PERMANENT STATE OF EMERGENCY

The declaration of a state of emergency, whatever the circumstances, is a very serious undertaking for any country and its citizens even if that country is the epitome of democracy and even worse so in non-democratic dispensations such as that obtaining in this the Kingdom of Eswatini and, therefore, is one decision that ought to be taken with circumspection because it may be ill-conceived.

In functional democracies, while this power to declare a state of emergency is resident in and the prerogative of the head of state, who ordinarily is also the commander-in-chief of the armed forces, there are inbuilt safeguards to ensure that this is not done recklessly on the altar of political expediency to further the cause of an individual, a group or section of society. These safeguards further ensure that a state of emergency is by no means a turnkey for resolving socio-political and economic challenges unless these have the likelihood and potential of causing internal strife or trigger a civil war. They are also to ensure that no government has a blank cheque to declare a state of emergency at any time of its choosing.

Role

In truly democratic countries the citizenry, through civic bodies and organisations, play a pivotal role in not only policing the State’s exercise of authority that it is entrusted with by the people but ensuring and enforcing a culture of human rights. Such activism is usually built on and backed by strong institutions, such as an independent Legislature and Judiciary respectively, which is a far cry from what is obtaining in Eswatini where every institution is subordinated to the Executive arm of government whose power is not derived from the people. 

Rule

Notwithstanding, there also are, on the domestic front, inbuilt safeguards provided by the Constitution - irrespective that the so-called supreme law is not exactly supreme in practice - that ought to be fulfilled for a state of emergency to be effective in law – notwithstanding the obtaining permanent rule of law crisis. In Section 36 (Declaration of emergency) under Chapter III – Protection and Promotion of Fundamental Rights and Freedoms – of the Constitution, subsection (2) in part states … “that proclamation (declaring a state of emergency) shall not be effective in law unless –
(a) Swaziland is at war or circumstances have arisen making imminent a state of war between Swaziland and a foreign State;
(b) There is in Swaziland a natural disaster or imminent threat of a natural disaster; or
(c) There is action taken or immediately threatened by a person or body of persons of such a nature or on so extensive a scale as to be likely to endanger the public safety or to deprive the community or a significant part of that community of suppliers or services essential to the life of the community.”

Subsections (3) and (4) are also germane in checkmating possible abuses of the state of emergency provisions and subsection (3) states; “Copies of the gazette containing the proclamation of a state of emergency shall as soon as practicable and at any rate not later than seven days from date of publication of that proclamation be laid before Parliament by the prime minister.”
Subsection (4) states; “A declaration under subsection (1) if not sooner revoked, shall cease to have effect –
(a) in the case of a declaration made when Parliament is sitting or has been summoned to meet within three days, at the expiration of a period of seven days beginning with the date of publication of the declaration;
(b) in any other case, at the expiration of a period of 21 days beginning with the date of publication of the declaration, unless, before the expiration of that period, the declaration is approved by a resolution passed by a two-thirds majority at a joint sitting of all the members of Senate and the House.”

As I see it, in a non-democracy the unfettered powers that are concomitant with a state of emergency could be abused to deal with political opponents and or in achieving specific objectives of an individual, a group or section of community to the detriment of the larger society. That is why in a country such as Eswatini the declaration of a state of emergency, however, desirous and necessary it may be, has to be met with much apprehension and trepidation by the populace. For not so long ago government, notwithstanding the Bill of Rights enshrined in the Constitution, unleashed its security apparatus in pre-dawn raids on homes of political party leaders under the umbrella of the Political Party Assembly (PPA) for leading public protestations over government’s profligate spending in the face of endemic poverty.

That the complaisant army gets to police the civilian population alongside the normal police during a state of emergency does add to the discomfort irrespective that ordinarily emaSwati have never enjoyed freedom and liberties like in normal and democratic countries. That the military’s primary role, which is probably engraved in every soldier’s psyche, is to ensure the permanency of and to shore up a Byzantine class-based political hegemony meant to keep emaSwati in perpetual subservience compounds the situation. This state of affairs, coupled to the permanent rule of law crisis, validates the perception that the kingdom has been in a state of emergency since the ouster of the Westminster-styled independence Constitution in 1973. We can only pray and hope that we shall emerge from the COVID-19 coronavirus to the normal abnormality that is distinctively Eswatini.

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