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SWAZILAND: Special report on the draft constitution
[ This report does not necessarily reflect the views of the United Nations]
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© IRIN
King Mswati holding a bound copy of the draft constitution
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MBABANE, 6 Jun 2003 (IRIN) - The draft of Swaziland's first home-grown constitution has tried to balance the concerns of a royal establishment keen to retain power, and local and international demands for political reform.
The much-delayed constitutional project was initiated by King Mswati III, over the objections of pro-democracy groups who wanted a "people-driven" constitution. Seven years later, the final palace-authored document keeps governing power in the hands of sub-Saharan Africa's last absolute monarch, but also contains some notable challenges to tradition.
King Mswati is expected to approve the document in September, 30 years after his father overturned Swaziland's orginal independence constitution.
The draft constitution was presented to King Mswati on 31 May. Twenty-thousand Swazis filled the main cattle kraal at Ludzidzini royal village to hear him declare: "This is an historic moment when Swazis have charted their destinies for today and future generations."
That future looks a lot like the past, complained Jan Sithole, an executive with the Swaziland Coalition of Concerned Civil Organisations. The coalition, comprising banned political parties, business and legal organisations, labour unions and human rights groups, is withholding official reaction to the draft constitution.
But Sithole told IRIN that while socially enlightened aspects of the document, such as empowerment of women, are welcome and even impressive, the governmental system prescribed is non-democratic and therefore out of step with the aspirations of the Swazi people.
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The draft constitution has drawn praise from women's empowerment groups locally and abroad for ending centuries of second-class citizenship and domestic servitude for women.[Full Story]
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However, the coalition's strategy represents a significant shift from absolute rejection of the constitutional exercise. "The draft constitution has received the endorsement of the international diplomatic community in Swaziland, and we cannot be naïve and be obstructionists at this stage," said Sithole.
CONSTITUTIONAL REVIEW COMMISSION
Sithole, as secretary-general of the Swaziland Federation of Trade Unions (SFTU), was one of the principal motivators for a new constitution. In 1996, he led a total shutdown of Swaziland with a week-long "workers' stayaway".
King Mswati, then 27-years old, was reportedly alarmed by the extent of national discontent. He decreed a Constitutional Review Commission (CRC) to go to every corner of the kingdom, interview all adult Swazis and collect views on the way the nation would be run. On the basis of a national consensus determined by the CRC, a draft constitution would be ready by 1998.
The SFTU and opposition parties that had been officially banned in 1973 by Mswati's father, King Sobhuza, rejected the exercise, which was run by Mswati's brother, Prince Mangaliso Dlamini. Suspecting they were "window dressing" to be used to legitimise a constitution that would retain royal power, some prominent political reformers refused to serve on the CRC.
From the start, the CRC was plagued by scandal. The press was barred, blocking any independent account of proceedings, and the commission showed no urgency in completing its mission. After delays that saw the original 1998 deadline pass unfulfilled, and accompanied by uncontrolled expenditures, the European Union - one of the commission's original sponsors - withdrew financing in 1999, leaving Britain and the Commonwealth, the US and Taiwan as principal contributors.
Meanwhile, the Swaziland Democratic Alliance (SDA), comprising political and labour groups, demanded an end to the CRC. The SDA sought a constitutional convention, and an interim government to rule until a ratified constitution was in place.
What rankled the SDA was the CRC's acceptance of submissions by individuals only, and not from groups or organisations. Reports leaked from CRC interviews alleging that on occasion peasants were coached by commissioners, and intimidated by their chiefs, who monitored their submissions to see "nothing was said against the king".
"We are happy that the constitution contains a Bill of Rights. This is the cornerstone of all modern constitutions, and it conforms to the UN Declaration on Human Rights, to which Swaziland subscribes," said Dr Joshua Mzizi, a theologian at the University of Swaziland who heads the Human Rights Association of Swaziland (HUMARAS).
[Full Story]
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At the core of the SDA's envisioned constitution was a constitutional monarch who would serve as a symbol of national unity within a democratic system of government. However, in August 2001 the CRC presented Mswati with a report that said an "overwhelming majority" of Swazis disliked political opposition parties.
"A great plurality of Swazis" wanted the monarchy to not only continue to run the country uncontested, but with expanded powers. The report carried no statistical data showing the number of people interviewed, or a breakdown of what they said.
"The people have spoken," Mswati declared. He appointed another brother, diplomat Prince David Dlamini, to head a Constitutional Drafting Committee (CDC) to write a constitutional document in six months.
Two years later, the CDC presented to Mswati a draft constitution wrapped in gold ribbon, containing chapters that surprised critics of royal government. It came as a relief to foreign envoys who had been pressing for a completion of the constitutional exercise.
CONSTITUTIONAL DRAFTING COMMITTEE
The drafting committee in two years did what the original commission did not do in five: seriously consider the elements of a modern constitution, and devise a working governmental system. Commissioners consulted legal and social experts, and travelled to Britain to study the parliamentary and monarchical system that was rejected by King Sobhuza in 1973.
The result is a draft constitution that would still please Sobhuza for its retention of political power under the crown of the Swazi king, but reverses centuries of Swazi cultural precedent. It raises Swazi women out of their legal minority status, recognises that chiefs can no longer function in isolation, and acknowledges that in modern society, groups like the physically disabled and children require special attention.
In the proposed constitution, the king's ability to rule by decree is absent. So is the Court of Appeal, replaced by a Supreme Court that would become the kingdom's highest judicial body.
The Swazi king remains the head of the executive arm of government. No bill passed by parliament becomes law without his assent. The king appoints the prime minister and cabinet. The king appoints all chiefs and judges. He, the Queen Mother, and the resurrected traditional post of Authorised Person, who assumes executive duties if a king should die, cannot be taxed or sued.
Although the constitution is being called the ultimate law of the land, the Swazi king remains above the law and cannot be the subject of parliamentary legislation. He may dissolve parliament at any time.
The king appoints 20 of the 30-member House of Senate, eight of whom must be women. The other 10 members, five of whom must be women, are then appointed by a lower House of Assembly of 76 members – 60 popularly elected, 10 appointed by the king, and six special women members. The King heads the army, police force and prison system.
Political parties are not mentioned in the draft constitution. However, "freedom of assembly and association" is guaranteed in Chapter Four, entitled Protection and Promotion of Fundamental Rights and Freedoms.
HOW DEMOCRATIC?
What type of government does the draft constitution propose? An eleven-page summation of the 151-page document states, "Swaziland's political system is a democratic and participatory-based system."
Opposition groups, who are demanding clarification from the CDC as to whether or not they are legally "unbanned", consider talk of democracy little more than public relations.
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"I am happy that people like the contents thus far. It is a good document. It was created for the people today, and for the future. There is more discussion to take place. I would urge everybody to bring us their suggestions."
[Full Story]
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According to August Ndwandwe, a Manzini secondary school teacher and SDA member: "Democracy is not defined by how much people participate in community meetings, but where power lies. In democracies, the power resides in the people themselves. In Swaziland, political power remains in the hands of the monarchy. Calling a monarchy a democracy, because Africa and the world demand democratic governments, does not change the reality that by calling an elephant a horse the animal remains an elephant."
Ntombi Nkhosi, chairman of the Ngwane National Liberatory Congress' women's league, told IRIN: "The people of Swaziland, under the new constitution, still do not have the ultimate authority in the land, and cannot directly influence how their nation is run. Under the new constitution, the royal family still does that. The people may 'advise' and, like in the past, their advice will be accepted if it conforms to the agenda of the royal family, or it will be ignored if it conflicts."
Sithole commented: "I see a scenario where a political party is elected as a numerical majority of MPs, but [can] still have its legislation blocked by the majority of the House of Senate who are royal appointees. The people might elect a political party's candidates, but the acts they pass will not become law unless the king assents."
King Mswati plans to approve the draft constitution by October. Prince David hopes the document will be approved by September, in time for campaigning for October's parliamentary elections.
To complete the constitutional process, over the next few months the 30-member CDC will break into small groups to take the constitution to community centres around the kingdom. The Swazi people will be given copies of the document, and will be allowed to make comments to the commissioners.
If four months are insufficient to perform the national consultative exercise, the CDC will request a time extension. "But a delay until next year would postpone the elections. There would be no parliament, and I don't think anyone wants that," Prince David said.
Sithole prefers a referendum on the document rather than approval by royal assent. "This is a first draft only. After seven years of waiting, we need time to discuss it. Out of national discussions, a second and final draft would be written, which would be ratified by popular vote."
This is a departure from the oppositions' previous stance, which was to entirely ignore whatever document emerged from the CDC. Prince David's draft constitution is being used as a point of departure. "We have to be realistic in light of the international community's enthusiasm about the draft constitution," Sithole said.
Indicative of the foreign response were remarks of the director of the Office for Southern African Affairs at the US Department of State, Scott DeLisi, who met King Mswati this week. "After reviewing the draft constitution, and talking to many Swazis, both in and out of government, I am impressed by a growing consensus that the draft is a good starting point for dialogue among Swazis," DeLisi said in a statement.
SWAZILAND: Good news for women
SWAZILAND: Human rights and the draft constitution
SWAZILAND: Interview with head of Constitutional Drafting Committee
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SWAZILAND: Good news for women
SWAZILAND: Human rights and the draft constitution
SWAZILAND: Interview with head of Constitutional Drafting Committee
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