20/10/2001
George Bizos

Justice Chaskalson the President of the South African Constitutional Court has said:

“Constitutions are shaped by history. What is appropriate for one country in the light of its history, is not necessarily appropriate in another country with a different history. While nations all have differing histories, the one constant is that the most important legal instrument is the functioning of a nation is the National Constitution.  In order to create a constitution that is viable the public must not only be involved in the process but the constitution must be viewed as being relevant to their society. “

Chief Justice Ismail Mohammed of South Africa observed:

“The constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed, it is a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values binding its people and disciplining its government.”

The need for adopting or making fundamental changes in constitutions may come about by the changing values of a country’s citizens inspired by socio-economic developments in their country and often influenced by the ideas prevailing in the their neighbouring countries, their continent, or the world at large.  An integral part of most, if not all, recently adopted democratic constitutions is a Bill of Rights. The doctrine of fundamental Human Rights has permeated the common and statute law of most democratic countries, even though they may not have written constitutions, or even if they do, they do not define the nature and content of fundamental rights. The United Kingdom falls into this category.

Contrary to popular belief the promotion and protection of Human Rights has been the concern of ancient civilizations, the teaching of most if not all religious faiths, throughout the ages and a part of the culture of many peoples throughout the world, including Africa, where Justices Pius Langa and Yvonne Mokgoro of the South African Constitutional Court tell us that we find in the word ubuntu.  Some doubt has been expressed that a democratic constitution and the adoption of a Bill of Rights may not be suitable for some African states including Swaziland.  They are contradicted the CONSTITUTIVE ACT OF THE AFRICAN UNION, at which 53 African Heads of State were present, including His Majesty the King of Swaziland and unammously declared in the preamble that they were: “DETERMINED to promote and protect human and peoples rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law; “.

The Constitutional Review Commission established by His Majesty Mswati III by Decree No.2 of 1966 reports:

“Almost the entire members of the nation whom we interviewed recommend that the Monarchy continues as it is constituted currently “; and

“There is a (small) minority which recommends that the powers of the Monarchy must be limited.”

In relation to the Bill of Rights and Freedoms it records: "The nation recommends that rights and freedoms which we accept must not conflict with our customs and traditions as the Swazi nation.”

In relation to good governance it reports: “The majority is satisfied with the good and exemplary manner that the Ngwemyama rules the Kingdom.  However, the nation is not satisfied about the way that the government administers the country…”

It records further that: “The government must be the first example in respecting and following the law, in being transparent and in encouraging the rule of law.”; and

“Government must ensure that general elections are free and fair and are held regularly after every five years.”

Although it is stated that “that the courts must continue to work independently…”, other views are recorded which contradict the principle of judicial independence.

In relation to political parties the Commission records and recommends: ”An overwhelming majority of the nation recommends that political parties must remained banned.  They do not want political parties in the kingdom.” and

“There is an insignificant minority which recommends that political parties must be unbanned.” and

“The recommendation is that political parties must remain banned in the Kingdom.  The existing laws regarding this position must be enforced.”

There are other statements emphasising the importance of Swazi history, tradition and culture and in adopting any constitution or Bill of Rights, caution is advised against foreign influences.  The reasons for this caution are to be found in the Proclamation by His Majesty King Sobhuza II of the 16th April 1973 which nullified the Constitution of the Kingdom of Swaziland which commenced on the 6th September 1968 and which

“…permitted the importation into our country of highly undesirable political practices alien, and incompatible with the way of life in our society…”

It appears in the Commissions Report that there is a desire to adopt a written Constitution and Bill of Rights which would entrench the sovereignty of the Monarchy and other National Institutions and Customs; that it should be the Supreme Law of the Land to foster constitutionalism ; to enunciate principles in accordance with which government is to operate to prevent abuse of public authority; and

“protect peoples rights and ensure government of the law and not of men.”

Although there are statements in the Report that seem to suggest that there is a pre-eminent view that Monarchy and Democracy are incompatible, this is clearly not so.  Monarchies have flourished and enjoyed greater loyalty when the King or Queen agreed to reign and under their guidance allowed democratically elected representatives to govern in their name.  Those who resisted change were deposed.  Constitutional Monarchs in United Kingdom, most of the Nordic Countries, the Netherlands, Belgium and Spain are good examples to be followed.  Lest it be thought that Constitutional Monarchies are confined to Europe regard should be had that they are equally successful in Japan, Nepal and Thailand.  A main cause for the abolition of the Monarchy in France, Italy, Greece and other European countries was the failure to convert themselves to a Constitutional Monarchy.  The same happened in a number of countries in the Middle East and in Africa, in Egypt and Ethiopia.  Significantly of the 53 Heads of State present at the adoption of the Constitutive Act of the African Union in February 2001, 50 were represented by their President, as the Head of State.  However, how many more Monarchs might have been there had colonialism not systematically subverted the institution of Royalty in Africa?.

The main reason for the greater respect and loyalty shown to Constitutional Monarchs is that they are removed from the hurly hurly of political controversy.  The wrath of the people for mistakes is directed against the Prime Minister and the government.  The Monarch is the Head of State to both whom those in government and apportion remain loyal.

I would agree respectfully with the Commission that the Swazi Constitution can not be written in a manner dictated by foreigners.   If authority were needed for the proposition it is to be found in the statements of Justices Chaskalson and Mohammed quoted above.  I do not however understand the Commission to mean that His Majesty and the Swazi people as a whole do not want to have regard to most of the principles generally accepted as essential in a Democratic Constitution.  Swaziland is a member of SADEC, the African Union, the Commonwealth and the United Nations.  Swaziland’s acceptance participation and reputation will to a greater or lesser extent depend on the principles, policies and practices of the Supra national Bodies.  Swaziland’s Bill of Rights cannot be out of tune with the UN’s Universal Declaration of Rights of 1948, the African Charter on Human and Peoples Rights of 1981 nor the resolutions of the Commonwealth and SADEC adopted from time to time.

A Constitution which does not provide for periodic free and fair elections for a parliament of representatives elected as individuals or as members of a party is unlikely to be regarded as democratic; nor if it does not provide for strict separation of powers, to the legislature, the executive and an independent judiciary; nor will a Bill of Rights which does not guarantee equality for all its citizens.

Certain prerogatives usually accorded to a Monarch as the Head of State may be reserved for His Majesty but no one may be above the law nor can the jurisdiction of the courts be excluded.  The right of freedom of expression particularly of the media should be protected.  Traditional Institutions, practices and customary law are obviously important pillars supporting the Swazi Nation inherently imbued with democratic principles but which may require modification to comply with the right of equality particularly relating to women.

We are told at the Lancaster House Constitution imposed on the Swazis was the main reason for its failure.

A Constitution is not likely to be embraced if the vast majority of the people either   personally or through their legitimate representatives have played a part in its making. The importance of obtaining substantial consensus is evidenced by the South African experience.  More than twenty Liberation Movements, parties or groups came together despite enmity and mistrust amongst them. And yet they agreed to an Interim Constitution by a substantial majority which was adopted by the Tricameral Parliament .  It served as the country’s basic law and prepared the way for the April 1994 election.  As matter of principle the main Liberation Movement in the country insisted that the final Constitution had to be adopted by a Constituent Assembly after free and fair elections in which all political parties, large and small, would take part.  Almost twenty parties took part in the election but only six received more than 1% of the vote to enable them to be represented in the Constituent Assembly and parliament.  The final constitution and Bill of Rights were adopted by more than 80% of the elected representatives and by agreement a government of National unity was formed the inclusive process enabled South Africans to subscribe to the statement in the Preamble of the Constitution.

“We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-

Heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which the
government is based on the will of the people and every citizen is
equally protected by law;

Improve the quality of life of all citizens and free the potential
of each person; and

Build a united democratic South Africa able to take its rightful
Place as a sovereign state in the family of nations.

May God protect our people.

Nkosi Sikelele’ iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.”