Swaziland’s Proposed Constitution: briefing by its Minister of Justice and Constitutional Affairs

Meeting report

FOREIGN AFFAIRS PORTFOLIO COMMITTEE
16 March 2005
SWAZILAND’S PROPOSED CONSTITUTION: BRIEFING BY ITS MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS

Chairperson: Ms F Hajaig (ANC)

Documents handed out:
None

SUMMARY
The Minister gave a history of Swaziland from the dissolution of its previous constitution in 1973 up to the submission of its new constitution to Parliament in October 2004 which it hopes to adopt by May 2005. Members questioned whether Swaziland was an absolute monarchy and inquired about the state of democracy and the economy in Swaziland. The Minister then explained some of the features of the new constitution. He also pointed out the hardships that Swaziland was undergoing in the form of drought and global trade regulations.

MINUTES
The Minister, Honourable Prince David Dlamini, explained that when Swaziland had become independent in 1968 it had been given a Constitution by the outgoing colonial rulers. Swaziland felt that it had been forced to accept the constitution as a condition of independence and repealed it in 1973. The King appointed a committee to gather opinions from across Swaziland as to what the people expected in a new constitution. That report was completed after two years but never publicly released. Parliament had been dissolved in 1973 but it had been reinstated in 1978 with Members elected indirectly by an electoral college that was elected by the Swazi people. Swaziland’s King Sobhuza II died in 1982 and a new King, King Mswati III, his son, assumed power in 1986. His goal has been to make Swaziland a constitutional democracy.

A committee had been appointed to gather input from around the country and in 1990 reported that the people wanted a constitution and direct election of Parliament. Direct elections to Parliament were held in 1993. In 1996, a commission was appointed to collect public opinion on preferences for a new constitution. In 2001, a constitutional drafting committee was formed with the Minister of Justice and Constitutional Affairs as the chairperson. The committee consisted of 16 members from Swaziland, a special envoy and two constitutional experts from the Commonwealth. The committee used the 1968 constitution, input from the public that had been gathered and documents on human rights and constitutional issues as guides. The committee also studied the constitutions of nineteen countries including countries from the Southern African Development Community, Asia, and Europe. Groups within Swaziland objected to the composition of the constitutional drafting committee. Lawyers for Human Rights was invited to address the committee but refused. Women in Law in Southern Africa addressed the committee for over three hours and their input has been reflected in the draft constitution. The draft had been presented to the King in May 2003. The King ordered the committee to present the draft to the Swazi people. The committee distributed hundreds of copies in every community and visited those communities. Many refused to comment on the draft because it was written in English, a foreign language. The proposed constitution was translated and submitted to Parliament for ratification in October of 2004. It was amended in the Lower House and sent to the Upper House which reversed most of the Lower House’s amendments. The Minister hopes that the constitution will be approved by May.

Discussion
Mr K Bapela (ANC) said that the Minister had presented more on the history than the content of the proposed constitution. There was a desire for democracy in Swaziland. Swaziland has been an absolute monarchy. Political parties have been banned since 1973. How can there have been a constitutional review with no input from political parties? Was there freedom of speech in Swaziland?

Mr Y Wang (Independent Democrats) stated that the International Monetary Fund (IMF) had reported that Swaziland’s economic growth had decreased by over 1% in the last year.

Mr M Sibande (ANC) inquired about activists who had been evicted or harassed by the government.

Ms N Gxowa (ANC) asked about the representation of women and people with disabilities in the drafting process.

Dr S Pheko (PAC) said that Swaziland should be commended for having worked to establish a constitution. The people should reject a constitution written in English because it was not an African language. Had the constitution been accepted by the people and was the monarchy constitutional or absolute?

Mr W Seremane (DA) asked how the Minister responded to criticisms that Swaziland is undemocratic and that the King was living extravagantly despite Swaziland’s economic problems.

The Chairperson said she was concerned about labour issues, poverty and HIV/AIDS in Swaziland.

Mr M Hlope (Swaziland High Commissioner to the RSA) answered that people have called Swaziland undemocratic but one also has heard that all of Africa is undemocratic. Democracy has meant that the people are ruling but the practice of it has been different in different countries. Swaziland has been measured by a foreign standard. Swaziland could not be labelled undemocratic because it had no political parties. The King had said that the question of political parties is not closed. Swaziland has not been undemocratic unless it has been judged by narrow terms.

The Minister answered that the people are happy with the King as the head of state and there are three branches of government. Swaziland should not have been judged by how it has been but for how it could be. The constitution had a clause requiring that thirty percent of the legislature be women. It has protected women's rights and the rights of the disabled. There was a bill of rights and the leader of the government must face Parliament once a year. There was a supremacy clause that made the constitution the highest law of the land. Parliament could vote out the prime minister with a two thirds vote. Swaziland had no political parties but it had movements. All of those who were evicted have returned to their home except for one.

Mr Hlope said that misinformation had been spread that Swaziland had the highest HIV infection rate in the world. The government was addressing HIV/AIDS.

The Minister pointed out that Swaziland was suffering from extreme drought over a period of years. Swaziland has also been adversely affected by international trade regulations. Such factors have been out of the government’s control. Swaziland had wanted to diversify its production which has been exclusively sugar. Swaziland will continue to struggle economically and could look to South Africa for assistance.

The Chairperson assured the Minster that South Africa would be a good neighbour to Swaziland.

The meeting was adjourned.