Amend, not violate, the constitution

The national constitution was heralded as one of the best in some quarters – an exception being its exclusion of political parties from the nation’s body politic – yet in its eight years of existence it probably competes with none when it comes to its violation by the very political institutions that should be in the frontline of its defence.

What good is the best constitution – which the Swazi constitution is definitely not – when it is not respected even by those in leadership?
When the national charter was adopted on July 26, 2005 at Ludzidzini Royal Cattle Byre at the end of a marathon process, it embodied a quantum leap from the darkness of the Stone Age of a backward nation into the sunshine of a bright future for a modern country.

After the short-lived post-independence constitutional epoch that ended abruptly in 1973 when the country was thrust back into the dark ages, the dawn of a new constitutional era in 2005 was welcomed with much euphoria from across the nation – of course excepting proponents of multiparty democracy who continue to grieve to this day for being excluded from the constitution making process.

Here at last the Kingdom of Eswatini had arrived to rejoin the civilized and modern world as an equal with the adoption of the national constitution. Finally there was a promise of predictability in the operations of the state and its organs as enshrined in the supreme law of the land, a departure from a dark period in which the nation was subjugated by oppressive laws that ensured conformity to the unpredictable machinations of the leadership. But the dawn of a new beginning has all but vanished given the now regular and periodic violations of the national charter that is often relegated to the sidelines if the powers that be want to achieve their objectives, which are invariably at variance with national interests that are self-serving. 

Last year abounded with typical cases in which the constitution was deliberately undermined. In fact under the tenure of the outgoing government the constitution was constantly under siege to the extent that matters that should have been left for the courts to interpret and settle were extra-judiciary settled by the Cabinet against the tenets of the constitution. The latest in a long list of violations of the national constitution is of course the retaining of the self-same Cabinet in office after the dissolution of Parliament, which is a contradiction of the constitution. Section 68 (1) (c) and (4) (c) is unambiguous when it comes to the positions of the Prime Minister and Cabinet Ministers after the dissolution of Parliament.

Vacant

Section 68 (1) (c) states: The office of the Prime Minister shall become vacant where: the Prime Minister ceases to be a member of the House, while Section 68 (4) (c) states: The office of a Minister shall become vacant where: the Minister ceases to be a Member of Parliament.

As I see it, this apparent flagrant breach of the constitution could create serious legal pitfalls for government in future when some decisions of Cabinet Ministers, collectively and individually, could be challenged as they no longer have the authority bequeathed by the constitution. For in all intents and purposes the Cabinet no longer derives its authority from the constitution because the so-called supreme law of the land does not provide for Cabinet of Ministers in the absence of a Parliament.

Additionally, the integrity of this particular Cabinet remains questionable to date. In short, this Cabinet cannot be trusted with anything. And now without Parliament’s oversight role on behalf of the people, it is open season for Cabinet Ministers to do as they please, which includes breaking and/or abusing the law to achieve their selfish ends. If they could abuse their office to acquire Crown land at highly discounted prices even under the watch of Parliament, it is unimaginable what they are capable of in the absence of Parliament hence some are said to be fiddling with procurement procedures in order to benefit their cronies in the corporate and private sector. It is anybody’s guess that they stand to benefit financially once they are briefly out of office to allow the election process to run its course.

But as I see it, the most serious negative fallout from the reckless violations of the constitution by those entrusted with the reins of political power is on the integrity of the Government of the Kingdom of Eswatini. Ultimately no one would want to do business with what appears to be a renegade state just as no individual could enter into a contract with a known criminal. And with capital being such a coward we could expect diminished foreign direct investment into the country. Of course this would play itself in the vicious cycle of slowed economic activity and, therefore, a stagnant economy whose ripple effects would be increased unemployment and, by progression, poverty.

Yet the way political power is skewed there should be no need to violate the constitution. It should be a matter of the ruling elite causing the amendment of the constitution whenever such an urge arises, even it were on a daily basis. That way the constitution would not be breached with such reckless abandon as the case is right now because the country would transit into the league of banana republics, where it would be beyond the state of being embarrassed.

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