Can we please tell the truth about the Swaziland Constitution and how it does not embody the will of the Swazi people?
Hardly a week goes by in Swaziland that some member of the Royal Family or one of its apologists claims publicly that Swaziland has a ‘unique democracy’ and this is so because it is enshrined in the constitution and the constitution was written after consulting the Swazi people.
This claim to legitimacy is particularly loud at times when democrats (especially outside of Swaziland) question the democratic credentials of the Swazi leaders. This most recently happened after Maurice Parker, the US Ambassador to Swaziland, said his embassy would support groups in Swaziland that were campaigning for more democracy.
The fact is, however, that the Swaziland Constitution does not embody the will of the people, instead it is a document written specifically to maintain the power of a small elite, centred on the Swazi monarchy.
This was recognised from the very start. In 2003 after the first draft of the constitution was published, no less a person than King Mswati III invited the International Bar Association (IBA) to comment on the document. The resulting report (click here to see it) was stark in its criticism of both the process of ‘consultation’ on the constitution and the wording of the document itself.
The report called Striving for Democratic Governance was couched in legal and diplomatic language but it nonetheless called the constitution ‘flawed’. It went so far as to report one critic who called the constitution ‘a fraud.’
One of the IBA’s main conclusions was that the ‘position and powers’ of some ‘stakeholders’ in Swaziland, ‘including the Monarchy’ are in effect ‘actually placed above the Constitution and its principles’.
The IBA studied what was going on during the drafting process, which was controlled by the Constitutional Review Commission (CRC).
The CRC did not allow the judiciary or NGOs to contribute to the drafting process and ensured that individual Swazi people were interviewed in the presence of their chiefs. As a result the ‘overwhelming’ majority wanted the King to keep all his powers and wanted the position of traditional advisers to the King to be strengthened. They also wanted Swazi customs to have supremacy over any international rights obligations.
The IBA report states, ‘The terms of reference of the Commission did not allow expressly for group submissions, and as apparently they were not entertained, NGOs per se were effectively prevented from commenting. The IBA panel considers that, unfortunately, this in itself deprived the CRC of much valuable input.’
The IBA report goes on, ‘The CRC also faced a number of practical problems. There were disputes between local chiefs, collecting views during the rainy season in Swaziland was difficult, and several Commission members resigned.
‘The extent to which individual Swazis were consulted has also been questioned. The CRC did not keep records of the submissions it received and media coverage of submissions was apparently banned.
‘There is therefore no formal record of how Swazi citizens presented their views and of what in fact they said to the CRC.
‘Furthermore, information was elicited in a highly charged atmosphere. Individuals were reportedly asked, in the presence of chiefs, whether they wanted to retain the King and whether they preferred political parties.
‘The CRC report states that “there is a small minority which recommends that the powers of the monarchy must be limited” and continued that “an overwhelming majority of the nation recommends that political parties must be banned”.
‘The report concludes that “an overwhelming majority recommends that the system of Government based on the Tinkhundla must continue” and, as well as the ban on political parties being maintained, that the executive powers of the King should be maintained, the position of traditional advisers to the King strengthened, and Swazi customs have supremacy over any contrary international rights obligations.’
I have to say that under the circumstances in which the ‘consultation’ took place it is no surprise that ‘the Swazi people’ said they wished to keep the monarchy and the present traditional system.
In November 2007, the Swaziland High Court ruled that documents pertaining to the drafting process could not be made available for public scrutiny, thereby allowing the ruling elite to maintain the fiction of full consultation.
Under the constitution the monarchy remains above the law and political parties are banned. This is a very ‘unique democracy’ indeed.