SECRECY AND THE CONSTITUTION

Last week the High Court denied Swazi people the right to see records about how the Swaziland Constitution was drawn up

Put simply, the High Court said that nobody was allowed to see the records because the Constitutional Review Commission, which controlled the constitutional drafting, said they couldn’t.

There was extensive coverage of this decision in the media last Wednesday (7 November 2007) and the Weekend Observer on Saturday (10 November 2007) published the High Court decision in full.

Judging by the amount of space given to it, the Swazi media thought this was an important story, but not for the first time they missed the point entirely.

Ever since the Constitution was published and enacted in 2006, Royalty, politicians and the media have been telling us that we shouldn’t complain about its contents, because the Constitution represents the will of the people.

What the High Court case reminds us is that we don’t know what the will of the people was. This is because all the documents containing information on the way the constitution was drawn up, and what the people said during the period the constitution was drafted, have been kept secret.

But there was no secrecy about the secrecy. We have always known that the documents have not been available to the public. The High Court case merely confirms this.

I don’t know why the media have allowed the myth of consultation to grow in the public’s mind. Even the media was banned from reporting on discussions while they were taking place.

This shroud of secrecy was well known. In 2003 after the first draft of the constitution was published, King Mswati III expressly requested a group of international lawyers known as the International Bar Association (IBA) to study the draft and to give him comments.

The IBA report, 'Striving for Democratic Governance’, called the draft constitution ‘flawed’ and reported that one critic went so far as to call it ‘a fraud.’

It is worth looking at the IBA report in some detail because it clearly sets out what was going on during the drafting process, which was controlled by the CRC.

The CRC did not allow the judiciary or NGOs to contribute to the debate and ensured that individual Swazi people were interviewed in the presence of their chiefs. As a result the ‘overwhelming’ majority said they 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 am bound to say that given the way that the people were ‘consulted’ with chiefs present, and the powers that chiefs hold over their subjects, it is difficult to imagine the people coming to any other conclusion.