SWAZI LAWYERS DEFEND RIGHTS

Swaziland Lawyers for Human Rights have accused the kingdom’s Attorney General of misrepresenting the constitution.

And at the same time the lawyers have unintentionally exposed major deficiencies in Swazi journalism.

The story starts on 22 January 2008 when Swazi media reported the speech made by the Attorney General (AG) Majahenkhaba Dlamini at the annual opening of the Swaziland High Court. Large amounts of air time were devoted to the opening on radio and television and both daily newspapers gave over at least two pages each to the event.

The AG’s full speech was published in the Swazi Observer in the indigenous language siSwati (23 January 2008) and in English (24 January 2008).

Despite all of this coverage, journalists didn’t understand the importance of what the AG was saying.

It took a statement from Swaziland Lawyers for Human Rights to put them on track. In brief, the lawyers said that the AG misinterpreted and misrepresented the new Swazi Constitution that came into effect in 2006 on several matters of fundamental importance.

Only then did the Swazi media pick up on the story again. This forced the AG into issuing a ‘clarification’ that appeared in newspapers on 4 February 2008.

Swazi journalists missed the significance of the AG until alerted by the lawyers. This is not unusual in Swaziland where journalists tend not to have inquiring minds. The Swazi media much prefer to simply report what powerful people say and leave it at that. That is what the Observer did when it reported word for word the speech of the AG.

There is also a lot of evidence from the Swazi media generally that journalists don’t always really understand what it is that they are writing. You only need to look at the business sections of newspapers and at the jargon that is reproduced in their pages from press releases and company statements to see this in action.

The Swaziland Lawyers for Human Rights made several important criticisms of the AG’s speech and in doing so give an excellent account of just how undemocratic a state Swaziland is.

Below are some extended extracts from the lawyers’ media statement.

Concerns

What gives us great concern is the misinterpretation and misrepresentation of the Constitution by the Attorney General on several matters of fundamental importance.

These are:

- The fact that in his interpretation the executive (government) is first among equals.

- His assertion that the separation of powers can be found in the Constitution.

- His reliance on the Latimer House Principles to back up these assertions.

The Position of the Executive in the Swazi Constitution

Section 64 (1) of the Constitution states that - The executive authority of Swaziland vests in the King as Head of State.

In no way under Swazi law, custom, tradition or the Constitution can the King, and therefore the Executive, be said to be ‘first among equals’.

The King and iNgweyama has a special and revered role in Swazi traditional law and custom to such an extent that our custom dictates that ‘the King cannot tell a lie’.

This is not a prohibition of royal falsehoods but a statement on how truth and reality are recognized in Swazi Traditional Law.

The King and iNgweyama also has an elevated role under the Swazi Constitution where under section 11 he cannot be questioned in court and therefore his decisions cannot come under judicial scrutiny either.

Therefore it follows that our Executive is not first among equals but first among strongly weighted unequals. – ‘First among equals’ is a quaint term that was coined by the British constitutional historian and chief apologist for the aristocracy and the then status quo - Walter Bagheot to describe his interpretation of the nature of the British Prime Minister position in cabinet. It was no more appropriate to 19th Century Britain than it is to 21st century Swaziland.

Separation of Powers

The Attorney General continues by saying that the separation of powers can be found in the constitution. We strongly contest that assertion.Separation of powers is a philosophy of providing checks and balances between the three branches of government: the executive (government ministers and their departments), the legislative (parliament) and the judiciary (judges and the courts).

In theory, it distributes the power of the state between these three branches and maintains a healthy tension of oversight and accountability between them.

In a democracy that practices separation of powers the ultimate power rests in the will of the people, and so parliament and the legislature become the final arbiter of how the country is governed - not the executive.

We have already seen that in Swaziland the King has supreme executive authority. Let us look at parliamentary authority in Swaziland today.Section 106(a) of the Constitution says ‘the supreme legislative authority of Swaziland vests in the King-in-Parliament’.

It goes on to state the King can appoint nearly one fifth of the House of Assembly and two thirds of the Senate. The majority of both houses is required for a bill to become law. In any case, under section 134(b), the King has the absolute authority to dissolve parliament. It is impossible to argue that emaSwati have any real political power in this arrangement.

We know that the real power lies with the traditional authorities and Liqoqo in advising the King.In other countries, parliamentary elections are typically closely fought and so often the people in the centre hold the balance of power. This promotes a culture of problem solving, compromise and respect for minorities.

The Swazi system ensures an inbuilt majority for those who are sympathetic to traditional causes in all but the most extreme situations. Democracy is not reflected in the simple rule of the majority. It is equal access to power and influence by all.

The arrangement is Swaziland is simply and clearly not democratic.

Who Judges the Judges?

Turning to the how independent our judiciary is Section 141 guarantees the independence of the judiciary. However, the senior judges of the country are chosen by the Judicial Services Commission.

The majority of this commission is directly appointed by the King and his advisors. Given this fact, how independent can new judges really be?

The Attorney General admonition to existing and potential judges to get involved in traditional ceremonies such as iNcwala shows that he does not want independence but obeisance. This should not be a matter of concern for the chief legal officer of government. He needs to respect the ideal of judiciary independence. The judges of the country have the right and the freedom to attend or not attend without, as he so readily quotes, fear or favour.

All Angles Covered

Thus we can see that the combined position of the Monarchy and its advisors directly controls the make up of, and has the potential to manipulate the decisions of, all three branches of government. We therefore must disagree in the strongest of terms with the Attorney General that the Swazi Constitution embodies the doctrine of the separation of powers.

Commonwealth Rules

The Attorney General is happy to quote the Commonwealth Latimer House Principals to back up portions of his argument when saying that our Judges should remain subservient to the Constitution.

He conveniently neglects the preceding section that states that: Parliamentary procedures should provide adequate mechanisms to enforce the accountability of the executive to parliament.There is no history of regular and rigorous accountability of our government to parliament.

The Latimer House Principles go on to envisage a system of a multi-party democracy that is thoroughly grounded in the doctrine of parliament, not the executive, being first amongst equals and sets out a system of proper oversight of the executive by bodies such as an Opposition in Parliament, Ombudsmen, Public Accounts Committees, Human Rights Commissions, Auditors General, Anti-Corruption Commissions, Information Commissions, Judicial Review, an independent and vibrant media protected by law and a constructive relationship with civil society.

We are happy that, as the chief law officer of government, the Attorney General is aware of the Latimer House Principles, we will be a lot happier when he, and his cabinet colleagues, start to live by them.The principles are a model for good governance across the Commonwealth and, if the Attorney General wishes to talk to us about how to work towards their full implementation in Swaziland, our doors, and the doors of the rest of civil society, remain open.