The African Human Rights Commission
PUDEMO is pleased for being afforded the opportunity by the commission to brief it about its position regarding the adoption and coming into force and effect of the Swaziland Constitutional Act 001/2006.
The purported ‘acceptance’ of the Constitution by His Majesty the King and a small section of the Swazi nation it to be lamented as it will be recalled that such“acceptance” was done amidst objection by organised civil society, basically for the reason among many that the process was exclusionary, in that it prevented and prohibited a large section of the people of Swaziland from participating and making submissions to both Constitution Review Commission and the Constitution Drafting Commission. While the said reception of the Constitution by His Majesty the King andsome members of the Swazi nation cannot be said to have been acceptance by all the people of Swaziland, the enactment thereof by Parliament was also flawed inthat Parliament was not authorised and mandated to do so, particularly giventhat it is not itself a product of a democratic process representing thegeneral consensus of the people of Swaziland.
In this regard, it should be noted that in as much as the Tinkhundla system of Government was imposed upon the Nation by King Sobhuza II, it does not represent the exercise of sovereignty by the people. This is the main faction of the Tinkhundla system of government which criminalises and bans political parties. The electoral process under this system, is an important element of deception as evidenced by the fact that both the candidates and the voters donot decide anything fundamental and basic, but are used to rigidly set the term and parameters on acceptable position of major political question. The report of the Commonwealth Expect Teamof October 2003, it stresses this point by saying “We do not consider the creditability of the national elections as an issue; no elections can be credible when they are for parliament which has no power and when political parties are banned’.
It must not be left out of account that this electoral system and the regime governing its operation which this constitution purports to enshrine in section 79 thereof does not come any closer to the electoral bench mark envisaged by the Electoral Institute of Southern Africa.
Note further that the African Commission, after due consideration and determination of the Swaziland Lawyers for Human Rights petition found that the Swaziland Constitution making process was exclusionary and in the result undemocratic and contravening some international conventions which Swaziland was signatory to. This constitution is a recipe for national strife, whose consequences are too ghastly to contemplate.
After ong preparatory discussions and consultations with various stakeholders and legal experts, PUDEMO and other organised civil society groupings have ultimately resolved to institute legal proceedings to challenge the validly ofthe 2005 Swaziland Constitution on the following grounds.
a) That the process did not comply with spirit, object and purport of the provisions of the King’s Proclamation to the Nation of 1973, particularly paragraph 2(e)thereof which reads thus:-
That I and all my people heartily desire at long last after a long constitutional struggle, to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty and without outside pressures; as a Nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good government and the happiness of all our people.
The fact that the said Proclamation was a legal nullity from its inception is no longer an issue served to show the propensity on the part of the powers that be, even in future to act unconstitutionally and unlawfully and to the further detriment of real and genuine national interests. It should be noted that interms of the constitution at issue, His Majesty the King can even unilaterally and/or on the advice of the prime minister, who is appointed by him, repeal this constitution.
b) The2005 Swaziland Constitution was not accepted by the King and the whole Swazi nation as envisaged by Section 80 (2) of the 1978 King’s Order Council,pursuant to the spirit of the 1973 Proclamation. PUDEMO holds the view that a process of returning the country to a constitutional multiparty parliamentary democracy has to be initiated and implemented by a body that has been created through universally recognised democratic principles. Anybody else, inclusive of the said Constitutional ReviewCommission (CRC) and the Constitutional Drafting Commission (CDC), created outside this minimum standard invariably lacks the mandate and is unable to command national respect and support and as such it cannot create the necessary foundation for peace and good government. Note further that the commissioners for both the said CRC and the CDC were hand-picked and appointed by an individual [the king] who further imposed on them the terms of reference. If this, on the part of our absolute monarchy does not amount to absolute dictatorship, the latter needs to be redefined.
c) TheCRC and the CDC were wrong in giving a narrow meaning to Decree No.2 of 1996 and in the result, prohibiting, preventing and refusing all organised groups,particularly the applicants, from participating and to receive submissions from them.
d) In any case, the constitution making process was instituted by Decrees, yet His Majesty the King did not have power to legislate by decree; see Ray Gwebu vs. The King. Given that even the repeal of the Swaziland Independence Constitution was done unconstitutionally and unlawfully, the said propensity poses a real and immediate threat to the peace, prosperity and stability of the nation as pointed out in paragraph [a] herein supra.
e) In interpreting the provisions of the 1973 King’s Proclamation to the nation as read with the 1978 Establishment of Parliament Order, the 1996 Decree No.1 of 2002,the CRC and the CDC were obliged to take into account the provisions of international human rights instruments and international law, in order to giveeffect to the rights of each and every citizen of Swaziland, whether individually or as organisations especially in the context of constitution making. For these reasons, PUDEMO andthe other applicants request that the Court declares the 2005 Swaziland Constitution null and void, and of no force or effect.
In the alternative, it will be requested that the provision of the Bill of Rights,particularly Section 25 thereof must be interpreted to mean that the people of Swaziland have the right, not just to form associations such as churches,farmers association, community development schemes and others, but fundamentally that they have a right to form, join and belong to political parties and organisations on their own free will and of their voluntary choice for purposes of forming a Government. This is so particularly given that eight times the constitution pays respect to democratic principles, values and standards. In this respect Section 79 which purports to prevent and prohibit multi-party parliamentary national elections must be set aside as being null and void from the inception.
It is the view of PUDEMO, the other applicants and all right thinking and reasonable men and women of the Swaziland that democracy and good governance have been adequatelyand correctly defined and articulated and in the light hereof, Swaziland cannot re-invent the wheel. The basic tenants and attributes of democracy and governance are no longer in dispute even behind the façade of the so called unique Swazi culture and custom, which in order to survive the assault of time, should adapt to socio-economic and political transformation. It is accordingly unreasonable and as such, unacceptable the Swazi authorities in their Constitution Review Report undertake to domesticate the various international conventions, which the country has ratified only if they are not inconsistent with the not yet codified Swazi law and custom.
PUDEMO wishes to plea with the people of the country, just as African leaders did under NEPAD agreement. Good governance,human rights and constitutionalism have been long denied in Swaziland. This so-called new constitution is not worthy the paper it is written on. It entrenches a system of government which,we as a people, have not agreed upon. That system is a discriminatory system and not giving value to the dignity (buntfu) of all Swazis. We have not only a moral obligation, but a duty to strive for a constitution that will ensure equitable sharing of resources, equal treatment of all people before the law,as well as the creation of independent structures that will guarantee the growth and development of constitutionalism.
It is not only for the reason of being excluded in the process that PUDEMO and other applicants denounce and reject this cattle byre Constitution, it is also because of the unacceptable contents thereof. We call upon the Swazi people to galvanise themselves so that, at the end of the day, they can all enjoy a better life under a government truly created by themselves, for themselves and accountable to them for all intents and purposes. We want a constitution that will create a conducive environment for peace and prosperity. A constitution that will, within the framework of civilised and acceptable constitutional law, provide an enabling environment wherein the people of this country can severally and/or jointly pursue, to the fullest, their separate and/or combined interests in social,economic, political and other fields of public life.
It is not only in the interest of the Swaziland, but the whole SADC region and Africa at large that Swaziland should be assisted to amicably resolve her constitutional and political problems. In this connection, pre-emptive action by the said region cannot be overstated.
The struggle continues.
Yours in the struggle
DEPUTY SECRETARYGENERAL – PUDEMO
cc: Electoral Institute of Southern Africa –Victor Shale
Southern African Litigation Centre – NicoleFritz