In view of the process as it has unfolded in Swaziland over the past few years since 1996 when the process began with the commissioning of the Prince Mangaliso-headed Constitutional Review Commission (CRC) to date with the Draft Constitution submitted by Prince David’s Constitutional Drafting Committee (CDC), several issues arise in the formation of a position on the Draft Constitution as the true reflection of the will and aspirations of the people of Swaziland. The Swaziland Coalition of Concerned Civic Organisations (SCCCO) has analysed this national exercise and based its position on three critical areas:

1. Process

It goes without saying that for meaningful participation in a national exercise of this magnitude and importance, the populace must be aware of the meaning and implications of what they are doing. The absence of such civic education and the subsequent ignorance of the populace on the relevant issues is an indictment on both the CRC and CDC. When the issue was raised by civic groups who were attempting to conduct civic education, it was dismissed as unnecessary before the adoption of the final document. Where civic groups conducted such education, there were instances where they were prevented from continuing from meetings or where there was police presence which intimidated participants from freely expressing themselves.

While it cannot not be ignored that a diversity of views exists in the country about constitutional issues, this diversity was not accommodated by the process:

• the process has been dictated unilaterally and the nation has not been included in planning a process that will decide its destiny (e.g. CRC/ CDC members all appointed by King; process not known or agreed in advance such as community consultations; method and time frame of adoption remained a mystery for a long time; goal-posts kept changing along the process)
• the prevention of group/ representative submission greatly curtailed the effectiveness of the exercise as it has ensured some voices have not been included in the Draft

The essence of the participation in a constitution-making exercise is that there must be freedom of expression so that the populace may give their views freely without fear of recrimination should their views not be in harmony with the status quo. However, with the existence of the 1973 Proclamation to the Nation that essentially outlaws freedom of expression and assembly on constitutional and political issues in Swaziland, it was virtually impossible to erase the atmosphere of fear that has surrounded the drafting of this constitution.

Police/ security force presence, prevention in accessing communities, as well as police brutality on political activists has bred an atmosphere of intimidation for many people who either did not participate at all in the process and discussion of the constitution or censured themselves accordingly for fear of uttering "seditious" statements (that recent history has shown can be virtually anything contrary to the status quo and exacts serious consequences on the "guilty").

For a people that know the experience of living under a perpetual "state of emergency" where the discussion of politics have been demonised and regarded as taboo and have attracted serious sanction, it is improbable that mere lip-service to free expression without the removal of the prohibitive legislation would convince them that their different views would not be to their personal detriment.

The substantive content of the Draft constitution, having resulted from this flawed process, cannot escape without its own imperfections as it would be improbable that it would accurately reflect the aspirations of the Swazi people. The following is an analysis of some of the major provisions of the Draft that will ultimately affect, amongst others how the country will be governed and what rights citizens will enjoy as well as demonstrate to what extent the country is moving away from the old "1973-Decree engineered" dispensation. The provisions discussed are in terms of the

• Supremacy of the Constitution
• Separation of powers
• Bill of Rights
• Position of Swazi law and custom

The supremacy of the constitution is premised on the principle of equality of all before the law with the attendant obligation for individuals to respect the principles espoused by the Constitution as the reflection of the collective will of the people and the censure that is attracted by any violation of those principles.

With regard to its supremacy, the Draft constitution states in section 2 (1) states,

• " This Constitution is the supreme law of Swaziland and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void;" and
• in subsection (2), that, "the king and all the citizens of Swaziland have the right and duty at all times to uphold and defend this constitution."

However, within the constitution, certain immunities are given to the:

• King (Draft section 12) and Ngwenyama (Draft section 229);
• Queen Regent (Draft section 12) and Ndlovukazi (Draft section 230)
• Authorised person (Draft section 12) in respect of "suit or legal process" that effectively place these three offices above the scrutiny of the principles established by the constitution.

The implication is that to a certain extent, these immunities erode the equality before the law and the supremacy of the constitution and expose the citizenry to violations by these offices with impunity. This is particularly of concern as experience has shown how violations are committed using the name of the monarchy and thus legitimate violations are hidden and offenders shielded by the veil of immunity of these offices.

The constitutional doctrine of "separation of powers" refers to the distribution of the power of governance between the three arms of government, that is, the:

1. Executive

(Policy-makers, i.e. Cabinet)

2. Legislature

(Law-makers, i.e. Parliament)

3. Judiciary

According to this doctrine these arms of government exercise co-equal power in performing their different functions and it is important that they are separate so as to exercise oversight on each other, import checks and balances into the governance system and thus prevent the abuse of power by any of them.

The provisions of the Draft Constitution on these institutions must be analysed in the context of the 1973 Proclamation to the Nation in which the then King Sobhuza II, stated:

By this Proclamation all the power of these institutions and thus of governance was and continues to be vested in the King. Thus such power was in a single institution and without the necessary checks and balances. It is therefore important that the Draft provides a structure that ensures the separation of powers. The following are the provisions and analysis of the relevant provisions in the Draft:

Chapter VII of the Draft Constitution deals with the Executive and its operations. The following sections are pertinent to examining the power of the executive particularly vis a vis the King:

• Draft Section 65 (1): The executive authority of Swaziland vests in the King as Head of State and shall be exercised in accordance with the provisions of this constitution.

• Draft section 65 (3): Subject to the provisions of this constitution, the King may exercise the executive authority either directly or through the Cabinet or a Minister.

• Draft section 66(4) where the King is required by this Constitution to exercise any function after consultation with any person or authority, the King may or may not exercise that function on the advice of that person or authority."

In any state the executive power essentially vests in the head of state but is directly exercised by the executive officers, in the case of Swaziland, the Cabinet. The Draft Constitution allows for the King to exercise executive powers directly, which compromises the executive. According to the Expert panel of the International bar Association, the Draft "muddies the distinctions between the royal, executive, and legislative functions of the King, potentially at the expense of the rule of law which is an expressed aim in the preamble."

A further complication is that which is added by Draft section 66(4) which, in its ambiguity, potentially means that the King, despite counsel to the contrary, may exercise his power in any manner he deems fit thus practically giving him an unfettered power.

In addition, the Draft recognises the office of the Ngwenyama as traditional or customary head of the Swazi nation. According to the Draft, the Ngwenyama retains all of his customary powers, which, although not detailed in the constitution, are quite extensive, and would allow him, in their exercise to broaden the scope of his executive power.

On reading Chapter VII in conjunction with the rest of the Draft Constitution, it is clear that the King still retains supreme executive power and as such the position declared in the 1973 proclamation has not been altered by the Draft but has been merely secured by it.

Chapter VIII of the Draft constitution deals with the Legislature and its functions. Draft section 107 deals with the power to make laws, and states, "Subject to the provisions of this constitution:-

• Section108details the manner in which legislation is to be passed into law and provides that, no matter what procedure is followed, the King must assent to Bills as a prerequisite for the Bills to come into force as law.
• Draft section 109 (1) states that" A bill shall not become law unless the King has assented to it and signed it in token of that assent."
• Draft Section 109 (3) gives the option that the King may withhold his assent.

The effect of the above sections is that the King, with his power to withhold assent to legislation and the absence of a mechanism whereby this refusal to assent may be overridden, retains supreme legislative power because he is the final judge over what may or may not become law. Juxtaposing this position with that established by the 1973 Proclamation, it is submitted that the Draft’s provisions propose maintenance of the status quo in that final legislative power will remain with the King.

There is also the further complexity introduced by Draft section 116 which deals with matters regulated by Swazi law and custom. This section effectively curtails the law-making function of the legislature in that bills that potentially affect Swazi law and custom are removed from the purview of the lower house of parliament where the representatives of the people sit and would be given an opportunity to discuss the change in law and pass it through. Parliament consists of two houses, the lower house, the house of Assembly and the upper house, the house of senate. The former comprises 65 members, 55 elected from constituencies, and 10 appointed by the King while the latter comprises 30 members, 20 of who are appointed by the King and ten of whom are elected by the House of assembly. The Draft proposes that any bill seeking to change matters regulated by Swazi law and custom be introduced in the upper house first and then be directed to the Council of Chiefs. The consideration of the law is limited to those appointed by the King and the chiefs who clearly all have an interest in maintaining the status quo. It is submitted that the truncating of the legislature’s power in this regard continues to reinforce the law-making power of the King.

Chapter IX of the Draft Constitution deals with the Judicature. Draft section 141 (1) states, ‘The judicial power in Swaziland rests in the Judiciary. Accordingly, an organ or agency of the Crown shall not be conferred with final judicial power."

In addition Draft section 142 (1) states, "In the exercise of the judicial power of Swaziland, the Judiciary, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to this Constitution, and shall not be subject to the control or direction of any person or authority."

These sections would imply that a decision made by a court having duly considered a matter is final. This would, by extension, imply that the customary final appeal of "kwembula ingubo" is to be abolished but this implication is not a foregone conclusion as matters concerning Swazi law and custom are given a rarefied protection in the constitution and that the constitution is silent with regard to the specific power. Thus potentially, the King could retain this customary prerogative and as such retain his authority as the final arbiter in any dispute. It is possible therefore that despite the statement within the constitution, the King, through the exercise of traditional power may still retain final judicial power. This would mean that again, the position of the King vis a vis judicial power remains the same as it was stated as at 12^th April 1973.

Further, in order for the judiciary to be able to fulfil the immense responsibility of dispensing justice without "fear or favour," it is submitted that one of the ways in which the independence of the judges may be reinforced is through the manner in which its officers are appointed. The Draft Constitution proposes, in Part 4 (of Chapter IX on the Judicature) that there be a Judicial Services Commission, one of whose functions will be to advise the King on the appointment of judicial officers.

Draft section 160(2) states: the Commission shall consist of the following-

1. the Chief Justice, who shall be the Chairman;
2. two legal practitioners of not less than seven years practice and in good professional standing to be appointed by the King;
3. the Chairman of the Civil Service Commission; and
4. two person appointed by the King.

This section is of concern as, in effect, the whole membership of the Commission is appointed by the King. No involvement of professional or independent bodies, such as, for instance the Law Society, nor members of the public, is envisaged by the Draft. The unilateral appointment of Commissioners by the King casts doubt on the degree of independence that the Commission will in practice have in the appointment of judicial officers.

The composition of the Commission in this way has the potential to in turn colour the appointment of judicial officers and thus compromise the suggestion that the judiciary will be free from interference or allegiance to its appointing authority. The potential interference may not be overt, but the inclination of the judicial officers may be to interpret the law and dispense "justice" from a perspective that seeks to preserve the status quo. While conceding that this is potentially a danger, the fact is, it is one that the Draft allows yet one that the country cannot afford and it would clearly be wiser to eliminate such possibilities before the document becomes final rather than have to deal with its manifestations if these sections are finalised in their present form.

"negative"obligations: – remove power from government

e.g education, healthcare, food, water, shelter, access to land and housing

"positive obligations" – impose obligations on government to act

The truth is that all human rights are indivisible and interrelated and none takes precedence over the other as it is not possible to enjoy one "class" of human rights in the absence of the others.

The Bill of Rights recognises a number of human rights but is generally weak when it comes to the recognition and protection of socio-economic rights. While socio-economic rights present difficulty in terms of enforcement because they are dependent on the economic standing of a country, this would also give government the responsibility both to try and provide certain services for the populace as well as to desist from preventing the enjoyment of those rights, for example, through forced evictions.

The recognition and protection of human rights in a bill of rights is predicated on equality of all persons before the law so that all citizens may enjoy equality benefit from the recognition of their rights and equal protection in the event those rights are threatened with violation. It is also important that the law binds all in the protection of human rights. If there is no equality before the law or the law does not have equal application to all persons, then the protections purportedly afforded by the bill of rights are subverted.

Section15(2) provides that, "the fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature, and the Judiciary and other organs or agencies of government and where applicable to them, by all natural and legal persons in Swaziland, and shall be enforceable by the Courts as provided for in this Constitution."

Section 15 (3) also has a bearing on equality

Equality is provided for in Section 21 (1) of the Draft Constitution:

The Draft Constitution establishes a Commission on Human Rights and Public Administration that is responsible for, amongst other things:

• investigating complaints regarding alleged violations of the fundamental human rights and freedoms protected by the Constitution,
• investigating complaints of injustice, corruption, and the abuse of power.
• promoting and fostering "strict adherence to the rule of law and principles of natural justice in public administration and promote fair, efficient and good governance in public affairs.

Section 166 (3):

"The Commission shall not investigate…..

3. a matter relating to the exercise of any royal prerogative by the Crown."

The presence of these provisions is contradictory and opens the possibility for abuses of human rights not to be questioned because they are done in the name of royal prerogative. If actions that infringe on human rights be taken away from the ambit of enquiry, the net effect is that there is no real protection of peoples’ human rights because to avoid sanction, the action could simply be labelled "as per royal prerogative" and the Commission would be powerless to question it.

There exist an inordinate amount of limitations and derogations from the rights stipulated in the Bill of Rights which have the effect of giving the right with one hand and simultaneously taking it away with the other. The limitations are phased in wide language which opens up the instances in which the limitation of the right may be "justified" when it is unjustifiable and this wide language opens up the opportunity for whimsical denial of rights to citizens.

The Draft Constitution recognises the dual legal system in the country and purports to subject both systems of law to the principles of the Constitution. The relevant provisions are the following:

Whilst the Draft Constitution seems to subject the two systems of law as subordinate to the principles of the constitution, read together with other provisions, namely the immunities, the limitations on rights, the power distribution, the effect of these provisions, particularly as regards Swazi law and custom, are watered down. Some of the issues that arise are:

• The unwritten and fluid nature of customary law

Swazi law and custom is presently quite fluid, allowing interpretation in differing ways depending on who is interpreting it at a particular point in time. While custom is collectively expressed by the members of a particular society, in the case of Swzilnd, there is the additional dimension that the final authority of what constitutes custom is the preserve of the monarchy.

The lack of clarity in what constitutes custom then opens the door for abuse and manipulation by those who stand to gain at any particular point in time by adherence to custom as they state it to be.

The Draft Constitution refers to a multiplicity of national processes being conducted "in accordance with Swazi law and custom." This as well as the lack of clarity/ certainty of Swazi law and custom begs the question as to whether Swazi law and custom is in fact subject to the principles of the constitution, whether it is on the same level as the Constitution, or actually supercedes the constitution?

• The truncated law-making power of parliament vis a vis custom

Section 116 refers to the matters that will continue to be regulated by Swazi law and custom and stipulates that the following matters shall continue to be regulated by Swazi law and custom: