King Mswati III, Swaziland’s absolute monarch, mislead
when he told a television reporter that the constitution
in his kingdom was the will of the people.
In fact at the time the 2005 constitution was being
drafted, the International Bar Association, a group invited by King Mswati to
make comments, called it ‘flawed’ and ‘a fraud’.
King Mswati said in an interview with the South Africa
Broadcasting Corporation (SABC) uploaded
to the Internet on Monday (14 August 2017), ‘When we
created the constitution, this constitution which went around the people of
this country, every Swazi participated... was invited to come make a submission
in terms of how you want to see your constitution of this country, even when
the constitution was drafted before it was actually adopted. It also was
to give back to the nation, to read, and everyone was able to be given a chance
to make submissions and to comment... this was a process that took some years,
so we finally have a product of after nine years of consultation.’
He also said Swaziland was a democratic nation ‘in the sense that it is
people driven. It is not a one person state. It is the people saying this is
how we want to be governed.’
The King and his supporters have maintained for years that the Swazi
Constitution is legitimate and the will of the people. However, the International
Bar Association , a group of experienced lawyers, was
called in by King Mswati III in 2003 to comment on the first draft of the
constitution. It called the process ‘flawed’ and reported that one critic went
so far as to call it a ‘fraud’. The resulting report called Striving
for Democratic Governance was
stark in its criticism of both the process of ‘consultation’ on the
constitution and the wording of the document itself.
One of the IBA’s main conclusions was that the
‘position and powers’ of some ‘stakeholders’ in Swaziland ‘including the
Monarchy’ are in effect ‘actually placed
above the Constitution and its principles’.
The IBA studied what was going on during the drafting
process, which was controlled by the Constitutional Review Commission (CRC).
The CRC did not allow the judiciary or NGOs to
contribute to the drafting process 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.’
In November 2007 the
Swaziland High Court ruled that documents pertaining to the
drafting process could not be made available for public scrutiny, thereby
allowing the ruling elite to maintain the fiction of full consultation.
Under the constitution the monarchy remains above the
law and political parties are banned.
Many organisations have called for Swaziland’s
constitution to be rewritten to make the kingdom more democratic.
In July 2008 the European Union declined an
invitation to monitor the Swaziland national election later that year because,
it said, it was clear the kingdom was not a democracy. Later, it suggested a
wholesale review of the constitution was in order.
In November 2008 the Commonwealth
Expert Team, which had monitored the election called
for a
review because the elections were not credible since
political parties were banned in Swaziland. It said
that
the review ‘should be carried out through a process
of full consultation with Swazi political organisations and civil society
(possibly with the support of constitutional experts).’
After the most recent national election in 2013, the
African Union (AU) mission that observed it called for fundamental changes in
the kingdom to ensure people have freedom of speech and of assembly. The AU
said the Swaziland Constitution guaranteed ‘fundamental rights and freedoms
including the rights to freedom of association’, but in practice ‘rights with
regard to political assembly and association are not fully enjoyed’. The AU
said this was because political parties were not allowed to contest elections.
The AU urged Swaziland to review the Constitution,
especially in the areas of ‘freedoms of conscience, expression, peaceful
assembly, association and movement as well as international principles for free
and fair elections and participation in electoral process’.
In 2015, following a visit to Swaziland, a Commonwealth
mission renewed its call for the constitution to be reviewed
so the kingdom could move toward democracy.
In its report
on the 2013 elections, the Commonwealth observers recommended
that measures be put in place to ensure separation of powers between the
government, parliament and the courts so that Swaziland was in line with its
international commitments.
They also called on the Swaziland Constitution to be
‘revisited’.
The report stated, ‘This should ideally be carried out
through a fully inclusive, consultative process with all Swazi political
organisations and civil society (needed, with the help of constitutional
experts), to harmonise those provisions which are in conflict. The aim is to
ensure that Swaziland’s commitment to political pluralism is unequivocal.’
It also recommended that a law be passed to allow for
political parties to take part in elections, ‘so as to give full effect to the
letter and spirit of Section 25 of the Constitution, and in accordance with Swaziland’s
commitment to its regional and international commitments’.
See
also
POLL
OBSERVERS: REWRITE CONSTITUTION
SWAZILAND
PM CONSTITUTION LIES
SWAZIS
DID NOT CHOOSE POLITICAL SYSTEM
http://swazimedia.blogspot.com/2013/04/swazis-did-not-choose-political-system.html
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