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