SWAZI KING AND THE CONSTITUTION

The new Swaziland Constitution is getting quite an airing in the Swazi media lately. If it is not being cited in reports about the Elections and Boundaries Commission (either to support of defend the recent appointment of the board members), then it is in stories about the election itself and whether guaranteeing ‘freedom of assembly’ and ‘freedom of expression’ also means that it is now illegal for political parties to be banned in the kingdom.

Then there is the position of King Mswati III himself. Is he a ‘constitutional’ monarch with no decision-making powers himself, or does he continue to be autocratic and rule by the 1973 decree? Or, possibly, does he land somewhere between the two?

Prince Mfanasibili, who writes in the Times Sunday, reminded me of this last point. Yesterday, (27 April 2008) he returned to a recurring theme of his, one that could loosely be described as: ‘the Constitution has taken all the king’s powers away’.

Prince Mfanasibili is what is known as a ‘traditionalist’ in Swaziland. I suppose you can tell from his name that he isn’t of common stock.

Mfanasibili again stated that ‘the king has no powers in the new constitution’. He then went on to quote chapter and verse (or more truthfully, section and sub-section) to demonstrate his point.

Mfanasibili also says, ‘I know that a constitution is a very complex document to read with full understanding, particularly if you are not a legal orientated person.’

I assume that last statement is meant to deter people from reading the constitution themselves. How could you possibly read it properly and understand it if you do not have Mfanasibili’s ‘legal orientated’ mind?

But people shouldn’t be bullied off reading the constitution. It’s a fine document and contains all the stuff that a modern constitution should. There’s freedom of speech (as long as your chief agrees), freedom of assembly (but no political parties), gender equity (except if women say they don’t want it), respect for life (except where the Swazi police kill unarmed people). Hey, you even have the constitutional right to whip your child.

But what about the king: is he a constitutional monarch or not?

Here’s what the constitution actually says: word for word. ‘The King shall be immune from suit or legal process in any cause in respect of all things done or omitted to be done by him’ (s11 (a)).

In plain English that means the law does not apply to the king.

Here’s another more complicated section (You might not need a legal mind to understand it, but a degree in English would be useful). ‘Where the King is required by this constitution to exercise any function after consultation with any person or authority, the King may or may not exercise that function following the consultation’ (s65 (4)).

In plain English that means the King can consult as much as he wishes but he is not constitutionally obliged to follow the advice. He can make any decision he wishes.

Now Mfanasibili, what was it you were saying about constitutional monarch?