Constitutionally Speaking / Media Alert

Human rights too expensive in Swaziland: MISA advocacy officer

Phakama Shili_Constitutionally Speaking column

“A Swaziland worthy of first-world status can only be facilitated by a people who are patriotic to their country and honest to the sufferings of the nation.”

Phakama Shili, advocacy officer at Swaziland’s Media Institute of Southern Africa (MISA-Swaziland), writes a weekly column called Constitutionally Speaking about human rights and democracy for the daily newspaper Swazi Observer. 

Swazis continue to suffer human rights violations despite a Bill of Rights in the Constitution, which is meant to guarantee the protection our rights.

This may be attributable to factors such as the absence of concrete policies that are aimed to promote and protect human rights. Such polices cannot be developed if there is no political will coming from the authorities, especially the mysterious labadzala (traditional authorities) who yield huge influence in decision-making processes.

The preamble (first paragraph) of the Constitution states that as a people of Swaziland we undertake to start afresh under a framework of a constitutional dispensation. It further provides that it is necessary to blend the good institutions of traditional law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of the nation (paragraph 5).

Paragraph 6 provides the protection of fundamental rights and binds the executive, legislature, judiciary and other organs of government to uphold these rights. Paragraph 7 makes these branches of government the guardians of the Constitution and provides the courts as the ultimate interpreters of the Constitution.

This, therefore, means that every issue arising on the Constitution will be determined by the courts.

However this does not imply that we have to litigate everything in order for the government to comply with the Constitution. The three branches of government although independent play a complementary role to each other. In other words, the executive and the legislature can formulate policies and laws that will operationalise the Constitution in order to ensure the meaningful realisation of the rights that are contained therein.

In this column I seek to demonstrate the expensive nature of human rights in Swaziland by highlighting examples of cases that have been brought to court for determination and other violations that are taking place in the country. I wish to express, therefore, that political will is crucial for the realisation of human rights in the country.

If we go by the letter of the Constitution and approach the court for every matter to enforce our rights then the likes of Sipho Jele and other victims of extrajudicial killings (may their souls rest in peace) would have to rise from the dead in order to claim their right to life. The families of these victims would have to sue government for these atrocities and the economic and social losses they have suffered as a consequence.

Since 2004 the courts have been dealing with cases touching on the Constitution. The first one was the ‘progressives case’ that sought to nullify the constitution (Jan Sithole (N.O) & Others v. The Prime Minister of Swaziland).

In 2008 the Supreme Court had to determine the constitutionality on the composition of the Elections and Boundaries Commission (SCCCO & Others v Elections and Boundaries Commission & Others Civil Case 26/08.)

In 2009, the Supreme Court decided the fate of political parties in Swaziland with a passing statement that equated democracy to beauty (only lies in the eyes of the beholder) was made.

In 2010 ex-miners went to court to claim the right to free primary education for Swazi children. Still, today, that right has not been realised as parents are required to pay top-up fees. In the same year Doo Aphane challenged the constitutionality of the Deeds Registry Act in relation to the registration of immovable property under the names of married women. In this case the government was ordered to amend the law within one year but it took two years to comply with the judgment and further made the promulgation of the amended law a secret.

The citizens and organizations who have managed to use the courts to interpret the Constitution have spent a fortune in legal fees just to force the government to comply with the law. Beyond the courts we have seen a clampdown on freedom of expression and association; the house arrests of TUCOSWA leadership, the quashing of a womens march to protest against gender-based-violence at Siphofaneni; the Luvatsi civic education that was stopped by the police at Sidvokodvo’; prayer meetings that are blocked by the state using the police; and not forgetting the dire consequences of the waya waya teachers strike.

In order to exercise these rights, some citizens go to neighbouring countries because our governments is too paranoid to let them hold debates in our own country. Civil Society prefers to use regional and international mechanisms to discuss human rights issues for their country since the government has no agenda to engage them.

Last week the Prime Minister suggested people approach the courts to protect their rights. This might be well intentioned (and should be true), but it is unrealistic: many Swazis are poor, victims of forced evictions, no access to medical suppliers, without proper shelter, food and jobs — all central to living a life of dignity.

It is not only outdated but misguided in relation to the issue of political parties. This matter was resolved by the Supreme Court (highest court of the land) as earlier mentioned, hence there is no other available remedy at the local level except a genuine national dialogue that should be preceded by extensive civic education on the matter.

Traditional structures and government must create space for honest and positive deliberations for the substantive democratisation of the country instead of going on a dark horse to revise the tinkhundla system.

This process must be inclusive of political parties (including the banned political parties) and all Swazis living in Swaziland and abroad (even those in exile). A Swaziland worthy of first-world status can only be facilitated by a people who are patriotic to their country and honest to the sufferings of the nation. We cannot, therefore, shutdown and proscribe other citizens for having different opinions from what the authorities believe. South Africa did it, Lesotho did it, recently Zimbabwe — through a coalition government — went through a peaceful referendum, and therefore, nothing can stop us from doing the same.

The people of Swaziland, as the king always puts it, “have a right to determine their own destiny”. Let the powers that be identify their role and work with all the people of Swaziland to usher in a genuine democratic constitutional dispensation that will harness the diverse opinions of the people.

To conclude, I would like to invite traditionalists, conservatives and the rest of the people of Swaziland to meditate on paragraph 8 of the preamble in the Constitution. It reads: “whereas as a Nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good governance and the happiness and welfare for ALL our people.”

The article appeared in the Swazi Observer on Thursday June 6, 2013. You will find all of Phakama’s Constitutionally Speaking articles by clicking here

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