Feature on challenge to rule by royal decree

A new ruling by Swaziland's Court of Appeals has challenged absolute monarch King Mswati III's right to ignore parliament and rule by decree, presenting a fresh test for the government's commitment to the rule of law. In a ruling at the weekend the appeals court, consisting of eight justices on loan from South Africa, found that Mswati's father, King Sobhuza, erred when he gave himself and future Swazi kings the power to rule by decree. Sobhuza did this via his first decree in 1980. The court found a king could decree laws only if mandated to do so by a national constitution. Sobhuza overturned Swaziland's first constitution in 1973, when he gave the monarchy incontestable governing powers. "That a king's decree can only be made once a new constitution is in place remains an essential requirement," Judge President Charles Leon wrote in a 25-page ruling. The appeals court said they would invalidate all royal decrees brought to them on an individual basis. "This puts us back at square one, because the ruling was made specific to King Mswati's Decree No. 3 of 2001, which was put in place to nullify an earlier decree that the international community condemned as dictatorial," a Western envoy told IRIN. Two accused rape suspects lodged a challenge against Decree No. 3 because it denied bail to rape suspects. The decree also forbade bail to persons accused of murder, high treason, poaching of endangered game species and other serious crimes. The Swaziland Law Society criticised the decree for removing magistrates' discretionary power over bail. Society president Paul Shilubane celebrated the Court of Appeals repeal of the decree, and promised that suspects denied bail in many crimes would now lodge bail appeals. Another provision of Decree No. 3 declared that the appointment of controversial Attorney-General Phesheya Dlamini could not be challenged. Dlamini made an ultimatum to three high court judges this month that they would be fired if they did not drop the case of a mother suing the palace for the return of her teenage daughter, who was allegedly abducted to become Mswati's tenth wife. That prompted contempt of court and sedition charges laid against him by Director of Public Prosecutions Lincoln Ng'arua. But last week Prime Minister Sibusiso Dlamini, a palace appointee, and Mswati's closest advisor, Moi Moi Masilela, allegedly told Ng'arua that he would be sacked if he did not drop the charges against the attorney-general. Beyond the issue of non-bailable offences and the attorney-general's appointment, Decree No. 3 called for the repeal of an earlier Decree No. 2. With the appeals court overturning Decree No. 3, the attorney-general announced that Decree No. 2 was therefore back in force. Decree No. 2, introduced last year, was an omnibus law that tried to curb the power of trade unions by making strikes virtually impossible. The unions have been key members of the Swaziland Democratic Alliance that has sought to turn King Mswati into a constitutional monarch under a popularly elected government. The decree also forbade court challenges to any royal or government decision. It expanded the power of traditional authorities like chiefs, and made it easier for government to shut down newspapers. The UN's International Labour Organisation and the US labour federation the AFL-CIO threatened to push for economic sanctions against the kingdom if Decree No. 2 was not repealed. The US government indicated Swaziland would be dropped from the Generalised System of Preferences, which allows Swazi goods to enter the American market duty free and has been deemed essential for the survival of the kingdom's manufacturing export sector. King Mswati responded by saying he had never read Decree No. 2 when it was given to him to sign in his limousine on his way to the airport. Within a month, he signed Decree No. 3 nullifying the prior law. There are no guarantees that Mswati would honour the Court of Appeals ruling on Decree No. 3, despite growing international concern over Swaziland's governance record. "We have observed that there is interference with the work of the judiciary," Leon said in a letter at the weekend to the Ministry of Justice. He listed incidents where high court rulings have been ignored by the palace, and judges were intimidated by government officials. US Secretary of State Collin Powell recently expressed similar concerns in a recent to Foreign Minister Abednego Ntshangase, which was leaked to the local press. "The United States is deeply concerned that Prime Minister Dlamini, Attorney-General Phesheya Dlamini and Swazi National Council member Moi Moi Masilela, reportedly acting on behalf of King Mswati III, visited Director of Public Prosecutions Lincoln Ng'arua late at night to coerce him into dismissing the charges of sedition and obstruction of justice against the attorney general," Powell said. "We are similarly troubled by reports of the prime minister's demands that parliamentarians approve the king's request for purchase of a new jet or submit their resignations. These further undercut the rule of law in Swaziland, and call into question the government's respect for international accepted principles of good governance," the letter added.