Swazi Media Commentary: International Bar Association

Showing posts with label International Bar Association. Show all posts

Thursday, 17 August 2017

SWAZI KING WRONG ON CONSTITUTION

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’.

Thursday, 1 August 2013

KINGDOM’S CONSTITUTION IS ‘A FRAUD’

The Swaziland Government’s official spokesperson Percy Simelane scored an own goal when trying to defend the legitimacy of the kingdom’s constitution.

Simelane was reacting angrily to South African parliamentarians who said the Swazi House of Assembly and Senate had no power and also that the national constitution ‘meant nothing’.

Simelane told Swaziland’s state-controlled radio that the constitution came into being with input from the International Bar Association (IBA) among others. He claimed this meant that the constitution had support from international organisations.

What he failed to mention was that the IBA called the draft constitution ‘a fraud’.

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 IBA pointed out that the judiciary and non-government organisations (NGOs) were not allowed to take part in the consultation before the constitution was written. Also, individuals were interviewed in front of their chiefs so were not free to say what they really thought about the powers of the king and what he and his followers like to call Swaziland’s ‘unique democracy’, the Tinkhundla system.

IBA said the consultation did not allow for groups to make submissions and incomplete records were kept of the submissions that were made so, IBA said, there was no formal record of how Swazi citizens presented their views and of what in fact they said.

On top of this the IBA reported that the Swaziland media were not allowed to report on the submissions.

‘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,’ IBA said.

Under these circumstances it is obvious why the people said they wanted to keep the existing system.

Wednesday, 17 April 2013

SWAZIS DID NOT CHOOSE POLITICAL SYSTEM

Swaziland’s Prime Minister Barnabas Dlamini is too blinkered to have seen the irony when last week he told newspaper editors that the Swazi people had made it clear they were happy with the political situation in the kingdom and then days later the police, acting without a court order, stopped a public debate taking place on the same subject, declaring it was a threat to national security.

Dlamini was commenting on the forthcoming national election in Swaziland where political parties are banned. In recent months there has been an increasingly vocal campaign in the kingdom to boycott the election unless parties are allowed to take part.

The PM told a meeting of editors that the people had been asked a number of times whether they wanted to change from the present system. For the past 40 years Swaziland has been under the rule of an autocratic monarchy. In 1973 King Sobhuza II made a Royal decree that junked the Constitution and allowed himself to make any laws or change existing ones as he saw fit.

The decree has not been rescinded since and today his son King Mswati III rules as sub-Saharan Africa’s last absolute monarch.

Dlamini is entirely wrong when he asserts that the people of Swaziland have given their support to the current political system. In fact they have never been asked.

The closest the kingdom’s rulers got to asking the question was in the ten years running up to the writing of what is known as the 2005 Swaziland Constitution. But the authorities had so little confidence that people would support the status quo that they did not allow them to discuss in any meaningful way what should be in the constitution.

The only submissions that were allowed on the subject had to come from individual people expressing personal opinions. NGOs, professors from universities, research groups or any collection of people who might have had expertise on constitutional matters or the political and economic situation pertaining in Swaziland were barred.

The consultation was so flawed that the International BarAssociation (IBA), a group of experienced lawyers called in by King Mswati to comment on the first draft of the constitution, called the process ‘flawed’ and reported that one critic went so far as to call it a ‘fraud’.

The IBA pointed out that the judiciary and non-government organisations (NGOs) were not allowed to take part in the consultation. Also, individuals were interviewed in front of their chiefs so were not free to say what they really thought about the powers of the king and what he and his followers like to call Swaziland’s ‘unique democracy’, the Tinkhundla system.

Under these circumstances it is obvious why the people said they wanted to keep the existing system.

So, we must not allow the king and the unelected Prime Minister he personally chose to claim that the people have made it clear they are happy with things the way they are.

Wednesday, 16 January 2013

KING’S NEW THREAT TO CONSTITUTION

News that Swaziland’s autocratic ruler King Mswati III wants the kingdom’s constitution amended so that things he has done illegally in the past become legal will surprise no one who observes the way he operates.

In particular, the king illegally appointed Barnabas Dlamini Prime Minister in 2008. The constitution states the PM must be a member of the Swazi Senate, but Dlamini was not.

The Times Sunday newspaper in Swaziland reported the amendments would ‘incorporate, among other things; prerogatives of His Majesty the King, which were mistakenly omitted’.

Who says they were ‘mistakenly omitted’ is not reported by the newspaper.

Prince Guduza, Speaker in the House of Assembly, told the newspaper there were moves afoot to amend the constitution, but he would not be drawn on which parts.

The newspaper reported the Prince ‘said he would not disclose the provisions that should be amended. He hinted though that those provisions were political in nature.’

Observers of Swaziland’s recent history know that the constitution of 2005 is not worth the paper it is written on. The king chooses to ignore it whenever he wishes.

The most recent and most stark example of this happened in October 2012 when the House of Assembly passed a vote of no-confidence in the Prime Minister and the Cabinet. According to the constitution the king was obliged to sack the government (he had no discretion in the matter).

However, King Mswati, who is sub-Saharan Africa’s last absolute monarch, ignored the vote. Instead, through his traditional structures he put pressure on the House to re-run the vote, this time ensuring it did not pass and the government survived.

Many organisations have called for Swaziland’s constitution to be rewritten in the past, but their intentions were to make the kingdom more democratic, not less.

In July 2008, the European Union declined an invitation to monitor the Swaziland national election 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).’

There was very little credibility in the way in which the constitution was originally drawn up. King Mswati invited the International Bar Association (IBA) to review the first draft of the constitution and the IBA’s verdict was damning.

The report called the constitution ‘flawed’ and went so far as to cite one critic who called the constitution ‘a fraud.’

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 said that the judiciary and NGOs were not allowed to contribute to the drafting process and 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.

Considering how the ‘consultation’ of the Swazi people was conducted it is no surprise they reached this conclusion.

Sunday, 2 May 2010

SWAZILAND P.M. CONSTITUTION LIES

Barnabas Dlamini, the illegally-appointed Prime Minister of Swaziland is telling lies again.

Actually, it’s not a new lie: it’s one the ruling elite tell over and over again.

Dlamini told a meeting of Swazi media editors this week that the kingdom’s constitution that came into effect in 2006 was chosen by the people.

And that is just not true. And the editors know it and they shouldn’t allow Dlamini to get away with it.

Here’s what really happened. After the first draft of the constitution was written King Mswati III, sub-Saharan Africa’s last absolute monarch, invited the International Bar Association (IBA) to comment on it.

The IBA in a report said as clear as clear can be that the process of so-called consultation was deeply flawed.

IBA said the consultation did not allow for groups to make submissions and incomplete records were kept of the submissions that were made so, IBA says, there is no formal record of how Swazi citizens presented their views and of what in fact they said.

On top of this the IBA reports that the Swaziland media were not allowed to to report on the submissions.

Add that lot together and there is no way you can say that the people of Swaziland were consulted properly.

IBA, using very diplomatic language, called the process ‘flawed’ and said that one critic went so far as to call it a ‘fraud’.

You can read more of what I have written on the IBA here.

For the full IBA report - Striving for Democratic Governance – click here.

Sunday, 25 October 2009

SWAZI REFERENDUM IS A CON-TRICK

Calls for a referendum over allowing political parties to exist in Swaziland seem to be growing.

The weekend papers have several reports and articles about the rights and wrongs of having a referendum on multiparties in the kingdom ruled by King Mswati III, sub-Saharan Africa’s last absolute monarch.

Political parties are banned in Swaziland by Royal Proclamation and supported by the recently-enacted constitution.

But there have been growing calls within Swaziland and the international community for the kingdom to become a democracy.

Now, the ruling elite have found a way of putting the argument to bed once and for all (they hope). Hold a rigged referendum that they will win.

We can confidently expect any referendum held on the subject to be rigged because there is a long history of stifling discussion in Swaziland.

The most pertinent example is the ‘consultation’ with the people over the contents of the Swaziland Constitution of 2006.

As I wrote in May 2008, the consultation over the constitution was a sham. Some people even called it ‘a fraud’.

How the debate was rigged was clearly documented by International Bar Association (IBA) in its report, Striving for Democratic Governance.

The IBA had been invited by King Mswati to comment on the process of writing the constitution that was overseen by the Constitutional Review Commission (CRC).

The IBA found 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 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.’

Under the circumstances it is difficult to see how ordinary Swazis could have come up with any other conclusion.

So the ‘debate’ on political parties and the constitution was rigged last time and it’ll be rigged next time if King Mswati has his way.

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