The Board of the Federation of Swaziland Employers and Chamber of Commerce has been monitoring the constitution making process for a number of years, and at its last meeting approved a formal response from business on the Draft Constitution of the Kingdom of Swaziland (hereinafter "the Draft Constitution"). This response was presented to the Commonwealth and other interested stakeholders in the process. Due to the terms of reference of the Constitution Drafting Committee it was unable to formally present the business position on the provisions of the Draft Constitution as well as the constitution making process. When the Constitution of the Kingdom of Swaziland Bill (hereinafter "the Bill"), was sent to Parliament with a Certificate of Urgency, the Executive Committee decided to host a meeting with a group of MPs and Senators. At the meeting the business response was presented as well as a publication called "QUO VADIS SWAZILAND" which was developed as a tool for stimulating dialogue amongst stakeholders in the country. The scenarios booklet also provides a context for the business position on critical aspects of the constitution.

The Executive Committee decided to establish a short-term project to provide technical assistance to members of Parliament and senators, as they engaged in the debate on the Bill. A Team of nine professionals was constituted comprising of representatives drawn from civil society organizations in the country and the secretariat of the FSE & CC. The Team was tasked with undertaking a detailed review of the Bill placed before Parliament in order to propose alternative provisions to address some of the broad concerns in the business response to the Draft Constitution.

The analysis of the Draft Constitution was primarily guided by principles of constitutionalism, human rights and democracy. Additionally, given the composition of the Team who all are practitioners in their various fields, the analysis was also informed by considerations of the current socio-economic situation in Swaziland so that in the end the analysis represents a grounded view of the nature of constitutional provisions that will serve the country well.

The approach in this exercise was multi-pronged, that is, it involved the drafting and dissemination of alternative clauses, lobbying, and advocacy.

This process involved the identification and amendment of sections and or clauses in the Draft Constitution that are at variance with the guiding principles. Thus from the Preamble to the Schedules, the Draft Constitution was analysed resulting in the production of a comprehensive set of alternative clauses.

This process also necessitated the identification of crucial omissions and the inclusion of ideal provisions in the relevant sections.

This process involved the hosting of breakfast meetings for both houses of Parliament. A total number of three such meetings were held.

Given the fact that some of the Team members were already involved in various activities relating to the Draft Constitution at organisational level, their on-going activities served to facilitate advocacy on issues relating to the debate of the Bill, for example, through the publication of media articles.

The Team made the following observations:

Whereas it is necessary to protect and promote the fundamental rights and freedoms of ALL in our Kingdom in terms of a constitution which binds the Legislature, the Executive, the Judiciary and the other Organs and Agencies of the Government;

The institution of the Monarch has since 1973 assumed a position of supremacy, the Executive arm of Government being the most powerful and able to dictate the nature and course of all state activities. This extensive power extended even to the lives of the people of Swaziland who have been subjected to the unmitigated power of the Monarch in the absence of a Bill of Rights that was excised out of the constitutional framework in 1973. It is for this reason that it becomes imperative for the Monarch to be singled out as another structure that should fall under the ambit of this Preamble. It would be a mistake to leave the office of the Monarch out from the purview of this Preamble and subsequently the purview of the constitution since it has such an overarching power which should be kept under check if the respect for human rights is to be promoted wholesomely and the tenets of democracy upheld.

Paragraph 6 of the Preamble should also include the Monarchy to ensure that it bound by the Constitution. Hence the paragraph should read: " Whereas it is necessary to protect and promote the fundamental rights and freedoms of ALL in our Kingdom in terms of the Constitution which binds the Monarchy, the Legislature, the Executive, the Judiciary and other Organs and Agencies of the Government."

Preamble - Paragraph 9

Whereas the Constitution in draft form was circulated to the nation in both official languages, was vetted by the people at tinkhundla and Sibaya meetings;

In this paragraph an impression is created that the Draft Constitution has been vetted by the Swazi people through the submissions they made at the tinkhundla and at the Sibaya. This is erroneous for two reasons. First, the numbers that the CDC Chairperson is relying on are not representative of the Swazi population, that is, 1000 people that made representations before the CDC at the various tinkhundla and 501 at the Sibaya. When these figures are considered against an estimated 500 000 adult Swazis who were eligible to engage the in process, the discrepancy becomes very obvious. Second, the Chairperson himself was heard lamenting both at the Sibaya and during the tinkhundla circuit, that the submissions put forward by the people clearly indicate that most people did not read the document and even if they did, they did not understand the issues.

It is recommended that paragraph 9 be struck out or alternatively it be amended to read as follows:

"Whereas the Constitution in draft form was circulated to the nation in both official languages."

Now, THEREFORE, the Swazi Nation assembled at Ludzidzini Royal Residence this 4^th day of October 2004, accepts the Constitution as the Supreme Law of the Land.

Implication

This paragraph erroneously suggests that the about 501 people who assembled at the Royal Kraal during the Sibaya adopted the Draft Constitution on behalf of the Swazi nation. This cannot be the case because the Sibaya was never constituted for adoption purposes. In addition, Parliament, according to the King was the body that was mandated to discuss and adopt the Constitution of the Kingdom of Swaziland Bill as the supreme law of the land.

It is recommended that paragraph 10 be struck off.

Any person who –

1. By himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or
2. aids and abets in any manner any person referred to in paragraph (a);

This section seeks to criminalize any form of engagement with the constitution and brings in an element of intimidation. Its inclusion is particularly poignant given the fact that Government is aware that certain social sectors have expressed concerns about the whole constitution making process, even going as far as the courts to seek redress. Therefore, this section in its ambiguity relating to "unlawfulness" will serve as a trap for those members of society who might wish to bring about reforms, even using the provisions of the Constitution itself.

It is recommended that Section 2 (3) be struck out.

Swaziland practices freedom of religion.

The wording of this section was unprocedurally altered after the Sibaya submissions, directly contradicting the expressed will of the people that Christianity be the official religion in Swaziland.

It is recommended that the wording as it appears in the Draft Constitution of the Kingdom of Swaziland be reverted to or section 4 in the Bill be struck off completely.

In the current use of the names King and Ngwenyama in the Bill, there arises confusion about the intended meaning of each name and the respective scope of operation of the two offices connected to the two names. Historically the Ngwenyama has been associated with issues of traditional government and King with issues of "modern" government. Through the Bill it would appear that these two roles are now being fused and this is likely to cause confusion, particularly in so far as the separation of powers is concerned because under Swazi tradition this concept does not exist yet for the constitution to operate effectively, the Head of State has to operate within the parameters set out therein. It seems the practice as it has been historically would serve the country well, with each office being accorded its appropriate designation and the divide between "traditional issues" and "modern issues" being maintained.

The King and iNgwenyama is a symbol of unity and the eternity of the Swazi nation.

Whilst it is appreciated that the King or Ngwenyama should serve as a symbol of unity for the Swazi nation, the inclusion of the word "eternity" seeks to create a supernatural being and the King is certainly not such a being.

It is recommended that "eternity" be removed from section 5(2) and it reads: "The King and Ngwenyama is a symbol of unity of the Swazi Nation."

The King and iNgwenyama is the-

1. Commander-in-Chief of the Defence Force;
2. Commissioner-in-Chief of the Police Service; and
3. Commissioner-in-Chief of the Correctional Services.

It is not clear what the significance of the position of the Head of State in these positions is - are these positions merely ceremonial? Such positioning also raises questions about the executive role of the Prime Minister as the head of the police service and the Minister of Justice as head of Correctional Services. Other questions that arise relate to remuneration of the Head of State – is he going more disbursements in excess of what he is entitled to under the Civil List?

Recommendation

There is need for the clarification of the rationale of the vesting of all these positions on the Head of State and the section amended accordingly.

These two sections provide for the immunity of the Queen Regent from civil proceedings in respect of which relief is claimed against the Queen Regent for anything done or omitted to be done by her in her private capacity and from taxation in respect of any remuneration she receives out of the Consolidated Fund, income she earns in her private capacity and all property owned by her in her private capacity, respectively.

Such immunities have the tendency to remove the Queen Regent out of the ambit of the constitution and thus pose serious threats to the supremacy of the constitution itself. In addition, as has been witnessed in the past years, private citizens operating under the patronage of either the King or Queen Regent have tended to fall under the shield of the immunities. So not only is there danger of abuse of power by the Queen Regent, but also by any other Swazi who can access this privilege. In addition, the immunity from taxation has the effect of narrowing the tax base thus placing the burden of taxation on the ones who might have fewer assets than those being afforded the immunity.

It is recommended that the immunities offered here to the Ndlovukazi in her private capacity be removed.

These two sections provide for the immunity of the Umntfwanekhosi Lomkhulu from civil proceedings in respect of which relief is claimed against the himself for anything done or omitted to be done by him in his private capacity and from taxation in respect of any remuneration he receives out of the Consolidated Fund, income he earns in his private capacity and all property owned by him in his private capacity, respectively.

Again, this section allows for the complete disregard of the principles of the constitution without accountability and sanction. The immunity to taxation on any income, even that accrues to the Umntfwanekhosi Lomkhulu in his private capacity, has the danger of narrowing the government revenue base as opposed to extending it. What makes the situation of the Umntfwanekhosi Lomkhulu more problematic is that his position is on an ad hoc basis thus making the determination of his immunities very problematic.

It is recommended that both sections be struck out.

Any remuneration prescribed under this section shall be a charge on and paid out of the Consolidated Fund and shall not be reduced during the continuance in office of King and iNgwenyama.

Like all countries, Swaziland might face hard economic times, which might require review of the King’s remuneration. It is therefore not advisable to put this clause in the constitution in light of the fact that this expenditure is not subject to public scrutiny yet it is derived from the Consolidated Fund.

It is recommended that section 10 (2) be amended to read as follows: "Any remuneration prescribed under this section shall be a charge on and paid out of the Consolidated Fund"

The King and iNgwenyama shall be immune from taxation in respect of his Civil List, all income accruing to him and all property owned by him in any private capacity.

The King already has and continues to acquire substantial landed and immovable investments throughout the country and if he is not taxed, this will mean less revenue for Government and this has the potential of landing Government into fiscal problems and such immunities may also contribute in a significant way to the crippling of the economy.

It is recommended that the King not enjoy immunity from taxation in his private capacity.

The King and iNgwenyama shall be immune from –

1. suit or legal process in any cause in respect of all things done or omitted to be done by him; and
2. being summoned to appear as a witness in any civil or criminal proceeding.

There appears to be a consistent pattern in the Bill to elevate the King above the constitution and section 12 is definitely a section that will serve to remove the King totally out of the reach of the law. Further, section 12, read together with sections 65, 66(4), 107, and 109 and sections 141, that vest Executive, Legislative and Judicial powers in the King and Section 166 (3) (f) that prohibits the investigation of human rights violations that may occur as a result of the exercise of any royal prerogative by the Crown, presents the real magnitude of the challenge presented here. In addition, the immunity offered to the King under section 12, negates whatever rights and freedoms Swazi citizens may have hoped to gain through the Bill of Rights because the King’s immunity and his vast powers are such that he is able to affect nearly every aspect of their lives and they will not be able to secure the protection of the courts.

It is recommended that the section be re-drafted such that the King and or iNgwenyama are accountable, both constitutionally and legally.

The King and iNgwenyama shall upon his installation as king and iNgwenyama take and subscribe an oath for the due execution of his office in accordance with Swazi law and custom.

The section creates the impression that the Head of State assumes the office of King and that of iNgwenyama simultaneously, which is not the case. Whilst it is accepted that the iNgwenyama assumes office in terms of Swazi law and custom, the same procedures are not applicable to his assumption of the role of kingship. The implied, non-formal assumption of the kingship role and the absence of an instrument designed for his assumption of such offices might present future challenges to the legality and or validity of his claim to kingship.

It is recommended that the oath of affirmation as it origionally appeared in the 2^nd schedule of the Draft Constitution which reads:

"I……………………….do swear (or solemnly affirm) that I, in the office of King of Swaziland will, under the Constitution of the Kingdom of Swaziland, preserve, protect and defend the said Constitution; that I will, as King, govern the people of Swaziland according to the said Constitution and other laws of Swaziland; and that I will, as King and as so far as lies within my power, cause law and justice to be administered in mercy to the people of Swaziland,"

be restored.

We refer to the entire section.

The problem with this section is that there seems to be a duplication of functions between the Liqoqo and Cabinet on the one hand and the Liqoqo, Ligunqa, Council of Chiefs and Sibaya on the other hand. It is likely that conflicts will arise in the exercise of their respective mandates by these structures coupled with the fact that the line of command between these structures is not clear at all.

It is recommended that this section which deals with the King’s Advisory Council should be struck out since Cabinet already fulfills the role of advising the King on issues of governance and also, there are numerous other structures that advise the King on matters relating to Swazi law and custom.

Recommendation: It is recommended that one general, limitation clause worded as follows be used, thus:

1. The nature of the right
2. The importance of the purpose of limitation
3. The relation between the limitation and its purpose; and
4. Less restrictive means to achieve the purpose.

Section 16 - Right To Life

We refer to the whole section.

Comment:

There appears to be some uncertainty as to how far the Bill is prepared to protect the right to life, this is evident, for instance, from the provision of section 16 (1), which provides that the right to life shall be deprived in the execution of a sentence whereas Section 39 (a), provides that the right to life, is a non-derogable right. These provisions are in conflict and need to be reconciled; as it cannot be that the right to life, which is declared as a non-derogable right, can be taken away in the execution of a sentence of a court. In addition, the derogations as contained in the section are too wide and open to abuse to the extent that they water down the right to life, nearly rendering it non-existent.

Recommendation

It is recommended that section16 (4) be struck out totally.

Section 16(5)(b)

"where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a mentally retarded female; or"

Comment

The section is not sensitive to the dignity of people with living with disability.

Recommendation

It is recommended that Section16 ( 5) (b) be amended to read:

"where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a woman living with mental disability"

Section 17 – Protection of right to personal liberty

We refer to the whole section.

Comment

This section offers inadequate protection of the right to personal liberty and whatever protection does exist is further eroded by the existing derogations.

Recommendation

It is recommended that the right be expressed positively, for example, "A person shall have a right to personal liberty," and all derogations be removed.

Section 18 - Protection from slavery and forced labour

Section 18(3) ""reasonable required as part of reasonable and normal parental, cultural, communal or other civic obligations, unless it is repugnant to the general principles of humanity".

Comment

This section contains terms that are too broad and general so that they make the incidence of forced labour a reality rather than a probability. For example, the words "normal parental", "cultural", "communal" and "other civic obligations" are too broad and open to abuse. In addition, these terms introduce a subjective approach to the determination of their compliance with international human rights standards, for example, what may be termed normal parental labour in one homestead may constitute forced labour under the general rubric of the ILO Conventions 29.

Recommendation

It is recommended that section 18 (3) (e) be struck out as it represents forced labour, as defined under the ILO Convention 29.

Section 20(2)

We refer to the entire section.

Comment

Section 20 (2) (a) contains terms that are too wide hence creating the existence of overarching derogations that negate entirely the protection from deprivation of property, for example, in the interest of "defence", "public safety", "public order", "public morality" or "public health".

Recommendation

It is recommended that all the qualifications and derogations be removed.

Section 21 - Equality Before The Law

We refer to the entire section.

Comment

This section does not include all the grounds of non-discrimination that are important if all sectors of Swazi society are to enjoy the full and equal protection it offers, for example, sex, marital status, language, conscience, ethnic or social origin, culture, and birth.

Recommendation

It is recommended that the grounds of sex, marital status, language, conscience, ethnic or social origin, culture, and birth be included in all relevant aspects of this section.

Section 22 - Right To A Fair Hearing

We refer to the entire section.

Comment

This section contains too much detail, some of which is already or can be dealt with in the country’s legislation.

Recommendation

It is recommended that:

< Sections 22 (3), (4), (5), (6), (7), (9), (10), (11), (12), (13), (14), (15) be struck out because they are already dealt with in existing, normal court procedure.

< Section 22(8) be struck out because it presupposes that a person can be pardoned before being tried. This section is open to abuse particularly because culprits can rush to seek royal pardon from the King, as per the provisions of section 65(4)(d), whilst the case is still pending before the courts.

< Section 13 should be struck out because it negates the right to a fair hearing and the presumption of innocence. It purports to shift the burden of proof in that it says the accused person is guilty until he/she proves herself innocent.

< Section 22(14) be struck out because it negates the right to a fair hearing. It is ambiguous and presupposes that people in lawful detention have no right to a fair hearing and raises the possibility of the detention of individuals without trial.

 

 

 

 

 

Section 23(2)

We refer to the entire section.

Comment

The existing derogations have the effect of negating the protection offered under section 23(1).

Recommendation

It is recommended that section 23(2) be struck out in its entirety.

Sections 24 (2) and 24 (4)

We refer to both sections.

Implication

Through sections 24(2) and 24(4) the Bill seeks to introduce derogations to the freedom of conscience or religion.

Recommendation:

It is recommended that section 24 (2) be amended by the deletion of the phrase at the beginning of section that reads, "except with the free consent of that person…" and that section 24 (4) be struck out.

Section 25 - Protection Of Freedom Of Expression

We refer to the whole section.

Comment

The wording of this section shows the general tendency in this Bill to create opportunity for the unwarranted derogation of vital rights and freedoms.

Recommendation:

It is recommended that:

< section 25 (3) be struck out in its entirety; and the section 25 in its entirety be reworded as follows:

< Section 25 (1) A person has a right of freedom of expression and opinion which include the

a)freedom of the press or the media

b) freedom to receive ideas and information

c) freedom of artistic creativity

d) academic freedom

e) freedom of scientific research

25 (2) The right to freedom expression does not include;

1. propaganda for war
2. incitement of imminent violence
3. advocacy of hatred that is based on race, sex, ethnicity, gender, religion.

We refer to the entire section.

We note that there is the qualification of assembly in this respect to "peaceful assembly" which begs the question of the appropriate test to be used in determining the peacefulness. This once more imports a subjective standard in the determination of what can be termed "peaceful". Moreover, it would have been ideal to allow the respective rights enumerated under section 26 to exist as individual rights rather than clubbing them together, that is, right to freedom of association and the right, peaceful and unarmed, to assemble, demonstrate, to picket and to present petitions."

Further, whilst the giving of the right to freedom of association might imply that Swazi citizens have the right to form political parties, this implied right is proved to be non-existent by the provisions of section 80 that prescribe individual merit as a basis for election or appointment to public office. In this way therefore, the right to freedom of association is not awarded to Swazi citizens to its fullest extent.

Corollary to the above, the Bill does not expressly grant political rights to Swazi citizens. This omission is particularly critical because political rights are one of the most contentious issues between Swazi citizens and their Government currently. Political rights are one of the areas that need to be effectively addressed if the new constitutional dispensation is to bring peaceful development in Swaziland.

It is recommended that rights to freedom of assembly and association be provided for separately for clarity and assurance and a new section to cover political rights be included. In this regard, section 26 should be re-written as follows:

Section 26 Freedom of Association: "Every person has a right to freedom of association."

Section 27 Assemble, demonstration, picket and petition: "Everyone has the right, peaceful and unarmed, to assemble, demonstrate, to picket and to present petitions"; and a new section on political rights be added thus:

Every citizen is free to make political choices, which include the right

Subsection (1)

1. to form a political party
2. to participate in the activities of, or recruit members for, a political party
3. to campaign for a political party or cause

Subsection (2)

Every citizen has the right to free, fair, and regular elections for any legislative body established in terms of the constitution

Subsection (3)

Every adult citizen has the right:

1. to vote in elections for any legislative body established in terms of the constitution, and to do so in secret; and
2. to stand for public office and, if elected, to hold office.

We refer to the whole section.

Section 27(1) does not reflect all the facets that are pertinent for the proper establishment of protection of freedom of movement and residence because it excludes the right for people to have a passport to facilitate complete freedom of movement. Further, the rest of the derogations contained in the other subsections serve to diminish instead of enhancing the freedom that section 27 seeks to vest.

It is recommended that section 27 be re-written as follows:

Section 27 (1): "Every person shall have a right to freedom of movement, the right to reside in any part of Swaziland, the right to enter or leave Swaziland, immunity from expulsion from Swaziland and a right to have a passport", and

Sections 27(2) through 27(6) be struck out.

It is noted that the provisions here fraught with ambiguity and more poignantly, fall short of the requirements of Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), that seeks to give both men and women clear and equal rights in marriage and related issues.

It is recommended as follows:

Section 28(1) should read: "Men and women shall have a right to marry and found a family", and the words "marriageable age" be struck out.

Section 28(2) to read: "Men and women shall have a right to freely choose a spouse and to enter into marriage only with their free and full consent"

Sections 28(3) and 28(5) be deleted.

Section 28(6) be amended as follows: "The State shall provide facilities and opportunities necessary to enhance the welfare of the needy and the elderly."

Most of the abuse and discrimination of Swazi women stems from cultural practices and therefore their omission from the variables that are listed in section 29(1) will still leave Swazi women vulnerable to discrimination and alienation founded on cultural practices. This probability is confirmed as a real possibility by the provisions of section 29(3) that puts the burden on Swazi women to say yes or no to any customs that may be unacceptable. In addition, the inconclusive provision for affirmative action under section 29(2) further weakens the protection that section 29 purports to give to Swazi women.

It is recommended that section 29 be re-written as follows:

Section 29(1): "Women have the right to equal treatment with men and that right shall include equal opportunities in political, economic, social and cultural activities."

Section 29(2): The words "subject to the availability of resources..." be removed and the section read: "The Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realize their full potential and advancement."

Section 29(3): "Any custom that is contrary to the requirements/provisions of subsection (1) shall become null and void on the coming into force of the constitution."

It is noted that there are crucial omissions and derogations here that are particularly significant given the possibility of abuse that is introduced through the provisions of other sections, for example, issues of citizenship and nationality raised under Chapter V.

It is recommended that section 30 be amended as follows:

Section 30 (1): "Every child has a right to a name and nationality from birth."

Section 30(2): "Every child has the right to be protected from engaging in work, which by its nature or circumstances in which it is carried out, it is likely to harm the health, safety, health, education, morals or development of children."

Section 30(3): (section 30(2)) be amended by the removal of the words "…and moderate chastisement for purposes of correction" and thus read as section 303): "Every child has a right not to be subjected to abuse torture or other cruel, inhuman and degrading treatment or punishment ."

Section 30(4) be deleted.

Section 30(6) be amended as follows: "Every Swazi child shall within three years of the commencement of this Constitution have the right to free education in public schools up to the end of high school". (This amendment is particularly important for Swazi society because of the unprecedented problem of OVCs the country is faced with.

Section 30(7) be amended as follows: " The State shall take reasonable legislative and other measures within its available resources, to achieve the progressive realization of each of these rights".

It is recommended that the following amendments be effected in order to enhance the protection offered hereunder:

Section 31(1): "Persons with disabilities have a right to respect and human dignity".

Section 31(2): "The State shall take reasonable legislative and other measures within its available resources, to achieve the progressive realization of each of these rights".

It is recommended that the following amendments be effected in order to enhance the protection offered hereunder:

Section 32 (1) read: "Children born in or out of wedlock shall enjoy the same protection and rights", and,

the original section 32(1) becomes subsection 30(2).

Whilst noting that this section demonstrates an admirable protection of worker’s rights, it noted that additions of the broad set of rights as are enshrined in the ILO Conventions that Swaziland has

ratified would enhance this section even further.

It is recommended that section 33 be restructured as follows:

Section 33(1): "Workers, without distinction whatsoever, have the right to establish and, subject not only to the rules of the organisation concerned, to join organizations of their choosing for furthering and defending their interests without previous authorization".

Section 33(2): "However, the extent to which the guarantees provided for in the Convention apply to the armed forces and police will be determined by national laws or regulations".

Section 33(3): "Workers’ organizations have the right to establish and join federations and confederations. They also have the right, in the same way as federations and confederations, to affiliate with international organizations of workers and employers".

Section 33(4): "Further more, these organizations, federations and confederations have the right to:

Section 33(5): "The public authorities have to refrain from any interference which would restrict this right or impede the lawful exercise, thereof".

Section 33(6): "The acquisition of legal personality by workers’ organizations, federations and confederations may not be made subject to conditions of such a character as to restrict the rights enumerated above. Furthermore, they may not be dissolved or suspended by administrative authority".

Section 33(7): "In exercising the rights provided for the convention, workers and their organizations have to respect the law of the land. However, the law of the land must not be such, normally it be so applied as to impair the guarantees provided for in the Convention".

Section 33(8): "Workers must be protected against acts of anti-union discrimination, and particularly acts calculated to:

Section 33(9): "Workers’ organizations must enjoy adequate protection against any acts of interference by each other, and particularly acts which are designed to promote the domination, financing or control of workers’ organisations by employers or employers’ organizations".

Section 33(10): "Measures appropriate to national conditions have to be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between, on the one hand employers, and on the other hand employers’ and workers’ organizations with a view to regulation of terms and conditions of employment by means of collective agreements".

It is noted that whilst the Bill provides for worker’s rights it is silent on the rights of employers.

It is recommended that a new section, section 34 be added as follows:

Section 34(1): every employer has the right;

1. to form and join an employers’ organisation; and to participate in the activities and programmes of an employer’s organisation
2. to determine its own administration, programmes and activities
3. to organize
4. to bargain collectively; and
5. to form and join a federation.

We refer to section 35(1)

It would seem that section 35(1) seeks to override the individual’s right to dispose of their property as they deem it fit.

It is recommended that section 35(1) be struck out completely.

We refer to the entire section.

This section does not sufficiently provide for the broad-based enforcement of rights in that it excludes certain categories from its ambit.

It is recommended that section 36 be re-written as follows:

Section 36: Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are;

We refer to the entire section.

Section 37 seeks to create a situation wherein the King can make law by proclamation contrary to the doctrine of separation of powers that recognises Parliament as the only law making structure. In addition, section 37 does not clearly and unequivocally specify the instances when a state of emergency should be declared and thus creates room for abuse and a recurrence of situations such as the unlawful abrogation of the Constitution of Swaziland of 1968 in 1973.

The following amendments are recommended:

Section 37(1): "A state of emergency may be declared only in terms of "an Act of Parliament passed by a vote of least two thirds majority of all the members of the two Houses".

Section 37(2): "The provisions of subsection (1) shall not apply and an Act of Parliament shall…"

Section 37 (2) (b): The term "natural disaster" needs to be clearly defined.

Sections 37 (d), 37(3), 37(4), 37(8), 37(9), 37(10) be struck out entirely.

A new section be added:

We refer to the entire section.

It is noted that the provisions of sections 37 and 38 are not aligned with the requirements of international human rights instruments and therefore create room for the wanton abrogation of internationally acceptable and established standards that should govern such situations.

It is recommended that additional subsections be introduced as sections 38 (3) and 38(4) as follows:

Section 38(3): "A law that is passed during a period of public emergency must be consistent with the Kingdom’s obligations under international law applicable to the declaration of a state of emergency."

Section 38(4): " No Act of Parliament that authorises a declaration of a state of emergency and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise –

We refer to the entire section.

The provisions of section 40(1) are in conflict with the provisions of section 39 that lists the right to a fair trial as a non-derogable right.

It is recommended that section 40 (1) be struck out completely

The provisions of section 40(2) contradict the right to equality, freedom of expression and opinion and freedom of peaceful assembly and association.

It is recommended that section 40 (2) be struck out totally.

The provisions of section 40(3) contradict the right to life, protection from slavery and forced labour and protection from inhumane or degrading treatment.

It is recommended that section 40 (3) be struck out totally.

The provisions of section 40(4) seems to imply the legitimization of torture against certain classes of people contrary to international obligations that Swaziland has to defer to, such as, the

Convention Against Torture (CAT).

It is recommended that section 40 (4) be struck out totally.

The relevance of section 40(5) is not clearly demonstrated.

It is recommended that section 40 (5) be struck out totally.

The provisions of section 40(6) are improperly placed here – they need to be part of section 262, the Interpretation section.

The entire contents of Section 40 (6) must be relocated to section 262.

We refer to the whole section.

This section is problematic because it seeks to forcible divest individuals of their citizenship forcible

It is recommended that section 43 (3) be struck out totally.

We refer to the whole section.

In our view the provisions of this sections are contradictory and unnecessary because some are already covered under section 43 (1) and the rest of the detail is better dealt with through national legislation and not the constitution. Section 44 (5) particularly problematic because it contradicts the provisions of section 43 (1) in that it seeks to take away the right of citizenship from children who become citizens by descent and subjects children to uncertainty.

It is recommended that sections 44(1) through to 44(5) be struck out totally.

We refer to the whole section.

The provisions of this section are discriminatory as they seek to entrench the notion that citizenship may only be passed through the agnatic lines.

It is recommended that sections 45(1) and 45(2) be amended as follows:

S45 (1): " A woman/man who is not a citizen of Swaziland…"

S45 (2): "A woman/man who lodges a declaration…"

We refer to the whole section.

The provisions of section 46(2) appear to make the acquisition of citizenship by non-Swazis easier than for some who are legally Swazi, for example, children born of single, Swazi mothers with foreign men (refer to section 44(4)). In addition, this section is problematic as it opens opportunities for people to claim citizenship for convenience, for example, business people who have interests in Swaziland may apply for citizenship, thus confusing citizenship with permanent residence.

Section 46 (2) (a) (i) should be amended to read "…of at least five years…" instead of "twelve months".

Section 46 (2) (a)(ii) should be struck out in its entirety.

S46 (6) should be relocated to the Interpretation section, section 262.

This provision would be better dealt with under ordinary legislation, particularly because unborn children are already vested with rights under the common law.

It is recommended that section 47 be struck out completely.

The term public good is too wide. It opens floodgates for arbitrarily threatening people and denying them of their citizenship. People should rather be subjected to the normal cause of the law instead of being threatened that they shall lose citizenship.

We refer to the whole section.

The provisions of section 50(2) are contrary to the principle of equality as it excludes men from its ambit.

It is recommended that section 50 (2) be amended to read as follows: "A person who acquired…" instead of "a woman".

The provisions of section 50(4) have the potential of depriving individuals of their right to a fair hearing.

It is recommended that section 50 (4) be amended to read: "The board shall investigate the case and hear the person or the legal representative of that person."

If a citizen of Swaziland who has attained the age of majority, or being a woman is or is about to be married, or is about to become a citizen of another country and for that reason desires to renounce his or her citizenship of Swaziland, that citizen may do so by lodging with the Board a declaration of renunciation of that citizenship and upon lodgment of the declaration or, if not then a citizen of that other country, upon becoming that citizen, he or she shall cease to be a citizen of Swaziland.

This provision, by singling out women, contradicts the provisions of section 21 that confers equality before the law. Accordingly, this section presupposes that citizenship shall be passed only through male lines, contrary to the equality clause.

Section 51 should be amended and the words "…or being a woman…" removed so that it reads:

Section 55 (3) "The Board may revoke a certificate of citizenship for good cause".

This provision creates opportunity for the arbitrary revocation of a certificate of citizenship by the Board and thus introduces a degree of uncertainty on the part of affected individuals.

It is recommended that section 55(3) be amended as follows:

Section 57 (3) "The provisions of sections 58 to 64 inclusive are not enforceable in any court or tribunal".

By making the directive principles of state policy and duties of citizens non-justiciable, this section greatly weakens the whole Constitution and further contradicts international law that recognises these principles and duties as crucial for sound constitutions and governance systems.

It is recommended that section 57 (3) be amended to read as follows: " The provisions of sections 58 – 64 inclusive, are enforceable in any court or tribunal and the state must take reasonable legislative and other measures within available resources, to achieve the progressive realization of each of these rights."

"Subject to the provision s of this constitution, the King may exercise that executive authority either directly or through cabinet or a Minister".

The provision as contained in section 65(3) allows the King to directly exercise the Executive Powers, disregarding the Prime Minister and Cabinet. This has the potential of crippling Cabinet and making the King responsible for the day to day running of government.

It is recommended that section 65 (3) be amended to read: " Subject to the provision of the constitution, the King shall exercise the Executive authority through Cabinet or a Minister ".

The King in his capacity as the Head of State has authority, in accordance with this constitution or any other law, among other things to –

(b) summon and dissolve Parliament;

(d) issue pardons, reprieves or commute sentences;

(e) declare a state of emergency

The provisions of section 65(4) (b), by granting the King such powers, subject Parliament to the supreme power of the Executive thus affecting the independence of Parliament and its ability to carry out its functions without fear or favour.

It is recommended that section 65 (4) (b) be amended to read: "summon parliament for extraordinary seating".

It is also recommended that the power to dissolve parliament be given to Parliament, with the provision Parliament shall dissolve after a resolution to so dissolve has been reached after following the specified procedure.

The provisions of Section 65(4)(d) have the potential of compromising the rule of law because the power to issue pardons by the King has been abused in the past, even to the point of avoiding court processes.

This section needs to be amended, clearly defining the meaning and scope of royal pardon.

Implication

The provisions of section 65(4)(e) gives the King law discretionary making power, a situation that not only impinges on the legislative authority of Parliament, but also opens up opportunity for the unilateral repeal of not only key legislation but also the constitution.

It is recommended that section 65 (4) (e) be struck out completely.

Section 66 (1) In the exercise of the functions under this constitution or any other law, the King shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except where –

1. any function under this section is expressed (in whatever terms) to be exercisable by him acting in his discretion or on the advice or the recommendation of or after consultation with any person or authority;
2. any function conferred by any other law is expressed (in whatever terms) to be exercisable by him in his discretion; and
3. the provisions of section 159 (5), 160 (5), 176 (4) or paragraph 1 (1) of the First Schedule apply.

Subsection (1) (a) is problematic since it gives the King power to consult with any other structures or persons other than Cabinet thus introducing uncertainty and conflict of roles and responsibilities. In addition, sections 65(1) (b) and 65(1)(c) give too much discretion to the King thus introducing uncertainty as to the exercise of executive power by the King or even the extent that Cabinet has influence over the exercise of such power by the King.

It is recommended that section 66 (1) be amended as follows: "In the exercise of the functions under this constitution or any other law, the King shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet".

It is also recommended that sections 66(1)(a) through to 66(1)(c) be struck out completely.

Where in terms of subsection (1), the Cabinet or a Minister gives advice to the King, the King may refer back that advice for further consideration by the Cabinet and Cabinet shall meet within ten days to reconsider that advice as required by the King.

By not stating how the final decision will be reached in such instances, this section impliedly gives the King power to veto Cabinet decisions. Such wide discretion is even contrary to the dictates of Swazi Law and Custom that require the King to defer to the advise of any advisory structure where there is a conflict of views.

It is recommended that section 66 (2) be amended to read: " Where, in terms of subsection (1) the Cabinet or a minister gives advice to the King, the King may refer that advice for further consideration by the cabinet, but if after such reconsideration Cabinet resubmits the same advice, the same shall stand".

Where the King is required to exercise any function on the advice or recommendation of any person or authority, he shall exercise that function on that advice or recommendation, save that the King may before acting on the advice or recommendation, in his discretion, once refer back that advice or recommendation in whole or in part for reconsideration within ten days by the person or authority.

This provision once again introduces the possibility of a multiplicity of advisory structures with which the King must work, yet again bringing up problems of uncertainty and abrogation of the rule of law.

It is recommended that section 66 (3) be struck out in its entirety.

Where the king is required by this constitution to exercise any function after consultation with any other person or authority, the king may or may not exercise that function following that consultation.

The provision gives the King far too much discretion to decide on his own. This provision goes against the requirements of constitutionalism that requires that state power be clearly defined and subjected to definite limitations. Further, phrased in this way, this section points to future rule of law problems and malfunctioning of other state structures where the Executive arm of Government is granted unchecked, supreme powers.

It is recommended that section 66 (4) be amended to read: "Where the King is required by this constitution to exercise any function after consultation with any person or authority, the King must exercise that function following that consultation".

The Prime Minister shall be the chairman of the Cabinet and leader of Government business in Parliament.

Through its limitation of the executive power of the Prime Minister to being leader of Government business in Parliament, this section negatively impacts the ability of the Prime Minister to function as head of government.

It is recommended that section 67(2) be amended to read: "The Prime Minister shall be the chairperson of the Cabinet and leader of Government".

Section 68 (1)

The King shall appoint the Prime Minister from among members of the House acting on recommendation of the King’s Advisory Council.

The appointment of the Prime Minister in this fashion does not take into cognisance the fact that a Prime Minister has to command national support hence if he/she is elected, he/she must come from Parliament having been voted in by a majority.

It is recommended that section 68 (1) should be amended to read: "Once they are fully constituted, the members of the House of Assembly shall form an Electoral College to elect the Prime Minister from amongst their numbers."

Section 69 (1)

The office of the Prime Minister shall become vacant where –

1. the King revokes the appointment for incompetence;

5. after a resolution of no confidence in the Prime Minister is passed by at least two thirds majority of all members of the House;
6. the Prime minister is removed from office for misbehavior or inability to perform the functions of that office Whether arising from infirmity of body or mind);

Sections 69(1)(a) through to 69(1)(e) will cease to be relevant after the amendment of are no longer relevant, if the Prime Minister is to be elected as suggested in Section 68(1).

Section 69(1)(f) - The term "misbehavior" as contained in this section is too broad and is likely to be interpreted subjectively, which in essence means that the Prime Minister shall be removed at the discretion of the appointing authority.

It is recommended that:

< Section 69(1)(a) be struck off.

An Inkhundla represented by the bucopho has a corporate status and may perform acts as bodies corporate may perform.

This section introduces some confusion as to the intended nature and function of the Bucopho because there currently is no link between traditional structures of government and local government and the traditional structures are no way designed to function as local government at their level.

It is recommended that section 82 (4) should be struck out completely.

Subject to the provisions of this constitution, the people of Swaziland have aright to be heard through and represented by their own freely chosen representatives in the government of the country.

It is difficult to see how the people of Swaziland will be able to enjoy this right because the Bill does not in its entirety, facilitate the transformation of Swaziland into an open and democratic society, for example, section 80, which prescribes individual merit as a basis for election or appointment into public office.

It is recommended that section 85 (1) be amended to reads: "Subject to the provisions of this constitution and in conformity with the tenets/factors of democracy, the people of Swaziland have a right to be heard through and represented by their own freely chosen representatives in the government of the country."

For purposes of this section, the House shall form itself into an electoral college and elect not more than four women on a regional basis to the House in accordance with the provisions of Section 96 (3).

Subsection 87 (2) suggests that women should be elected on a regional basis. Whilst this method has some merit, it does not fully facilitate the representation of Swazi women from varying

backgrounds.

It is recommended that section 87 (2) be amended to read: "For purposes of this section, the House shall form itself into an electoral college and elect not more than ten women on a regional basis representing the various classes of women to the House."

The members elected on a regional basis, under subsection (1) (c), shall continue to be so elected, whenever the provisions of section 87 (1) are true, in terms of the following paragraphs –

1. the list of nominated candidates shall be published in at least two local newspapers and the electronic media at least three consecutive days and the public may make comments on the suitability, representativeness or otherwise of the candidates;
2. after ten days from the date of the last publication the House shall meet to vote for on woman from each of the regions, taking consideration any relevant in-put in terms of paragraph (b)

Section 96(3) provides for the public screening of eligible women nominees to be elected according to the provisions of section 87. This provision is unacceptable because it may subject the nominees to public ridicule, as the public may make unfounded and unpalatable remarks on these candidates and it is also discriminatory because current or past male Members of Parliament who are nominated into office have never and are not subjected to the same treatment.

It is recommended that section 96(3) be struck out completely.

107. Subject to the provisions of this Constitution –

(a) the supreme legislative authority of Swaziland vests in King-in-Parliament;

This section has the effect of vesting legislative authority on the Executive branch of government instead of Parliament. This is constitutionally incorrect because legislative authority needs to vest on Parliament so that it can properly execute its functions. These functions include having oversight on the Executive, that is, to scrutinise the policies, activities and legislation of the Executive, hold the Executive accountable for its actions; make laws in the parliament and act as a forum for democratic participation by all members of the civic society. Thus where legislative authority is vested in the Executive, the powers of Parliament will be nullified rendering it ineffective in carrying out its functions.

It is recommended that section 107 be amended to read:

Subject to the provisions of this Constitution –

(a) the supreme legislative authority of Swaziland vests in Parliament.

(b) Parliament may make laws for the peace, order and good government of Swaziland.

Section 109(3)

Where a bill that has been duly passed is presented to the King for assent the King shall signify that he assents or withholds assent –

1. in the case of an appropriation bill, or bill for a law to amend this Constitution, within ten days;
2. in the case of any other bill, within twenty-one days.

This section has the effect of vesting legislative authority on the Executive branch of government as opposed to the legislature. It is Parliament’s primary function as a body representing the people to make laws that are representative of the majority of interests as opposed to laws that reflect the interests of the Executive; a situation that would be a result of the provisions of the section as it currently stands.

It is recommended that section 109(3) be amended to read:

We refer to this section in its entirety.

This section again, has the effect of vesting legislative authority in the Executive and is unacceptable for the same reasons as stated above.

It is recommended that section 110 be amended as follows:

A bill may be introduced in either chamber of Parliament except that –

1. a money bill shall not be introduced in the Senate,
2. a bill affecting matters in terms of section 116 shall not be introduced in the House.

This section has the effect of abrogating the legislative authority of the House of Assembly, an act that is contrary to both constitutional and democratic practices.

It is recommended that section 111 be struck out in its entirety.

We refer to this section in its entirety.

Again, this section has the effect of abrogating the legislative authority of the House of Assembly, an act that is contrary to both constitutional and democratic practices. In addition, this section has the effect of excluding the Swazi people who are represented by the House of Assembly from the law making process, particularly in determining issues of Swazi law and custom that are so central to their lives.

It is recommended that section 116 be struck out in its entirety.

Section 118(2)

Where the bill referred to in subsection (1) –

1. is passed within sixty days of the message, the bill shall again be presented to the King for assent; or
2. it is not passed as provided in paragraph (a), the bill shall lapse.

Implication of section 118

In a similar fashion, this section has the effect of abrogating the legislative authority of the House of Assembly, an act that is contrary to both constitutional and democratic practices.

Recommendation

It is recommended that section 118(2) (a) be amended to read:

"Not withstanding section 109 (1), where the King refuses to assent to a Bill which has been reconsidered, the Speaker shall upon such refusal, if the Bill was so passed with the support of at least two thirds of all the members of Parliament, cause a copy of the Bill to be laid before Parliament and the Bill shall become law without the assent of the King".

Section 120 - Retroactive legislation

We refer to this section in its entirety.

Implication

This section seeks to vest upon Parliament powers it cannot have both constitutionally and democratically.

Recommendation

It is recommended that section 120 be struck out in its entirety

Section 121 - Interpretation

Section 121 (1) (c)

In this part, "money bill" means a bill that contains only provisions dealing with –

3. the grant of money to the King or to any other person or authority or the variation or revocation of that grant;

It is not clear what is meant by "grant" and the distinction and justification of the provision under this section as opposed to the King’s Civil List.

It is recommended that section 121(1) (c) be struck out completely.

We refer to this section in its entirety.

Implication

This section has the effect of abrogating the legislative authority of the House of Assembly, an act that is contrary to both constitutional and democratic practices. In addition, it facilitates the domination of Parliament by the Executive and thus seriously impinges on the sovereignty of the Legislature.

It is recommended that section 135 (1) be struck out in its entirety and be replaced with:

The King must dissolve Parliament if

1. Parliament has adopted a resolution to dissolve, supported by two-thirds majority of a joint sitting of both houses.

We refer to this section in its entirety.

It appears as if section 136 seeks to make provision for the making of laws whenever the Executive branch desires, a situation that is not different to the making of laws by decree or proclamation.

It is recommended that section 136 be struck out in its entirety.

Except as may otherwise be provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety, public order or public policy, the proceedings of every court shall be held in public.

This section seeks to bring in ordinary procedural issues that are non constitutional into the Constitution. In addition, the courts of Swaziland already have this as an established procedure.

Recommendation

It is recommended that section 140 (4) be struck out completely.

The judicial power of Swaziland vests in the judiciary. Accordingly, an organ or agency of the Crown shall not have or be conferred with final judicial power.

This section is problematic because it seeks to vests judicial authority, no matter the degree, on other structures outside of the judiciary. This is both unconstitutional and undemocratic. In addition, such an arrangement will engender rule of law problems, particularly because section 141 is silent about the enforceability of the decisions issued by the courts.

It is recommended section 141(1) be amended to read:

"The judicial power of Swaziland vests in the judiciary";

and a new section be added thus:

We refer to the whole section.

This section generally lacks specific assurances necessary to safeguard the independence of the judiciary.

It is recommended that section 142 be amended as follows:

We refer to the whole section.

The current oath does not enjoin the judiciary to be loyal to the Swazi people, an omission that is significant given the fact that the judiciary is the guarantors of any human rights and freedoms the people of Swaziland may be entitled to.

It is recommended that the judges’ oath should read as follows:

We refer to section 147(2) in its entirety.

Certain crucial matters regarding the jurisdiction of the Supreme Court are missing.

It is recommended that section 147 be amended by the addition of two new sections, thus:

Section 150(1)

Subject to the provisions of subsections (2) and (3) a single Justice of the Supreme Court may exercise power vested in the Supreme Court not involving the determination of the cause or matter before the Supreme Court.

This section provides for an unprecedented departure from the tenets of administration of justice by making provision for the constitution of the court by a single justice. This is likely to compromise the ability of a court constituted in such a manner to uphold the fundamental rights and freedoms of individuals.

It is recommended that section 150 be struck out in its entirety.

Section 151(1)

There shall be a High Court of Judicature for Swaziland consisting of -

1. the Chief Justice, ex officio

3. such other justices of the Superior Court of judicature as the Chief Justice may, in writing assign to sit as High Court justices for any case

Section 151(1)(a) compromises the Chief Justice’s impartiality as presiding officer of the Supreme Court because in this capacity he will have to preside over matters he already has presided over at the High Court.

Section 151(1)(c) in a similar fashion, also compromises the impartiality of such justices of the Supreme Court.

It is recommended that:

< Section 151(1)(a): the Judge President should replace the Chief Justice.

< Section 151(1)(c) be struck out.

Section 151 (4)

The Chief Justice shall always preside whenever sitting as a Justice of the High Court.

This provision contravenes the concept of ex officio as espoused by Section 151 (a), which in its purest sense is an advisory position. Constructed in this way, it provides for a situation where the Chief Justice shall preside at both the High Court and the Supreme Court, which is unacceptable.

It is recommended that Section 151(4) be struck out.

Section 152 (2)

Without derogating from the generality of subsection (1) the High Court has Jurisdiction -

1. to enforce the fundamental human rights and freedoms guaranteed by this constitution; and
2. to hear and determine any matter of a constitutional nature.

This provision is problematic because it is anticipated that the High Court shall constitute itself into a Constitutional Court. The question is when will the Court constitute itself as such, in light of the fact that it tries matters on a daily basis. Ordinarily a Constitutional Court makes the final ruling on constitutional issues, however in terms of this provision, decisions of the High Court in such matters shall be subject to an appeal in the Supreme Court. Therefore this provision has the effect of relegating constitutional matters.

It is recommended that the power to enforce fundamental Human Rights and Freedoms and also to hear constitutional matters should be vested in the Supreme Court because it more time, since it sits periodically unlike the High Court. In this regard therefore, the contents of section 152(2) should be incorporated under section 147 to become subsection (2) (c) and (d), thereof.

The High Court has no power, in a trial for the offence of treason, to convict any person for an offence other than treason.

This provision serves to limit the original jurisdiction of the High Court and compromises the requirements of the right to a fair trial.

It is recommended that section 152(4) be struck out completely.

Section 156 (1)

Subject to the provisions of this Constitution, a Justice of the Superior Court of Judicature holds office during good behaviour.

This provision is problematic because it is too broad and may open floodgates for a situation where "good behaviour" may be decided subjectively.

It is recommended that section 156(1) be struck out completely.

Section 158 (1)

A person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years of the commencement of this constitution.

This provision introduces an unnecessary element of discrimination.

It recommended that section 158(1) be amended to read: "A Judge of the Superior Court may be appointed on contract."

Section 160 (2)

The Commission shall consist of the following:

Sections 160(2)(b) and 160(2)(d) allow for too much discretion in the appointment of officers here, a situation that is likely to engender appointment by favour and not merit.

A member appointed in terms of subsection (2) (b) or (d), (where a member appointed under paragraph (d) does not hold the position of judge of a superior court) shall be removed from office by the King where the question of removal has been referred to the tribunal appointed in terms of subsection (6) and the tribunal has recommended that the member be removed from office –

(b) for misbehaviour.

The term misbehaviour as contained in this subsection is ambiguous and may cause the arbitrary removal of persons from office.

It is recommended that section 160(5)(b) be amended as follows: replace "misbehaviour" with "behaviour not consistent with his/her duties’ or "misconduct."

Section 161 (1) (d)

Subject to any other powers or general functions conferred on a service commission in terms of the constitution, the judicial service commission shall among other things, perform the following functions -

(d) receive and process recommendations and complaints concerning the judiciary.

This provision seeks to give decision-making power to the Judicial Service Commission when it should function as an advisory.

It is recommended that section 161(1)(d) be struck out.

It is inappropriate for the Director of Public Prosecutions and Human Right Commission to be established and regulated in the same chapter because the roles of these institutions are distinct and while the objectives of both are linked to justice, they are essentially separate.

It is recommended that Chapter X be divided in two separate chapters.

There shall be a Director of Public Prosecutions whose office shall be a public office.

This provision does not expressly state that the Director of Public Prosecutions shall conduct his/her duties according to the requirements of the constitution.

It is recommended that section 163(1) be amended to read: "There shall be a Director of Public Prosecutions whose office shall be a public office and shall be subject to the provisions of this constitution".

In the exercise of the powers conferred under this Chapter, the Director shall -

(b) be independent and not be subject to the direction or control of any authority.

This provision does not stipulate that the Director of Public Prosecution is constitutionally independent in the performance of his/her duties.

It is recommended that section 163(6)(b) be amended to read: "be independent in the performance of his/ her duties and not be subject to the direction or control of any authority."

The Commission shall consist of –

1. a Commissioner for Human Rights & Public Administration; and
2. at least two Deputy Commissioners for Human Rights and Public Administration as may be necessary for the effective discharge of the functions of the Commission.

The numbers of positions created for this body are too few when the anticipated volume of work they will have to do is considered and as such, the present arrangement may serve to limit the effectiveness of the Commission because it may be overwhelmed by the amount of work brought before it.

It is recommended that section 164(2) be amended to read: "The Commission shall consist of –

1. a chairperson;
2. at least four Commissioners for Human Rights and Public Administration as may be necessary for the effective discharge of the functions of the Commission".

Section 165 - Functions of the Commission

Section 165 (1)

The Commission shall perform the following functions-

3. investigate complaints concerning the functioning of any public service commission, administrative organs of the government, the armed forces in so far as the complaints relate to the failure to achieve acceptable delivery of service or equitable access by all in the recruitment to those services or fair administration by those services.
4. Take appropriate action for the remedying, correction or reversal of instances specified in paragraphs (a), (b) and (c) through such means as are fair and effective, including –

The qualification in subsection (1) (c) as to when the Commission shall investigate complaints against armed forces is so broad that it exempts the armed forces from being investigated.

Subsection (1) (d) (ii) has the effect of compromising the victim’s case in that the commission is empowered to facilitate a compromise between the parties, which in essence opens gates for pressure to be exerted on the victim in order to drop his/her case.

It is recommended that section 165(1) be amended as follows:

The Commission may investigate any matter referred to in subsection (1) in any of the following circumstances -

1. where a complaint is duly made to the Commission by any person alleging that the complainant has sustained an injustice as a result of a fault in administration;

This provision as it stands does not clearly define whether "any person" includes incidences of class action.

It is recommended that Section 165 (2)(a) be amended as follows: "where a complaint is duly made to the Commission by;

i) anyone acting on their own interest,

(iii) anyone acting as a member of, or in the interest of, a group or class of persons,

(iv) anyone acting in the public interest and

1. an association acting in the interest of members

The numbering in section 166 (3) is faulty and needs to be corrected.

Section 166 (3)

The Commission shall not investigate-

1. a matter involving the relations or dealings between the government and ay other government or an international organisation; or
2. a matter relating to the exercise of a royal prerogative by the crown.

The provisions of sections 166(3)(e) and 166(3)(f) have the effect of limiting and therefore crippling the functions of the Commission. In addition, through the provisions of section 166(3)(f) that seek to position the King and any of his agents above the law will facilitate the unbridled infringement of individual human rights and freedoms.

It is recommended that sections 166(3)(e) and 166(3)(f) be struck out completely.

Section 168 (c) provides that in determining whether to initiate, continue or discontinue an investigation, the commissioner shall exercise discretion and in particular and without prejudice to the generality of that discretion, the commissioner may refer to initiate or continue an investigation where it appears that –

1. the complainant has not a sufficient interest in the subject matter of the complaint, unless justified in terms of Section 165 (2) (c).

This provision precludes the concept of class action.

Subsection (2) (c) should be struck out to be in line with the amendment in Section 165 (2) (a).

The Commission shall, upon completion of an investigation inform the public officer, person, private enterprise or institution of the findings in writing.

This section does not make provision for public access to reports of the Commission.

It is recommended that section 169(3) be amended follows: "Any report issued by the Human Rights Commission must be opened to the general public unless exceptional circumstances to be determined in terms of national legislation, requiring that the report should be kept confidential."

The Commission shall not, in investigating any matter leading to, resulting from or connected with the decision of a Minister, inquire into or question the policy of the Minister in accordance with which the decision was made.

This provision seeks to exempt a Minister from being investigated. Moreover it seems to imply that a Minister can pursue his/her own policy instead of government policy.

It is recommended that section 170 be struck out completely.

Section 173 - Administration of the public service

173(1) The Public Service of Swaziland shall be administered through service commissions or similar bodies established under this constitution or any other law.

173(2) the public service may be divide into sectoral units for ease of management and quick delivery.

173(3) each sectoral unit may have a separate service commission.

The section does not lay down the fundamental principles that shall govern the public

administration of the public service.

It is recommended section 173 be amended by the addition of a subsection (4), that will read: "Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

Section 174 (3) - Establishment and membership

Members of a service commission shall be appointed by the King on the recommendation of a

line Minister or any other authority as may be provided in this constitution or any other law.

In making Recommendation to the King for the appointment of a member of a service commission, the line minister shall proceed in a competitive, transparent and open manner on the basis of suitable qualifications, competence and relevant experience and the minister shall endeavor to recommend a person who can effectively discharge the responsibility of that office.

The provisions of sections 174(3) and 174(4) seek to involve the King at operational level in the public service and this raises the possibility of the compromise of establishment policies and procedures.

It is recommended that sections 174(3) and 174(4) be amend as follows:

Section 175 - Disqualification for membership

A person shall not qualify to be appointed as a member of a service commission unless that person posses relevant training and is of high moral character and proven integrity and that person –

1. qualifies to be elected as a member of parliament;

(c) is not a member of a trade union or staff association.

Implication

Section 175(1) (a) presupposes that this is a political post by disqualifying persons for not being eligible to be elected as a member of parliament and section 175(1) (c) is discriminatory because every worker has an inherent right to associate by joining trade unions.

Recommendation

It is recommended that sections 175(1)(a) and 175(1)(c) be struck out completely.

Section 175 (2)

A person shall not be disqualified from membership in terms of subsection (1) (b) or (c) where that person resigns or retires from that occupation within a period of three months from the date of appointment.

Implication

This section presupposes that a person who is not eligible for appointment as a member of a service commission may be so appointed. In addition, this provision is clearly in contravention of section 175(1).

Recommendation

It is recommended that section 175(2) be struck out completely.

Section 176 - Tenure of office and removal from office

Section 176 (4)

A member of a service commission shall be removed from office by the King where a tribunal appointed under subsection (5) recommends that the member ought to be removed from office for –

2. misbehaviour

This involvement of the King at this is likely to cause delays and the term "misbehaviour" is ambiguous and may create situations where an officer is removed arbitrarily.

It is recommended that section 176(4) be amended to read: "A member of a service commission shall be removed from office by the Minister where a tribunal appointed under subsection (5) recommends that the member ought to be removed from office for –

1. Misconduct / behaviour that is inconsistent with his/her duties.

Section 176(5)

Where the Prime Minister (after consultation with the line Minister in the case of the chairman or the chairman in the case of any other member represents to the King that the question of removing a member of a service commission under subsection (4) ought to be investigated, then –

1. the King shall appoint a tribunal consisting of a chairman (selected by the Chief Justice from persons who hold or have held or qualify to hold high judicial office) and two other persons recommended by the line Minister; and
2. the tribunal shall enquire into the matter and report on the facts to the King and recommend whether the member ought to be removed under subsection (4)

Section 176(5) will have the effect of centralizing power on the King, thereby creating the possibility of paralysis of systems and again, it positions the King, who is head Head of State, at the operational level.

It is recommended that section 176(5) be amended to read: "Where the line Minister (after consultation with the relevant stakeholders) in the case of the chairperson or the chairperson in the case of any other member represents to the Prime Minister that the question of removing a member of a service commission under subsection (4) ought to be investigated, then –

Subject to the provision of this constitution or any other law, the power of appointment (including acting appointments, secondments and confirmation of appointments) promotion, transfer, termination of appointment, dismissal and disciplinary control of public officers shall vest in the Civil Service Commission.

This provision seeks to vest powers to the Civil Service Commission that are not fettered by the establishment of a consultative process with line managers.

It is recommended that section 188(1) be amended as follows: "Subject to the provision of this constitution or any other law, the power of appointment (including acting appointments, secondments and confirmation of appointments) promotion, transfer, termination of appointment, dismissal and disciplinary control of public officers shall vest in the civil service commission and "shall be exercised by the Civil Service Commission acting upon a recommendation by the Principal Secretary of the line ministry".

Section 189 - Appointment and removal from office of Ambassadors, etc

The power to appoint persons to hold or act in the offices to where this section applies and to remove from office persons holding or acting in the offices shall vest in the King acting on the recommendation of the Minister responsible for foreign affairs.

The offices to which this section applies are the office of the Ambassador, High Commissioner, Swaziland’s Representative in any other foreign country or an International Organisation.

This section does not specify the appropriate qualifications for office holders here.

There is need to specify appropriate qualifications commensurate with the nature of the office, for example, experience in trade or investment or proven experience in international relations.

Section 190 - The Police Service

Section 190 (3)

Subject to any lawful superior orders, the command and overall superintendence of the Police Service shall vest in the Commissioner of Police who shall also be responsible for the administration and discipline of the Police Service.

The inclusion of "lawful superior orders" is likely to compromise the ability of the police force to "preserve the peace, prevention, and detection and the prevention of offenders" because the identity of the source of these orders is unknown; neither is its scope and exact relationship with the Police Service.

It is recommended that section 190(3) be amended to read: "The command and overall superintendence of the Police Service shall vest in the Commissioner of Police who shall also be responsible for the administration and discipline of the Police Service."

Section 191 - Correctional Services

Section 191 (3)

Subject to any lawful superior orders, the Commissioner of Correctional Services shall be responsible for the administration and discipline within the Correctional Services.

In a similar manner as with the Police Service, the inclusion of "lawful superior orders" in so far as the administration and discipline of the Correctional Services is concerned, is likely to compromise its ability "to protect and rehabilitate convicted persons".

It is recommended that section 191(3) be amended as follows: "The Commissioner of Correctional Services shall be responsible for the administration and discipline within the Correctional Services."

Section 192 - The Defence Force

The primary objective of the Defence Force is to defend and protect the Monarchy, sovereignty and integrity and people of the kingdom of Swaziland in accordance with the constitution and the

principles of international law regulating the use of force.

It is not clear why the institution of the Monarchy is singled out when the primary purpose of the Defence Force should be to protect the Kingdom of Swaziland, its territorial integrity and its people.

It is recommended that section 192(2) be amended to read: "The primary objective of the Defence Force is to defend and protect the kingdom of Swaziland, its territorial integrity and its people in accordance with the constitution and the principles of international law regulating the use of force."

The King and iNgwenyama is the Commander-in-Chief of the Umbutfo Defence Force whose members shall be citizens of Swaziland.

It is not clear why the iNgwenyama who functions are predominantly traditional should also be Commander in Chief of the Defence Force.

It is recommended that section 192(4) be amended to reads: "The King is the Commander in chief of the Umbutfo Defence Force whose members shall be citizens of Swaziland".

In addition, it is recommended that the word iNgwenyama where it appears in sections 192(5), 192(6) and 192(7) be removed for the above reason.

Section 193 - Disciplinary control over Principal Secretaries, Ambassadors, etc

Section 193 (1)

The power to exercise disciplinary control including removal of the officers to which this section applies vests in the King as provided in this section.

Before exercising any disciplinary control in terms of Subsection (1) the king shall direct the line Minister to refer the question of the exercise of that disciplinary control to the civil service commission or appropriate body.

The line Minister shall make any comments on the report and transmit the report with the comments to the King.

Sections 193(1), 193(2) and 193(7) are problematic in that they seek to involve the King at the operational level in so far as the administration of Civil Service is concerned.

It is recommended that sections 193(1), 193(2) and 193(7) as follows:

Section 195 - Protection of Public Officers

A public officer who is appointed by the King and who has been removed but not dismissed from that office unless promoted shall revert to the same or equivalent rank in the public service which that officer held prior to the appointment in terms of that section or accept a retirement package.

An officer referred to subsection (2) shall not continue to enjoy any personal right to the salary or related privileges of the position or rank from which that officer has been removed.

Where the suspension is lifted under the provisions of subsection (4) the suspending authority shall give a full report to the line Minister as to the circumstances leading to the suspension and the lifting of the suspension.

Sections 195(2), 195(3) and 195(5) are improperly placed in a Constitution.

It is recommended that sections 195(2), 195(3) and 195(5) be struck out and their contents be catered for in Government Terms and Conditions of Service.

These sections are inappropriately provided for in the Constitution for they are better dealt with through legislation.

It is recommended that sections 196 to 197 be struck out completely.

We refer to the whole section.

The contents of this section are already catered for in the current labour laws of the country.

Section 200 - Withdrawals from Consolidated Fund or Public Fund

Moneys shall not be withdrawn from the consolidated fund except –

(b) where the issue of those moneys has been authorised by,

Section 200(1) (b) (iii) gives the Minister too much discretion, a situation that needs to be avoided if previous instances of unauthorised expenditure by Cabinet are not to be repeated.

It is recommended that section 200(1) (b) (iii) be struck out.

For purposes of this section –

Section 200(4)(c) is likely to promote corruption and would thus compromises the principle of accountability.

It is recommended that section 200(4) (c) be struck out.

We refer to the whole section.

It is not clear why such provision needs to be made when similar provision has already been made under section 202.

It is recommended that this section be struck out completely.

This section will serve to neutralise the checks and balances being established under sections 205(2) and 205(3).

It is recommended that section 205(7) be struck out completely.

We refer to the whole section.

Section 207(5) - It would seem the inclusion of the phrase "save as may be necessary for the due performance of it’s functions" will have the effect of compromising the independence of the Central Bank because it creates opportunity when interference with the operations of the Central Bank will be allowed.

It is recommended that section 207 be amended as follows:

< 207(5) should be struck out.

We refer to the whole section.

In this section, as in the whole Constitution, the Prime Minister is not recognised as head of government, even appointments that should be made by the Prime Minister are made by the King.

It is proposed that powers given to the King in this section should be given to the Prime Minister.

We refer to the entire section.

This section is improperly included in the Constitution

Recommendation

It is recommended that this section be struck out and be provided for in the Terms and Conditions of Service.

We refer to the whole section.

The provisions of this section are not supported by an entrenched right to water in the Bill of rights.

It is recommended that there should be a correlating right to clean water in the Bill of rights.

We refer to the whole section.

The vesting of land rights upon the iNgwenyama instead of the Swaziland Government has negative implications in so far as security of land tenure for citizens is concerned.

It is recommended that section 212(1) be amended to read: "…all land…shall vest in the Swazi Nation, held by the King in trust for the Swazi Nation".

We refer to the whole section.

Comment

This section restricts access to land by Swazi citizens "for normal domestic purposes" and excludes other needs, such as commercial, which is crucial for the development of the country.

It is recommended that section 212(2) be amended to read: "A citizen of Swaziland without regard to their sex shall have right to land".

We refer to the whole section.

Comment

The words in this section "unless otherwise provided by law" create an opportunity for the arbitrary

deprivation of land.

It is recommended that the words "unless otherwise provided by law" should be removed from the section.

We refer to the whole section.

The positioning of the Board under the direct management of the iNgwenyama is likely to hinder public accountability of the Board.

It is recommended that the powers given to the iNgwenyama in this section be given to the Minister for Natural Resources and Energy.

We refer to the whole section.

This section vests mineral rights in the King and not the Swazi Nation.

It is recommended that section 214 be amended to read: "Minerals shall vest in the Swazi Nation and the King holds it in trust for the Swazi Nation".

We refer to the whole section.

The involvement of the iNgwenyama here will engender delays, as it is currently the case with the granting of trading licenses of operation in Swazi Nation Land through the Swazi Commercial Amadoda.

It is recommended that the Minister for Natural Resources and Energy carry out the functions previously given to the iNgwenyama in order to facilitate expedient decision making for purposes of promoting business development and investment.

In addition, section 215(7) be amended to read: "Subject to the provisions of this Constitution…"

Section 216- Water

We refer to the whole section.

It is not clear what is intended in terms of use of water for commercial purposes, for example, bottling of water for sale.

It is recommended that this section be re-written to cater for all on-going commercial activities involving water.

We refer to the whole section.

There is no correlating right to an environment that is protected in the Bill of Rights and thus raises problems with the full functioning of this section.

We refer to the whole section.

For clearer statement of this section it is best to replace "may" with "shall" in section 218(a) and replace "King" with Swazi Nation in the same section.

We refer to the whole section.

Given current challenges faced by the tinkhundla system of government, it is not clear whether the tinkhundla system of government can successfully be incorporated to the existing local government system.

It is recommended that section 219(2) be struck out as it is an unnecessary addition in the Constitution and that the words "as far as practicable" in section 219(3) be struck out.

We refer the whole section.

It is not clear how this section proposes to deal with existing city and town councils and section 220(3) has the potential of causing conflicts among chiefs.

It is recommended that:

Section 220(3) be struck out; the words "partly rural" and "partly urban" be removed from section 220(5) and the word "abolish" be replaced with "cause to merge" in section 220(6).

Section 221 - Administration of Local Government

We refer to the whole section.

Given the fact that the Constitution intends to bring in rural areas that were previously under traditional authorities into the realm of local government, it is not clear how the provisions of this section will be put into effect.

We refer to the whole section.

The immunity accorded to the Indlovukazi for all things done or omitted to be done by her in her private capacity negates the principle of supremacy of the Constitution and also weakens the protection of individual rights and freedoms that is proposed by the Bill of Rights.

It is recommended that the immunities accorded to the Ndlovukazi in this section be withdrawn.

The functions of these two bodies are similar in that they are both mandated to advise the

iNgwenyama on Swazi Law and Custom matters and the rationale for this duplication is not clear and undesirable, particularly when the governance problems such duplication will engender are considered.

It is recommended that the Ligunqa and Liqoqo be merged into one body and their functions integrated.

We refer to the whole section.

It is not clear how the Sibaya becomes the highest policy and advisory council of the nation because the Sibaya is not a decision making body but merely a forum for citizens to air their views, particularly when its role to compared to that of Parliament.

It is recommended that the Sibaya be used as a consultative forum that will feed into the broader governance system.

The iNgwenyama may appoint any person to be chief of any area.

The provisions of this section are inconsistent with the principles of Swazi Law and Custom, which prescribe that the position of chief is hereditary and that a chief is elected after having been

elected by the lusendvo (family council). In addition, this section is in direct contradiction with the provisions of section 234(3).

It is recommended that section 234(2) be struck out.

We refer to the whole section.

Whilst this section makes provision for the removal of diplomatic representatives from office, it does not clearly set out the circumstances that might lead to such dismissal.

It is recommended that the circumstances that will lead to dismissal be clearly spelt out, for example, misconduct, incapacity, and infirmity of body or mind.

We refer to the whole section.

Whilst the Constitution makes reference to international agreements, in its entire contents it does not reflect any acknowledgement of the international agreements that Swaziland has already

Ratified, for example, the Cotonou Agreement, the African Charter on Human and People’s Rights (African Charter), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil ad Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

It is recommended that the Directive Principles of State Policy and Duties of the Citizen as contained in Chapter VI be activated by the striking out of section 57(3) so that the provisions of sections 58 to 64 may bring the whole Constitution in harmony with the requirements of the said international agreements.

We refer to the whole section.

Although section 240(a) sounds ideal, its future effectiveness will be compromised by the absence of the right to know (right to access to information) in the Bill of Rights.

It is recommended that the right to access to information be made part of the Bill of Rights so that the provisions of section 240(a) and other sections requiring accountability be supported.

We refer to the whole section.

The constitution of the Human Rights Commission and the Public Administration into the Integrity Commission might engender problems of partiality and confusion of mandates.

It is recommended that an independent Integrity Commission be constituted.

We refer to the whole section.

It is not clear why "may" and not "shall" is used here, so that it should be clear that such a responsibility is mandatory and not discretionary.

Suggested Amendment

It recommended that section 245 be amended by replacing "may" with "shall".

We refer to the whole section.

The Council is a new structure and it being so, its specific mandate has not been clearly set out vis a vis the mandate of other similar advisory councils, such as the King’s Advisory Council/ Liqoqo and Liqunga. In addition, its entry into the legislative sphere through section 116 contributes to the truncation of the legislative authority of Parliament by extra-Parliamentary structures whose decisions may impinge on laws that Parliament will enact.

It is recommended that:

We refer to the whole section.

Section seeks to recognise and maintain the existing dual legal system and purports to subject both Roman-Dutch common law as well as Swazi law and custom to the principles of the Constitution. However, while the purpose is to recognize obtaining and operational law and to ensure continuity and consistency with the principles of the Constitution, presently this section does not provide clear guidance on the status of all the laws that currently exist in the country, for example, the 1973 King’s Proclamation to the Nation. This "silence" on certain laws, for example, on the 1973 Proclamation, might result in the continued existence of these laws when the Constitution is already in force. In addition, the ambiguity regarding the status of Swazi law and custom as regards the constitution will serve to perpetuate the legacy of uncertainty in the law.

It is recommended that section 253 be amended as follows:

1. any amendment or repeal and
2. consistency with the constitution."

We refer to the entire section.

It is common cause that every person working for government is in public office and should therefore be accountable. Consequently, section 255 by excluding offices such as those of the President and deputy President of Senate, Speaker and Deputy Speaker of the House, Minister, Deputy Minister, Senator, Member of the House or Member of any Commission established by this Constitution, from the realm of public office will create opportunity for the abuse of public office by incumbents here.

It is recommended that the entire section be struck out.

We refer to the entire section.

The provisions of section 256(2) are highly irregular in that they seek to create room for the appointment into office of candidates who are not equipped to carry out the requirements of the relevant position.

It is recommended that section 256 (2) be struck out in its entirety.

We refer to the entire contents of these sections.

The collective provisions of these sections are appropriately regulated by employment legislation and need not be in the Constitution.

It is recommended that sections 257, 258 and 259 be struck out completely.

We refer to the entire section.

Section 260 represents an unnecessary vesting of power as those organs that are mandated to make orders, regulations, etc. are ordinarily vested with power to alter or amend. Therefore such a provision will promote uncertainty and lawlessness because it seems to open the floodgates for the revocation of lawfully made orders, regulations, etc. and also creates opportunity for future subversion of the Constitution.

It is recommended that section 260 should be struck out completely.

The following changes are recommended:

We refer to the entire section.

It is notable that certain key State Institutions that are necessary for supporting the Constitution are missing, for example, the Law Reform Commission, Constitutional Court and Gender Commission.

It is recommended that there should be established the following Commissions and Court within six months after the commencement of the Constitution:

i) The Law reform Commission

ii) Gender Commission

iii) The Constitutional Court; and that

the Human Rights Commission should be made operational within six months after the commencement of the Constitution.

We refer to the entire section.

The exclusion of other laws such as the existing Decrees and Orders-in-Council here suggests that these do not fall within the ambit of constitutional scrutiny.

It is recommended that section 269(2) be amended as follows: "For the purposes of this section, the expression, "existing law" means the written and unwritten law of Swaziland as existing immediately before the commencement of this Constitution, including any Decrees and Orders-in-Council or Act of Parliament or subordinate legislation enacted or made before that date or which is to come into force on or after that date.

We refer to the entire section.

This section, by opening up the prerogative of mercy to any criminal offence, will have the future effect of compromising the rule of law and may be abused by individuals seeking to escape sanction for any crime committed.

It is recommended that the section 276 be struck out because it is unnecessary as section 79 on the prerogative of mercy already exists and in any event, this section is contrary to the provisions of section 79 that provides for the prerogative of mercy only in limited instances, that is, for those offences attracting capital punishment.

We refer to the entire contents of this part.

It appears to be risky to reserve the calling of a joint sitting in respect of a state of emergency to the King and Prime Minister only because it cuts out the element of broad-based consultation and as such has far-reaching implications for citizens and their rights.

It is recommended that section 1(1) be amended to incorporate the amendment in Section 37 in this manner: (a) "Whenever the Prime Minister is informed by the Speaker and the President that it is necessary in order that a joint sitting may deliberate and vote upon the question of approval, extending approval, or revocation of a declaration of a state of emergency under section 37".

We refer to the entire contents.

The provisions of this schedule raise the possibility that the well-being, as well as due execution of public office and duty in an accountable manner may be compromised in the future. This is because the oath as it stands now envisages that only the King, his heirs and successors are the ones in whose interests those taking the oaths will act. Predictable, accountability will be compromised because it is likely that actions contrary to public interest may be taken with impunity so long as the actions taken serve the interests of the Monarchy.

It is recommended that the oaths be amended as follows:

1. Oath of Allegiance

I………swear/ solemnly affirm that I will be faithful and bear true allegiance to the Kingdom of Swaziland, and that I will obey, respect and uphold the Constitution and al other law of the Kingdom. I undertake to hold my office as…………with honour and dignity; to be a true and faithful counselor and to perform the functions of my office conscientiously and to the best of my ability.

So help me God. (To be omitted in Affirmation)

2. Due Execution of Office

It is recommended that a Third Schedule be added to read as follows:

1. The saved provisions of the 1968 Constitution
2. The King’s Proclamation to the Nation No. 12 of 1973
3. Decree No. 1 of 1981
4. Decree No. 2 of 1981
5. Decree No. 1 of 1982
6. Decree no. 1 of 1986
7. Decree No. 1 of 1987
8. Detention (Repeal) Decree, 1993; alternatively,