Swaziland’s Supreme Court has given a ringing endorsement to the kingdom’s constitution.
In a judgement handed down last week the court stated that almost all members of the Swazi nation recommended that King Mswati III should keep his powers and they were also happy with the present system of Tinkhundla government.
The Swazi News reported (24 May 2008) that the Supreme Court turned down an application from civic society organisations to have the constitution set aside so that a new one could be written. The court said that there were no problems with the way that the constitution was written as the Constitutional Review Commission (CRC) which drafted the constitution followed the guidelines it was given.
These guidelines made it impossible for any group in Swaziland to make representations about the constitution. Only individual people were allowed to have a say.
It is of course no surprise that the court made this decision as it was operating on a strict interpretation of the law. The law said groups couldn’t be represented and they weren’t. The interpretation was correct; it was the law itself that was bad.
I have written before that 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.
However, we don’t really know what the will of the people was, 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
I don’t know why the media have allowed the myth of consultation to grow in the public’s mind. Even the media were 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 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.
SECRECY AND THE SWAZI CONSTITUTION