Search This Blog

For more coverage follow us also on Twitter and Facebook


Saturday, 6 October 2012

CONSTITUTIONAL CRISIS: WHERE NOW?



A constitutional crisis may be looming in Swaziland after the House of Assembly voted to sack the Government.
   
The Swazi Constitution of 2005 requires King Mswati III, sub-Saharan Africa’s last absolute monarch, to comply with the vote, but expectations are that he will not do so. Reports from the kingdom suggest that he has been in talks with advisers to find a way to ignore the vote and allow the government he personally handpicked to remain in power.

His supporters have been deliberately confusing people about the validity and significance of the vote, especially as it relates to the Constitution, so here is a summary of what has been happening this week and what the Constitution really says on this issue.

On Wednesday (3 October 2012) the House of Assembly passed a vote of no confidence in the Government with 42 members in favour, six against and two abstentions. This total was more than the three-fifths of all members of the House required for S68 (5) of the Constitution of 2005 to kick in.

This clearly states that where a resolution of no confidence is passed on the Cabinet by three-fifths of all members of the House the King ‘shall dissolve Cabinet’.

There is a slight complication, however, because S134 (5) (b) of the same Constitution also states, ‘where the House passes a resolution of no confidence in the Government of Swaziland and the Prime Minister does not within three days after that resolution resign, the King may dissolve Parliament or Cabinet.’

This goes further than S68 (5). It gives the King the option to not only sack the Government but also the entire Parliament.

But, it is clear that the House of Assembly in its vote this week never intended for the whole of Parliament to be sent home, so the King’s choice in this case is clear: sack the Cabinet but not Parliament.

S134 also allows a three-day period in which the sacked government can honourably resign and clear its collective desk. In the present situation Prime Minister Barnabas Dlamini made it clear from the moment the no-confidence vote passed that he had no intention of resigning. The three days deadline has now passed so there is no reason for further delay on the part of the King.

Supporters of the Government have been trying to suggest that the House of Assembly vote is invalid because the vote of the House alone is not enough to sack the government: the Senate must also vote. This is not the case. Sections 94 and 95 of the Constitution clearly differentiate between the roles of the Senate and the House of Assembly. Both S68 and S134 when dealing with votes of no-confidence clearly state it is the vote of the House of Assembly that counts. So, in the present situation, the Senate has no say.

The Swaziland Government’s Attorney-General Majahenkhaba Dlamini claimed the vote was invalid because members of the House had censured the Government over its handling of the telecoms parastatal SPTC, when courts had already ruled on the matter - and forced the government's hand. Thereby, he argues, the Cabinet has done no wrong.

Others, including the Swaziland Coalition of ConcernedCivic Organisations and the Constituent Assembly, say the House of Assembly was not only commenting on the telecommunications industrial issues but on the underperformance of the Cabinet and government as a whole.

In reality, it does not matter what were the motives of members of the House when passing the vote. The fact alone that the motion has been passed is all that matters when considering the present Constitutional position.

So what happens now? If King Mswati really believes in democracy as he says he does, then he must follow the Constitution and sack the Prime Minister and Cabinet.

But, that will not be an end to the crisis. In Swaziland, where all political parties are banned, there is no alternative government. The present government was picked by the King. He appointed the present PM in 2008 in contravention of S67 (1) of the Constitution that states ‘the king shall appoint the Prime Minister from among members of the House’, but Barnabas Dlamini was not a member of the House and had not been elected to any office. The King simply decided to ignore the Constitution and put his own man in the job.

Members of the Cabinet were also appointed by the King, with S67 (3) only requiring that at least half the Cabinet ministers have been elected to the House. This leaves scope for more of the King’s placemen to be appointed.

The lack of political parties in Swaziland means there is no ‘official opposition’ as is common in parliamentary democracies and therefore there is no government in waiting. The best the Swazi people can hope for is that King Mswati will sack the present government and replace it with people very much like those who have been deemed to have failed.


See also
CALL FOR CABINET TO QUIT GROWS


KING EXPOSED BY NO-CONFIDENCE VOTE

No comments: