Legal experts review controversial draft constitution

The International Bar Association (IBA) has submitted to the Swazi government what legal experts are calling the most comprehensive assessment yet of King Mswati's proposed draft constitution. While a panel of constitutional attorneys found legal inconsistencies in the document, it congratulated the nation for seeking a restoration of rule of law in governance. "Several centuries of tradition will be changed by the implementation of the new constitution because of its inclusion of a Bill of Rights, something which the Swazi people have been calling for, for some time. However, the panel recommends further initiatives," said chairman of the panel, Dr Phillip Tahmindjis, at a press conference announcing the report in the capital, Mbabane, on Friday. Tahmindjis emphasised that the 119-page draft constitution was merely a beginning on the road to bring Swaziland, which is ruled by sub-Saharan Africa's last absolute monarch, in line with international norms on governance and human rights. This contrasts with the view of royal authorities, who instigated the constitution following pressure from the international community. King Mswati said he intends to approve the constitution by November, saying it contains the wishes of the Swazi people. Pro-democracy groups have condemned the palace-authored constitution as a public relations gimmick, which they say ignores Swazis' desire for fundamental political reform, such as changing the king's status to a constitutional monarch within a democratic system, and the legalisation of political parties. The draft constitution guarantees freedom of assembly, but is silent on the legality of political parties. Because King Mswati's father, King Sobhuza, banned political parties in 1973, and Mswati has steadfastly maintained this policy, democracy advocates want specific language in the constitution that allows an organised political opposition. Lawyers for Human Rights Swaziland, the Human Rights Association of Swaziland and the Swaziland Democratic Alliance, consisting of labour groups and banned political parties, have insisted on unambiguous wording to permit political pluralism. "A restraint on the freedom to form or belong to a political party is a denial of the freedoms of association and expression. This right should therefore be clearly guaranteed in the constitution," the IBA report said. It also called for the right of workers to strike to be specified in the constitution. In Swaziland, where labour organisations are at the forefront of the democratisation movement, the government has attempted to curtail strike actions through legislation. The IBA lauded the end of Swazi custom that bestows on women the legal status of minors. Constitutional provisions prohibit discrimination on the basis of sex. However, the constitution does not infringe on Swazi customs that are the foundation of royal power, such as the king's ability to evict Swazis from their land. "Eighty percent of the population lives on communal land under chiefs, who are appointed by the palace. Chiefs have threatened to banish people for joining political parties. It is a huge club to wield, because Swazi peasants do not own title deed to their land. Royalty keeps the people in line with this club," human rights activist Nomsa Lushaba told IRIN. The current "rule of law" crisis began in 2000, when King Mswati ordered the eviction of 200 people from their ancestral land after they refused to accept the king's brother as their chief. The government ignored all subsequent court rulings overturning the evictions. The IBA panel noted that a constitutional guarantee of freedom of movement is cancelled out by the qualification: "Nothing done in or under the authority of any provision of Swazi law and custom shall be held to be inconsistent with or in contravention of this section." "In other words, government can still tell people where they can and cannot go, but this somehow should not be seen as inconsistent with the constitutional guarantee of free movement," said Lushaba. The panel also objected to a section that essentially cancels all Bill of Rights guarantees. Section 15 (3) states that individuals may enjoy fundamental rights and freedoms, subject to the rights of others and the public interest. "There is no definition of 'public interest'. This is inherently a vague term, and potentially open to abuse," the IBA noted. The IBA report has been filed with the King's office for review. The government was incensed by an IBA report earlier this year that was critical of government interference in the judicial system, and said the government was undermining the courts by refusing to obey rulings the palace disliked. Both Prime Minister Sibusiso Dlamini and Attorney General Phesheya Dlamini, appointees of King Mswati, said they burned the IBA report. "I hope that this time they would start an even bigger fire with this thicker document," Tahmindjis quipped at the press conference.