

Whereas section 211 purports to give land to all citizens Whereas section 211 purports to give land to all citizens notwithstanding gender, the limitations come in when notwithstanding gender, the limitations come in when they say that it is only for domestic purposes and they say that it is only for domestic purposes and exigencies are anticipated.exigencies are anticipated.

Citizenship can still not be passed on by women to their Citizenship can still not be passed on by women to their children. children.

CONSTITUTION OF THE KINGDOM OF CONSTITUTION OF THE KINGDOM OF

SWAZILAND:SWAZILAND: Citizens’ participation Citizens’ participation Entrenchment of the Tinkhundla system of Entrenchment of the Tinkhundla system of

governance.governance. Perpetuation of “individual merit” as the Perpetuation of “individual merit” as the

qualification for political office thus undermining qualification for political office thus undermining effect of political parties contesting along party effect of political parties contesting along party lines.lines.

Oaths of office require “allegiance to the King, his Oaths of office require “allegiance to the King, his heirs and successors, not the Constitution or the heirs and successors, not the Constitution or the nation.nation.

SWAZILAND’S SOCIO-ECONOMIC SWAZILAND’S SOCIO-ECONOMIC CHALLENGESCHALLENGES

Background: Background:

-High Poverty levels-High Poverty levels

-High HIV/AIDS Prevalence-High HIV/AIDS Prevalence

-Sluggish Economic Growth-Sluggish Economic Growth

-High Rates of Unemployment-High Rates of Unemployment

Lack of Fiscal DisciplineLack of Fiscal Discipline

SOCIO-ECONOMIC SOCIO-ECONOMIC CHALLENGES: PovertyCHALLENGES: Poverty

69% of the country’s population lives below a $ a 69% of the country’s population lives below a $ a dayday

Skewed income distributionSkewed income distribution Health and education systems falling apartHealth and education systems falling apart

-health facilities run out of supplies-health facilities run out of supplies

-Government can’t meet scholarship obligations -Government can’t meet scholarship obligations on tertiary educationon tertiary education

-Social welfare is not working-Social welfare is not working

SOCIO-ECONOMIC SOCIO-ECONOMIC CHALLENGES: PovertyCHALLENGES: Poverty

Poverty and crime-people are pushed to Poverty and crime-people are pushed to committing crime because of socio-economic committing crime because of socio-economic reasonsreasons

High crime rate deterrent to investmentHigh crime rate deterrent to investment Lack of disposable incomeLack of disposable income A crime free environment is desirableA crime free environment is desirable

SOCIO-ECONOMIC SOCIO-ECONOMIC CHALLENGES: HIV/ AIDSCHALLENGES: HIV/ AIDS

Infection rates are on the increaseInfection rates are on the increase 42.6% prevalence rate42.6% prevalence rate Failure to meet social needs related to HIV/AIDSFailure to meet social needs related to HIV/AIDS Orphaned and VulnerableOrphaned and Vulnerable childrenchildren Child headed householdsChild headed households

SOCIO-ECONOMIC SOCIO-ECONOMIC CHALLENGES: Economic GrowthCHALLENGES: Economic Growth

Growth has weakened since the early 1990sGrowth has weakened since the early 1990s Closure of big corporations in the late 1990s and Closure of big corporations in the late 1990s and

early 2000early 2000 Frequent droughts and bad weather conditions Frequent droughts and bad weather conditions

continue to compromise growth of the Agric. continue to compromise growth of the Agric. SectorSector

Developments on the sugar and textile and Developments on the sugar and textile and apparel sectorsapparel sectors

SOCIO-ECONOMIC SOCIO-ECONOMIC CHALLENGES: UnemploymentCHALLENGES: Unemployment

Rate of unemployment is estimated at 50%Rate of unemployment is estimated at 50% Retrenchments began in 1997 and still continuingRetrenchments began in 1997 and still continuing Sugar sector, which is a major employer has Sugar sector, which is a major employer has

imminent retrenchmentsimminent retrenchments Textile and Apparel sector to shed close to 25,000 Textile and Apparel sector to shed close to 25,000

jobs as a result of phasing out of Multifibre jobs as a result of phasing out of Multifibre

agreement and expiration of third countryagreement and expiration of third country fabric fabric provision in 2007provision in 2007

Lack of Fiscal DisciplineLack of Fiscal Discipline

A growing fiscal deficitA growing fiscal deficit Depletion of National ReservesDepletion of National Reserves Corruption-laxity in dealing with culpritsCorruption-laxity in dealing with culprits Use of Public Funds without sanction by Use of Public Funds without sanction by

ParliamentParliament Loopholes within the systemLoopholes within the system

Provisions of the ConstitutionProvisions of the Constitution

Constitution entrenches the status quoConstitution entrenches the status quo

-Land rights: All land on SNL including -Land rights: All land on SNL including concessions vest with the king-rendering Swazis a concessions vest with the king-rendering Swazis a land-less nationland-less nation

- The issue of usage of SNL for business purposes is - The issue of usage of SNL for business purposes is not resolved-99 year lease bill still outstandingnot resolved-99 year lease bill still outstanding

- Essentially Swazis are economically - Essentially Swazis are economically disenfranchiseddisenfranchised

Socio-economic RightsSocio-economic Rights

Non-justiciability of clauses 58-64-social, Non-justiciability of clauses 58-64-social, economic and political rightseconomic and political rights

Downplaying the issue of land in SwazilandDownplaying the issue of land in Swaziland

HMK’s Tax ImmunitiesHMK’s Tax Immunities

Section 10 exempts the King and His Civil List Section 10 exempts the King and His Civil List from Paying taxes even on private activities and from Paying taxes even on private activities and properties they personally own properties they personally own

Not clear how civil list is determined-subject to Not clear how civil list is determined-subject to abuseabuse

A well known fact the king is a business person A well known fact the king is a business person

and thisand this will compromise Govt Revenuewill compromise Govt Revenue

Fiscal DisciplineFiscal Discipline

Lack of transparency and accountability on the Lack of transparency and accountability on the use of public funds use of public funds

IMF has sent warnings since late 1990sIMF has sent warnings since late 1990s Issue of Governance a major factorIssue of Governance a major factor Use of external reserves-currently our reserves Use of external reserves-currently our reserves

can barely cover 2 months imports-a situation can barely cover 2 months imports-a situation

that weakens the country’s external viabilitythat weakens the country’s external viability

Budgetary ProcessBudgetary Process

The process is not all inclusive-major The process is not all inclusive-major stakeholders are not involvedstakeholders are not involved

Expenditure not targeted to priority areasExpenditure not targeted to priority areas Social sectors have been compromised, ie Social sectors have been compromised, ie

Education, Health and Social WelfareEducation, Health and Social Welfare Right pronouncements on priority areas that are Right pronouncements on priority areas that are

not matched by the actual expenditure.not matched by the actual expenditure.

The Constitution and International The Constitution and International StandardsStandards

Swaziland is a member of the international community and also Swaziland is a member of the international community and also of of

various organisations of states, e.g. United Nations; various organisations of states, e.g. United Nations; Commonwealth, Commonwealth,

African Union; Southern African Development CommunityAfrican Union; Southern African Development Community

Swaziland has signed and ratified various international Swaziland has signed and ratified various international Instruments pertaining to standards of governance and human Instruments pertaining to standards of governance and human

rights, rights, e.g. recent ratification of:e.g. recent ratification of:

Convention on the Elimination of All Forms of Discrimination Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Against Women (CEDAW)

International Covenant on Civil and Political Rights (ICCPR)International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights

(ICESCR)(ICESCR) Convention Against Torture (CAT)Convention Against Torture (CAT)


However, the question remains whether there exists the political However, the question remains whether there exists the political will will

to act in accordance with the various commitments made to act in accordance with the various commitments made internationally through domestication or at a minimum internationally through domestication or at a minimum

recognition in recognition in the new constitution.the new constitution.

Political RightsPolitical Rights

Recognised by: ICCPR, Commonwealth Harare Declaration, SADC Recognised by: ICCPR, Commonwealth Harare Declaration, SADC Treaty, SADC Guidelines and Principles on Democratic Treaty, SADC Guidelines and Principles on Democratic Elections which all anticipate free political activity and contest as Elections which all anticipate free political activity and contest as

well well as the existence of political parties. However, in the Swaziland as the existence of political parties. However, in the Swaziland constitution these rights are hardly recognised and the effect of constitution these rights are hardly recognised and the effect of

the the existence of political parties is severelyexistence of political parties is severely curtailed. curtailed.


Women’s rightsWomen’s rights

CEDAW’s seeks the elimination of all forms of CEDAW’s seeks the elimination of all forms of discrimination against women. Swaziland’s discrimination against women. Swaziland’s ratification means that at the very least, the State ratification means that at the very least, the State must not act contrary to the spirit of the must not act contrary to the spirit of the Convention. However, in the Constitution which Convention. However, in the Constitution which has been passed after this ratification, has been passed after this ratification, discrimination exists, e.g. with respect to the discrimination exists, e.g. with respect to the passing of citizenship by a Swazi woman to her passing of citizenship by a Swazi woman to her children if their father is not a Swazi.children if their father is not a Swazi.


Civil society concern regarding international Civil society concern regarding international community’s response to the adoption of the community’s response to the adoption of the constitution is that while the document is constitution is that while the document is severely flawed and falls below the minimum severely flawed and falls below the minimum standards expected of a democratic state that standards expected of a democratic state that respects fundamental human rights and respects fundamental human rights and freedoms, in some cases expressly violating freedoms, in some cases expressly violating these standards, it is being praised as an these standards, it is being praised as an achievement. achievement.


AFRICAN COMMISSION ON HUMAN AND PEOPLE’S AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS RIGHTS REPORT ON HUMAN RIGHTS IN SWAZILAND REPORT ON HUMAN RIGHTS IN SWAZILAND

Lawyers for Human Rights case challenging the 1973 Lawyers for Human Rights case challenging the 1973 Proclamation to the Nation Proclamation to the Nation

The Commission’s findings were that Articles 1,7,10,11,13 and The Commission’s findings were that Articles 1,7,10,11,13 and 26 of the African Charter were violated by the Proclamation.26 of the African Charter were violated by the Proclamation.

The new Constitution has not cured the deficiencies as regards The new Constitution has not cured the deficiencies as regards the country’s adherence to its obligations under the Charter.the country’s adherence to its obligations under the Charter.

The recommendations of the African Commission were ignored. The recommendations of the African Commission were ignored.

Where to From Here? The Way Where to From Here? The Way ForwardForward

actively engage government and include civil actively engage government and include civil society (using the existent Bilateral agreement society (using the existent Bilateral agreement between South Africa and Swaziland);between South Africa and Swaziland);

promote dialogue (creating a forum for discussions promote dialogue (creating a forum for discussions between the diverse parties in the country);between the diverse parties in the country);

discourage the endorsement of the Constitution by discourage the endorsement of the Constitution by members of prominent institutions;members of prominent institutions;

Assist in the diffusion of the threat of violence: Assist in the diffusion of the threat of violence: disgruntled groupings and continuation of disgruntled groupings and continuation of militarization of the state;militarization of the state;

take a preventative approach to avoid implications take a preventative approach to avoid implications of Article 23 AU Constitutive Act regarding sanctions.of Article 23 AU Constitutive Act regarding sanctions.

Date post:	14-Jan-2016
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Constitutional Development in Swaziland

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