Draft constitution to be challenged

Swaziland's draft constitution will be challenged in court by the National Constitutional Assembly (NCA), a group of lawyers, human rights activists and opposition political parties. "The Draft Constitution is a product of a process which is not free, not transparent and not accountable to the people. It is founded on oppressive laws that make it impossible for citizens to participate freely, without fear, particularly because political rights are still being withheld and political organisations are prohibited," said the NCA in a statement issued Monday. Swaziland Law Society officials confirmed that the constitution would be challenged in court before King Mswati decrees it as law, which the monarch has promised to do during this year. NCA officials would not say when they intended to mount the court challenge, but insisted it would have to be done before Mswati made his constitutional decree. In its own statement on Monday, the law society challenged Mswati's status in the new constitution as the country's supreme ruler, with power over the legislature and judiciary, while also running the executive branch of government. According to the draft constitution, the king will be able to decree laws, and appoint the prime minister, cabinet and senior government officials, and political opposition is banned. "That no man is above the law, and that everyone, regardless of rank, must be subject to the ordinary laws of the land, is one of the widely recognised constitutional touchstones - otherwise, you get a government that governs by discretion, driven by personal whims and caprices; a government that knows no restraint; a government of men and not of laws," said the law society. The NCA's long-awaited critique of the draft constitution and its request for a constitutional assembly, with delegates elected by the Swazi people, drew attention on Monday. The group noted that the palace's draft constitution - based on a report compiled by Prince Mangaliso Dlamini and written by Prince David Dlamini, Minister of Justice and Constitutional Affairs - makes permanent a 1973 royal decree that abrogated Swaziland's original democratic constitution, and gave the king absolute governing powers. "The palace report fails absolutely to explain, and to indicate statistically, the number of people who [made submissions to] it. The process is not people-driven - it has always been a project for the royalty," said the NCA. While commenting that "democracy and the people of Swaziland are two strangers who are yet to meet," the constitutional group called for a separation of powers and a return to the rule of law. The draft constitution does not permit parliament to make laws. "The NCA contends that the accumulation of all powers in the hands of one person can best be defined as tyranny, hence the need to separate powers," the statement said. Foreign envoys originally praised the draft constitution for including a Bill of Rights when it was unveiled last June, but the constitutional group has called its inclusion meaningless. "The Bill of Rights fails dismally to protect fundamental rights, civil liberties and freedoms of individuals in that, on one hand it attempts to afford the rights, yet on the other it takes them away," the NCA said. Liberties like freedom of religion are voided because the constitution calls for an official state religion, while other freedoms are "subject to many limitations, the effect of which is to undermine the very rights it seeks to protect," the group said. The king may also void civil liberties when he deems these contrary to the public interest, although the NCA noted that nowhere in the constitution was the public interest defined. The draft constitution did, however, institutionalise traditional structures like the Swazi National Council (SNC), a group of palace advisors made up of princes and traditionalists handpicked by the king. "There is no consensus in Swaziland today whether or not the SNC should be maintained, [considering] the role it has played in the maladministration of the country, not to mention that it is always composed of people who are hostile to change and democratic governance," the NCA said. "The difficulty with these traditional structures is that they fail to take account of government as created by the people - they are not put in place through popular will," said the NCA. "The [two forms of government] are always in conflict, and such conflict should not be encouraged in the constitution." They called the draft constitution sexist, because Swazi citizenship is denied to children born in the country to Swazi mothers and non-Swazi fathers, while children born of non-Swazi mothers but Swazi fathers are granted citizenship. The NCA objected to the perpetuation in the new constitution of a parliamentary system that allows the king to appoint MPs and senators to look after royal interests. Such a parliament is not legitimate, they said, citing the Commonwealth Expert Team that monitored last October's parliamentary elections. In its report the Commonwealth team called for the early promulgation of a new constitution that would allow governing powers to reside in government and parliament, the existence of political parties and respect for the rule of law. After the last parliamentary elections, the Commonwealth team said, "We do not consider the credibility of these national elections as an issue: no elections can be credible when they are for a parliament which does not have power, and when political parties are banned." The offices of the king and prime minister have not responded to NCA petitions or requests for meetings.