May 2005

The Council of Swaziland Churches (CSC) has petitioned King Mswati 111 protesting against the Constitutional Bill that seeks to overhaul the tiny Southern African Kingdom’s current Constitution.

CSC argues that the Bill was an imposition on the Swazi population which was not granted an opportunity to make input into the controversial document largely seen as meant to perpetuate the King’s rule.

Below is a summary of the petition delivered to King Mswati on the 12th of May 2005;

Not aligning ourselves with any political formations, the Council of Swaziland Churches (CSC) which is bound by the Gospel to speak courageously about issues of justice that affect people’s welfare fell that there is need to engage government peacefully in issues of governance in particular the constitution making process. Having engaged in different lobbying strategies which have yielded no positive results such as writing letters to the Prime Minister Mr. Absalom Themba Dlamini for onward transmission to His Majesty King Mswati 111.

Having critiqued the Constitution Bill we assert that it will not usher in peace and stability, which is our greatest concern. This is because the Constitution Bill is not a product of consensus building but that of a few people imposing their views on the whole nation. Moreover the constitution making process has not complied with the principles of constitutionalism, human rights and democracy as enshrined in the international instruments that Swaziland ratified. WE decry the constitution making process, environment and content.

1. Process

Whilst we appreciate the efforts made by His King Mswati 111 in initiating the process, we decry the fact that the process has not been democratic, transparent and inclusive. This is evident for example in the fact that group representations were prohibited, members of both the Constitutional review Commission (CRC) and the Constitutional Draft Committee (CDC) cannot be said to be representative of the Swazi nation as the were handpicked on individual merit. Moreover, no empirical data exists from the CRC’s work to substantiate the generalized overreaching assertions about what was expressed by the Swazi people. Importantly the two processes that were undertaken in readiness for adoption, namely Sibaya and Parliamentary processes served to show that the Swazi nation was in need of civic education particularly with regards to constitutional issues. Furthermore, the adoption process is being fast-tracked without the input that would enrich the document.

2. Environment.
The constitution making process has taken place during a time when the King’s Proclamation to the Nation of 1973, which limits amongst other things the freedom of expression and assembly, still pertains. Moreover the rule of law has been disrespected and there has been lack of fiscal discipline.

3. Content
The Constitution Bill fails to address critical issues in terms of good governance, particularly in the context of Swaziland’s political history. Some of the pivotal issues that entrench the status quo may be looked at in light of the following: the Supremacy of the Constitution, Separation of Powers, the Bill of Rights and the issue of Duality.

The Supremacy of the Constitution
The supremacy of the constitution is questionable in light of the immunities for the King and iNgwenyama, Ndlovukazi, Umntwanenkhosi Lomkhulu and those who perform or act in their name, which effectively places them beyond the remit of the Constitution.

Separation of Powers
The principle of separation of powers is severely compromised as enormous powers are invested in the King and iNgwenyama.

The Bill of Rights
Derogations and claw backs erode the Bill of Rights. For example the Bill deals with the freedom of assembly and association, however there are no structures within which these political parties may represent their people because people are elected on their individual merit to parliament. The Bill of Rights contains contradictions and inconsistencies within itself. For example section 39 says there can be no derogation from the right of life but section 16 says that a person may be executed in fulfillment of a sentence. In addition, people will not be allowed to challenge the government in court for failure to deliver socio-economic rights.

The issue of duality
The Constitution Bill mixes up 2 separate positions of offices; iNgwenyama on one hand and the King on the other. It entrenches traditional structures that are meant to perform the same functions that cabinet is mandated to perform. Our concern is that the failure to harmonize this duality means that we shall not have peace and stability in the country.

Way Forward:
Now therefore, recognizing that there have been a lot of resources and time spent on this process has produced a concise document in relation to the constitution making process for advocacy and lobbying, we are of the view and propose as follows: That

1. The Constitution Bill should be subjected to debate and discussed in an open manner through an enabling environment allowing all stakeholders to have an input.
2. The CSC request for an audience of dialogue to the Constitution Bill as previously requested and not allowed, at your earliest convenience.
3. There should be removal or at the least, suspension of the offensive sections of the 1973 Proclamation to the Nation namely, decrees 11, 12 and 13 to allow free assembly and expression and therefore honest engagement of the populace with constitutional issues.
4. In the creation of a conducive environment there is need to unconditionally restore the rule of law and practice fiscal discipline when spending the country’s meager resources by authorities.
5. There is need for an establishment of an inclusive structure to ensure the effective representation and dialogue on the diversity of views on the constitution.

In conclusion we request that the Constitution Bill should not be passed into law and should be delayed until further dialogue has been engaged in order to ensure peace and stability for the Swazi nation and her International Partners. This will eliminate amendments to be made at a later stage once the bill is put into Law.