Rising concern over draft constitution as day of decree approaches

Mounting grassroots concern over the imposition of King Mswati's constitution became increasingly evident this week as women's groups launched education campaigns, and was borne out in submissions by ordinary Swazis to the palace-appointed Constitutional Drafting Committee (CDC). "The prerogatives conferred on the King effectively place him above the constitution, and this puts in doubt the supremacy of the constitution, especially with regard to protection of the rights and freedoms of citizens," stated the Swaziland branch of Women in Law in Southern Africa. What worries many Swazis is that the draft constitution, which Mswati said he would decree into law by next month, places the entire traditional system of patronage supporting the monarchical system above the law. Generally referred to as "Swazi Law and Custom," the system, which has never been written down, gives palace-appointed chiefs authority over the landless peasants making up 80 percent of the population, and perpetuates customary practices that subject women to minority status. "The continued recognition of both common law and Swazi customary law, without clear synthesis to avoid conflict of law, is a concern. The constitution should clearly subject Swazi law and custom to the same standards as any other law," said the Women in Law report. Published with a grant from the British High Commission in the capital, Mbabane, the legal group's analysis of the draft constitution is being distributed to health clinics, churches, community centres and other places where women congregate. In the absence of other reports intended for a general readership that examine the lengthy and legalese-filled 151-page draft constitution, the report has also informed male politicians. Incumbent MP Mfomfo Nkambule, a candidate in next month's parliamentary election, told IRIN: "I thought the constitution would have powers above the king. This has opened my eyes." According to the draft constitution drawn up by the palace, the government is subject to the control of the Swazi king, who has absolute executive, judicial and legislative authority. The women's legal group blasted this arrangement: "There should be a clear separation of powers, with the king's role limited to executive, as head of state." The constitution also continues the present arrangement where citizenship is determined by parentage. A child is a citizen if the father is a Swazi, whether or not the child was born in the country, or raised by a Swazi woman and her family. Legal groups like the Swaziland Law Society have noted this contradicts the constitution's professed guarantee of equal rights. "Women who have children outside marriage, with foreign men, will have to prove that the child's father has not claimed the child before the child can qualify for citizenship. This can be embarrassing and degrading. It means that children born outside marriage by Swazi women can be claimed at any time by their fathers, leading to insecurity of custody," said the women's group. The report also noted the draft constitution's xenophobic attitude toward citizenship: "women who marry foreign men can easily be assumed to have lost their citizenship." The group wants an equality clause included in the constitution, allowing both women and men to pass citizenship on to their children, irrespective of marital status. "The authorities are going to have trouble with that, because it flies in the face of Swazi law and custom, which is patriarchal right down the line. Women are seen as vessels that bear men children, who are then the property of men. The draft constitution spells out equality for women, but as long as Swazi law and custom is supreme, the guarantee is meaningless," a woman attorney in Manzini told IRIN. Swazi custom forces women who have been accused of witchcraft to be evicted from their homes on communal Swazi Nation Land, where four out of five Swazis reside. Women would find no assistance in the new constitution as presently written. Not only women's groups, but human rights organisations and civil libertarians are concerned that the constitution's Bill of Rights, which guarantees equality, freedom of speech and freedom of assembly, is not absolute. What are taken as fundamental human rights in the rest of the world can be overridden by the king in Swaziland. "The constitution is a farce," former prime minister Obed Dlamini told IRIN. Dlamini, president of the banned political party, the Ngwane National Liberatory Congress (NNLC), was nominated this week by his constituency outside Manzini to stand for parliamentary elections. "The constitution-writing exercise was for the benefit of the international community, to fool them that political reform was underway. It has taken seven years, and nothing has changed," Dlamini said. Another NNLC member said: "Yes, the constitution says there is freedom of speech, until someone says something the princes don't want to hear." Despite the long wait for the draft constitution, many Swazis are urging more debate before the document is ratified. By the end of his seventh week of a constitution education exercise, conducted in villages throughout the country, Prince David Dlamini, one of Mswati's brothers, had heard a plethora of complaints and recommendations in the public hearings. Many submissions had an anti-royalty tone bordering on sedition, such as recommendations that the Queen Mother be stripped of political power; princes be forbidden from advising the king; the king's image be removed from national currency to promote democracy; and the polygamous king's growing number of children not be sent to study overseas, but be educated in Swazi schools to ensure improved standards of local education. Political observers said it was unlikely that any of these recommendations, or those offered by the Women in Law and other analyses of the draft constitution, would find their way into a rewritten constitution in the short time remaining before Mswati decrees ratification.