CRITICALLY ENGAGING THE CONTENT OF THE NEW SWAZI CONSTITUTION

CRITICALLY ENGAGING THE CONTENT OF THE NEW SWAZI CONSTITUTION
Prepared by :
Muzi Masuku
Swaziland Programme Manager OSISA

The fact that Swaziland has already reached her milestone in terms formulating a constitution that will meet the demands of a democratic order is a highly contested issue. However, merely having a constitution does not mean that a country is automatically committed to constitutionalism. If the touchstone of constitutionalism is the limitation of unfettered government power and respect for the rule of law not every country that has a constitution meets the standards of constitutionalism. It is in this respect that a distinction is made between a normative and nominal constitution. In a recently held Open Society Initiative for Southern Africa (OSISA) funded regional conference on constitutionalism, held in Swaziland participants agreed that the appropriate normative standards for any content of a constitution worth its salt would be the following: a multi-party system of governance, separation of powers, systems of government, independent judiciary, a Bill of Rights, accountability and transparency, regular free and fair elections, institutions protecting constitutional democracy and procedure for amendment. The following discussion however attempts to look at the specific position of the Swaziland Constitution Act of 2005 in so far as it purports to set up a democratic order in Swaziland thereby replacing the hugely unpopular Kings Proclamation of 1973 anchored constitutional order.

Separation of Powers:

Being one of the cardinal tenets of a democracy, the area of separation of powers was going to be one of the areas likely to draw the most attention in so far as the new national constitution in Swaziland is concerned. A distinct and widely held understanding has been created that the notion of separation of powers is closely linked to checks and balances. It is a given that there should be three arms of government which are vested with co-equal powers, which enjoy relative autonomy with one arm complementing the other while concurrently holding each other in check. The ultimate test for our current constitution was always going to be how much of a departure does it make with the past position which has been authored by the King’s Proclamation to the Nation of 1973 in terms of which all the original powers of the three arms had been concentrated in the office of the King who then delegated some of his powers to what passed for an executive, judiciary and a legislature. It would therefore be critically important to closely follow the pervasive influence of the King’s powers as they are set out in the Constitution Act to help us discern whether indeed there is any semblance of separation that has been achieved or not and how much of the notion of separation would be compromised by the powers that are enjoyed by the King. My contention though is that our Swazi constitution places the King above the constitution and protects his powers over that of the legislature, executive and judiciary. There is no check in the authority of the monarchy. Such a position is therefore likely to result in a situation where the current system of patronage and lack of accountability is perpetuated. It would have been very important for the drafters to ensure that separation of powers provides for a system of checks and balances that ensures and protects good governance and democratic processes. I find Tawanda Mutasah‘s article on Volume 1, issue 2 of OSISA’s Open Space instructive on the concept of good governance where he lists the following:
· The rule of law, by which is meant not only a general atmosphere of legality, but also the existence of good laws that are generally respected by the executive organs of government;
· Accountability of government for its decisions, traditionally relating to the executive but increasingly also to the judiciary and parliament, as well as para-government bodies such as parastatals, government appointed commissions, etc;
· Predictability of government decisions, essentially meaning government is better if it governs rationally, in a way that enables citizens to anticipate public processes and their impact on private citizens lives;
· Checks and balances in the traditional Montesquean sense of separation of powers and functions and the development of appropriate accountabilities between the three branches of government, the Executive, the Legislature and the Judiciary;
· Transparency, including access to information held by government and /or government agencies which are in public interest;
· Anti corruption and a general commitment to ensure integrity in the management of public affairs;
· Auditing of governmental transactions by oversight bodies;
· Decentralisation whereby the state genuinely devolves authority for local level decision making to democratically elected local entities. This is to be distinguished from local client patron relationships and from decongestion of central functions to local authorities without resource and policy back up.

Judiciary:
Chapter 2 of the Constitution avails immunities to the dual office of the King and Ingwenyama, the Indlovukazi and the authorized person. This immunity is availed against legal suits and legal process in any cause in respect of things done or omitted to be done by these offices. The Immunity if also availed for these parties against being summonsed to appear as a witness in any civil or legal proceedings. This is a position that is not new in Swaziland’s political landscape as even the Independence Constitution of 1968 articulated the same position although in not so much detail as in the current constitution. The major implication of this is that when the King’s name or any of the other parties as enjoying those immunities, is cited in any legal proceedings, whoever is seeking legal redress, will not be able to obtain that redress since the citation of the King’s name will be seen as embarrassing His good office and a personal affront on his name and character. In explaining the rationale for this position, the former Attorney General Phesheya Dlamini indicated that it would be wrong to suggest that these immunities catapulted the King to be above the law noting that this was merely an affirmation and recognition that a person holding that esteemed position will not stoop so low so as to commit crime and therefore be a subject of court proceedings. Swaziland has in the recent past and even to date been seized with issues surrounding the rule of law or the lack of it. The matters that related to the transgressions on the rule of law have unfortunately impinged on the immunities availed to the King which then puts to test the position as stated by the former Attorney General. Moreover when availing these immunities, the constitution has failed to anticipate a situation wherein other people who perceive themselves as appendages to these offices might also seek to benefit from the immunities availed. The bottom line is that it has become difficult to tell who else can benefit from the immunities availed to the King. Surprisingly though even before the constitution is put to a rigorous test in this respect, the Attorney General, Mr Majahenkhaba Dlamini, instead of preparing to defend government as per his office’s mandate, is already throwing his hands in the air as a form of submission in terms of the interpretation of this clause in the case of the Inkhosikati who is suing the police for defamation. His contention is that defending the suit will be tantamount to fighting the King yet Emakhisikati are not availed immunities in terms of the constitution.

The most severe assault, in so far as I am concerned on the judiciary occurred when the King submitted his proposals to parliament through the special message which unfortunately found its way in its entirety to the text of the constitution. The King proposed the inclusion of subsection 8 of section 151 in terms of which the High Court was being stripped of its original and appellate jurisdiction over matters that relate to the office of Ingwenyama, Indlovukazi, the authorized person, the appointment, revocation and suspension of chiefs, the constitution of the regimental (libutfo) system, the constitution of the Swaziland National Council. The courts have since the founding of modern day Swaziland had unlimited original jurisdiction over any matter. This position was also captured in the Independence Constitution of 1968. However, the institution cited above were listed in Schedule 3 of the Independence Constitution as being outside the purview of parliament which meant that parliament could not legislate on these matters. To that end the listed matters were identified as the sole preserve of Swazi law and custom in so far as legislating on them was concerned. This position was not changed by the Proclamation to the Nation of 1973. However in his “wisdom”, the King found it proper to list these matters as being outside the competence of the courts and for them to be the sole preserve of Swazi law and custom. Ironically the ultimate authority of Swazi law and custom is the Ingwenyama which literally means that the King with the assistance of our parliament has found it prudent to appropriate these matters to his traditional office. It should be noted that Swazi law and custom is a very nebulous institution subject to manipulation and different interpretation depending on who you are talking to at a given time save for the fact that in terms of Swazi law and Custom what the Ingwenyama ultimately says, cannot be contested by any other office since it is taken to be the Nicodemus truth” the mouth that never lies” (umlomo longacali manga).

The Judicial Service Commission is in terms of this constitution slated as the structure that will advise the King in the appointment of judges and other members of the judicature. It is generally held that if a structure advises, there will be a recording of minutes capturing whatever advice that may be given. However the position that has been alluded to above has to be looked at in light of the rather disturbing position articulated in section 65(3) and (4) which indicates that when the King is called upon in terms of this constitution to exercise any function after consultation with any person or authority, he may or he may not act on the basis of that advise given. The literal interpretation of that position is that the King is not necessarily enjoined or compelled to act on the basis of any advice even by the Judicial Service Commission. This concern is raised in light of the many positions that are suggested to be filled by the King after he has sought advice from one structure or another.

Section 78 of the constitution provides for the setting up of a prerogative of mercy committee which is a structure that I perceive not to be seriously intended. The reason that this is seen as not being seriously intended is because this section suggests that the fact that a non member can sit with and influence proceedings of this committee will not serve to nullify proceedings. Similarly, the fact that the prerogative of mercy committee sat without forming a quorum will not serve to nullify proceedings. The effect of the position that is stated in section 78 is that court judgements could be undermined by a structure that is not seriously intended thereby militating against the rule of law.

Executive:

Section 64 (3) of the constitution states that the King can exercise executive authority directly or through cabinet or a Minister. While it is generally accepted that the repository of executive authority in any jurisdiction is the head of state, it becomes untenable in a Kingdom for the King to then exercise executive authority directly when there is a cabinet that is supposed to be doing the day to day business even going to the extent of advising that head of state on the government of the country. Maybe this situation mirrors the executive nature of our monarch and is suitable for political dispensations that do not have political parties. The question however is how tenable is this position in advancing the notion of the separation of powers? In other monarchs such as Lesotho for instance, while the King is the repository of executive authority, that executive authority is exercised by the Prime minister and his cabinet ministers.

In terms of the Constitution Act of Swaziland, the Ingwenyama shall appoint a King’s Advisory Council which is identified as a structure tasked with advising the King on matters of Swazi law and custom. Their mandate however is extended by the fact that it is said that they will also advise the King on any matter that the King may refer to them. This position has to be juxtaposed with the traditional role of cabinet which is that of advising the King on matters of governance. Ironically the Prime Minister is in terms of this constitution a product of advice by the King’s Advisory Council whereas Ministers are appointed by the King on the advice of the Prime Minister. Problems of superiority and or seniority of the structures which are all anticipated to advise the King are likely to arise as they have in the past. The problem with this duality of structures which are known to be in competition could serve to compromise the ability of the executive to take decisions that further their objectives and or policies.

There are a plethora of positions that are proposed by this constitution which it is stated will be appointed by the King on the basis of advice from one structure or another. However this position has to be looked at against the position that is stated in section 65(3) and (4) which does not compel the King to act in compliance with any advise literally giving the King latitude to totally ignore advice and act on his own.

Legislature:

Section 108 of this constitution empowers the King to withhold his assent to Bills thereby giving him veto power. This position comes about because of the silence of the constitution in stating what should happen if the number of days that is given to the King to indicate his displeasure about a Bill lapses. This position also affects Bills that seek to amend the constitution

Section 134 empowers the King to disband parliament before their tenure of office expires without giving any reasons for that. This is a dangerous position for a country like Swaziland where parliament remains our only bastion of hope in ensuring accountability and curbing excesses by the executive. The fear that abounds is that if parliament in exercising their oversight role takes decisions which may not find favour with the authorities they could be disbanded prematurely without any reasons being advanced for their premature disbanding.

Bills that impinge on Swazi law and custom have been removed from the competence of the popularly elected House of Assembly and they can only be tabled before Senate and the Council of Chiefs. It is a well know fact that Senate is not populated by people that are elected by the electorate. Twenty (20) of the senators are appointed by the King and the other ten (10) are elected by the House of Assembly once it is fully constituted. Further more the Council of Chiefs comprises of people that are wholly appointed by the King. It is worth recalling though that parliament has during the debate of the constitution tried to get a certain quota of the Council of Chiefs to be elected to serve in this structure. That position was however altered after the introduction of the special message from His Majesty which indicated that the King wished to appoint all the members of the Council of Chiefs. The fact of the matter is that the structures that will be determining the position of our law in so far as it relates to Swazi law and custom is not answerable to the general electorate no matter how unpopular and repressive the law they will enact will be. The introduction of the concept of Council of Chiefs puts to question the claims by our constitution of the bicameral nature of our parliament if another structure besides the House of Assembly and Senate can legitimately engage in the process of making law.


Amendments:
A lot of hullabaloo has been made about how the national constitution should be given a chance as it represents work in progress and can be amended as and when the need arises. This position has to be understood in light of the provisions articulated in section 108(3)(a) which only indicates the number of days within which the King should have indicated whether he assents or withholds assent to a Bill. It does not go on to state for instance what will happen when the stated number of days lapses without the King having assented to a Bill or what should happen if he indicates that he is withholding his assent to a particular Bill. It does not even enumerate or state instances when the King cold be enjoined not to withhold his assent anymore. Effectively this section makes us alive to the hardcore fact that any amendments can occur at the benevolence of the King or at worst the King can veto a Bill that seeks to amend the constitution. A reading of section 246 along with section 108 would indicate that the constitution leaves very little room if any for amendments of specially entrenched clauses if those amendments are not in the King’s interest. This argument is being advanced in light of the fact that this constitution demands a three quarters majority of a fully constituted bicameral sitting. The three quarters majority that the constitution requires of the full 104 members bicameral sitting would be 78. It should be recalled that the King has a quota of 30 appointees to parliament. This means that the King’s quota of appointees can frustrate the attainment of that three quarters majority. Even if by some stroke of luck the King’s appointees were to vote in favour of any proposed amendment, at no stage does the constitution indicate that the attainment of a majority vote will compel the King to subsequently assent. Even though this section alludes to the conduct of a referendum, nowhere in the constitution is it suggested that a majority vote by the electorate in favour of amendments can then compel the King to assent. Moreover, the list of matters listed as being specially entrenched in section 246 is unnecessarily long. This will mean that proposed amendments will now be expensive given the number of times that a referendum will need to be sought to effectively comply with the legal requirements for effecting amendments.


Bill of Rights:
The Bill of Rights has severe derogations and claw-backs which at the end of the day render the Bill of Rights to be useless. Some of the derogations are couched in generalized and spurious terms such as national security, public interest, public morality et al which ultimately avail a lot of room for denial of rights to the citizenry. It would therefore have been appropriate to just list the rights and treasured freedoms that are intended for the Swazi citizens without making any derogations or limitations and then formulating a generalized derogation formulated as follows:

“The rights in the Bill of rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity equality and freedom taking into account all relevant factors including;
1. The nature of the right
2. The importance of the purpose of limitation
3. The relation between the limitation and its purpose
4. Less restrictive means to achieve the purpose”

A lot of discussions have been had on whether section 25, which affirms freedom of assembly and association, now creates an environment where political parties can now exist legally thereby changing the position that was introduced by the King’s Proclamation to the nation of 1973. Section 25 has to be understood in light of the provisions of section 79 which clearly states that one’s assumption of political office will be premised on individual merit. We also have to understand that political parties exist primarily so that they can contest for political office and avail the electorate an alternative to whatever government is holding fort at any given time and are not merely entities that exist to hold “Sunday picnics”. The closure of space within which they can contest for political office could serve as a denial of their existence in the first place. It should be noted that constitutions that do not contain a clause committing the country to multi-partyism cannot be considered as having a culture of constitutionalism. To further indicate the authorities’ paranoia for any form of political grouping, the words political and civic under section 58 of the Bill were ordered to be removed in terms of the special message communicated to parliament by the King. In their analysis of the draft constitution, the International Bar Association Expert Panel stated that the right to form and join political parties should be expressed and clearly guaranteed. This observation is pertinent and necessary for a country that has a history of a one party or no party rule.


Some major contradictions obtain in this constitution. An example would be the right to life which is given and subsequently derogated upon in section 15 while section 38 on the other hand identifies the right to life as one of those rights that cannot be derogated upon. We can only wait and see what happens in this arena when the courts continue handing down capital punishment on offenders as per the dictates of section 15 and those offenders invoke section 38 of the same constitution which cited the right to life as inviolable.

A whole set of rights which are part of the four United Nations Conventions that Swaziland ratified in 2004 which encompass social, economic and political rights have been removed from the Bill of Rights and are located under the directive principles of state policy in Chapter 5 and are made non enforceable. Directive principles of state policy generally refers to aims and objectives of the state and do not place an onus on government to provide for services such as health, education, housing, shelter and adequate nutrition. This means that we have now missed a chance as a country to domesticate some very critical instruments to which we had entered no exception or reservations. The obvious counter argument to this critique could be that some developing countries in the region and some of the celebrated democracies in the world such as India have a similar formulation as Swaziland in so far as socio and economic rights are concerned. It is often said that the rationale for this is that these countries do not want to be burdened with providing for these rights as they lack the financial means to meet such entitlements. In fact in some of these celebrated democracies, their courts, have in interpreting the directive principles of state policy in so far as they contain the rights enumerated above, actually affirmed these rights even though they had been clearly cited as being non justiciable. Whereas judicial activism abounds in most jurisdictions, one tends to doubt that that could be the case in Swaziland especially if we look at the fact that almost the entire bench is working on an acting capacity thereby not enjoying security of tenure. It is human nature that where there is no security of tenure, you do not find instances where people will act in a manner or take decisions that will offend the master lest they put their chance of further employment in jeopardy. Moreover, the democratic culture does not exist in Swaziland which could help in nurturing that environment where judges will act in a way that they will know that their decisions will not be visited with severe repercussions on their careers. It would therefore be important that the rights located under the directive principles of state policy are located in the Bill of Rights proper and as already suggested, rather than specifying in each right the circumstances where a limitation of such right is reasonable or justifiable or is impracticable to implement, a universal limitation clause should be included which will indicate the general requirements for limiting rights and providing for limitations of limitations such as the principles of proportionality or necessity in a democratic society and the prohibition of interference with the essential content of specific rights and liberties. Again the location of political rights under directive principles of state policies is indicative of government’s attitude to plurality.

The constitution sets up a Human Rights Commission. However section 165(3) (c ) of the constitution states that the Commission shall not investigate a matter relating to the exercise of any royal prerogative by the Crown. Effectively this means that the King and his functionaries, cannot be reported or investigated by the commission if the King’s name is cited as a result of the transgression on one’s rights.

By its very nature a Bill of Rights avails to the citizenry a shield with which they protect themselves against any transgressions on their rights from primarily their state and other citizens, institutions and organisations. This stems from the understanding that government and especially the executive arm of government is vested with too much power which it could use to run roughshod over rights of the citizenry hence the vertical and horizontal operation of rights. However section 169 of the constitution bars the commission from investigating any matter leading to, resulting from or connected with the decision of a minister, inquire into or question the policy of government in accordance with which the decision was made. This position is totally unacceptable as it permits the adoption of policies that will be in variance with the spirit of the constitution in so far as it espouses people’s rights. All rights must be enforceable and have practical application. The constitution must provide that when people allege that their rights have been violated, they have access to a court and if the alleged violation has occurred, an adequate remedy is applied for the violation. Without such a provision, a Bill of Rights has as much worth as the paper it is written on. A Bill of Rights that is implementable and enforceable is one of the most powerful protections that citizens acquire against tyranny, oppression and abuse.

The absence of the right to information is quite glaring for a country like Swaziland where certain national budgetary lines do not fall for debate such as the Swaziland National Treasury and the army budget. Infact accountability and transparency are two terms that are frequently used as indicators to assess a country’s democratic processes. A generalized assumption is that if a constitution provides for an open and democratic society, based on public accountability, transparency, freedom and equality that country is committed to democratic governance. This may not always be the case as the manner in which systems seek to provide transparency and accountability may pose problems. Moreover the amount of corruption that this country has reached suggests that the right to information is needed yesterday as the perpetrators are almost all in high echelons of power.

The enumeration of variables against which discrimination can obtain falls short of the appropriate standard as segregation on the basis of sex, marital status, language, conscience, social origin, and culture have not been listed. This could create room for discrimination to lawfully obtain if it is premised on these variables.

In relation to women’s rights, section 28 of the Bill of Rights contains the rights to equality with subsection 3 stating that a woman shall not be compelled to undergo a practice to which she in conscience opposed. The major problem with this formulation is that it places the onus on the woman to identify the practice that she does not want to undergo instead of simply making unlawful or unconstitutional any custom that offends against women. Women will find themselves fighting lone battles against their families, communities, churches and other groupings with which they interact if those structures will hold a contrary view to that which the woman will have on that given custom.

Moreover parliamentarians had sought to amend the section 28 to enumerate culture as an additional basis upon which women should be equal. This again was a timely intervention as most of the inequality is premised on custom. That was changed in compliance with the message from the throne. One is yet to understand the rationale that informed the rejection of parliament’s suggestion on this section.

Whereas section 211 purports to give land to all citizens across gender lines, the problem comes about in the formulation of the section wherein it anticipates and accommodates “exigencies of a particular situation”. This statement can provide an overarching basis for denial of access to land since those exigencies are not enumerated. Further section 211 cites the usage of the land as being limited to only domestic purposes thereby limiting the ability of ordinary Swazi farmers residing on Swazi Nation Land to farm commercially.

Citizenship can still not be passed on by Swazi women to their children or their spouses yet we have a clause purporting to introduce equality.

In conclusion, the million dollar question is “Is this the kind of constitution that we want for ourselves and our children? It is worth recalling that Swazis have been largely classified as a passive society that does not read which places them in a position wherein they cannot critically engage documents and structures that map out their identity and subsequently their destiny. A lot of instruments have been signed and or ratified by our government which spell out a general direction that countries the world over want to use as bench marks for determining the relevance of their structure to a democratic polity. Our constitution offends most of these standards that the rest of the world has set in order to create open societies. It remains critically important that the citizens wakeup from their deep slumber and become part of the critical mass that will challenge our government not to take its citizenry for granted. This piece therefore challenges every Swazi to acquaint themselves with their constitution and constructively seeks means and ways of engaging our government to create a proper democratic order if our country is to embrace a proper democratic order.