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’.
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