A constitution flouted daily
The Swaziland Constitution is over three years old and there are certain is sues and or commissions that have not been implemented or operationalised.
The Constitution of the Kingdom of Swaziland Act, 2005 was duly gazetted and issued in the Swaziland Government Gazette Extraordinary, Vol III Mbabane, Tuesday July 26th, 2005 No 73.
There is nothing in it that suggests any other date operationalising it besides the gazetted date. Chapter III tabulates the Protection and Promotion of Fundamental Rights and Freedoms. Unfortunately, these rights and freedoms must conform to the Universal Declaration of the United Nations (UN) Human Rights of the December 10, 1948. Swaziland is a full member of the UN body and has agreed to uphold all UN Declarations without exceptions.
It is possible though to have a constitution without the Bill of Rights, in that case, government says that it doesn't care about the human element of people. These constitutions and government are the ones coming from coup de tats, military or by conning leaders who are opposed to democracy.
The April 12, 1973 decree did not have the Bill of Rights, but served as the Constitution of the Kingdom of Swaziland between that time and July 26, 2005. The operation of government in that period is now history.
By the way, what happened to the April 12, 1973 decree because it was never repealed or is it somewhere in the ocean looking for an opportune time to pounce on Swaziland when the present constitution goes into hibernation?
Then, if there is a government and a constitution that embraces the Bill of Rights, government is obliged to defend and promote the fundamental rights and freedom of the citizens.
Government defends us against us and promotes human rights and freedom within us through civic education and in crafting relevant laws to the said vision and mission. Human rights issues are taken before any other activities because government is there for the sake of the people and their social needs.
Does the Government of Swaziland take the Bill of Rights seriously or is it treated like a non-governmental issue fit to be discussed by human rights advocates who are said to be hell bent on starting trouble for ‘peaceful’ Swaziland or seen as a foreign ideology not suitable for Swazis?
If the Swaziland government was concerned about the Bill of Rights, would it have appointed the commissioners of the Human Rights Commission, drafted relevant laws for the smooth running of the commission and section 79 of the Constitution amended to be in line with the spirit of the Bill of Rights?
With the presence of the Human Rights Commission, the Suppression of Terrorism Act, 2008 would not have come out in this format, where it is rejected left and right as draconian and that it is infringing on the rights and freedoms as enshrined in Chapter III of the Constitution.
It appears that those who crafted and debated the Bill didn’t learn anything from the Industrial Relations Act, 1996, how it was abandoned, the birth of Industrial Relations Act, 2000 and the amendment thereafter.
However, let us look at the dictates of the Constitution on the delays of implementation of constitutional rights.
Clause 163(1) says: "There shall be established within a year of the first meeting of Parliament after the commencement of this, a Commission on Human Rights and Public Administration in this chapter referred to as ‘The Commission’."
We would not be coming out with laws that violate the fundamental rights and freedoms had such a commission been in place because Clause 164(1a) says it is meant to: "Investigate complaints concerning alleged violations of fundamental rights and freedom under this Constitution."
As one reads this article, it is hoped that the fruits of free education in public schools for the first grade to seven are enjoyed. Clause 29(6) says: "Every Swazi child shall within three years of the commencement of this Constitution have the right to free education in public schools at least up to the end of primary school, beginning with the first grade."
It is only a pity that Parliament still fails to enact other laws to enhance the other rights of the child as stated in Clause 29(7a-d).
Furthermore, the representation of women in the House of Assembly is less than thirty percent and members of parliament have done nothing about against the dictates of the Constitution.
Clause 86(1) says: "Where at the first meeting of the House after any general election it appears that female members of Parliament will not constitute at least 30 percent of the total membership of parliament, then, and only then, the provisions of the section shall apply."
The House of Assembly had its first meeting when members were sworn-in and elected a speaker.
How will the House now carry out this task because it has had its first meeting? This will remain a mystery and the House is unconstitutionally constituted. In addition, clause 95(3a) says: "At the instance of the Chairman of the Elections and Boundaries Commission, the elected members from each region shall on their first meeting nominate not less than three and not more than five women from each region qualified to be members of Parliament."
The first meeting means the same explained above. The Constitution is being flouted by its architects with impunity.
As if this is not enough, certain Bills that have matters regulated by Swazi Law and Custom must be referred to the Council of Chiefs by Senate.
Clause 115(2) says: "Where a Bill, in terms of this section, is duly introduced, the Senate shall not proceed to the second reading of that Bill until…". Senators must be clear about procedures of handling such Bills. Clause 115 (2a) says: "A copy of that Bill has been sent by the president to the Council of Chiefs."
The Council of Chiefs has not been constituted. Clause 251(1) says: "There shall be a Council of Chiefs which shall be composed of 12 chiefs drawn from the four regions of the kingdom appointed by the Ingwenyama on a rotational basis."
This Council of Chiefs also advises the king on other matters including chieftaincy disputes. Clause 251(3a) says: "Advising the king on customary issues and any matter relating to or affecting chieftaincy including chieftaincy disputes."
Liqoqo’s role overlaps to the Council of Chiefs and this is bound to cause problems and confusion. How many Bills are likely to be stifled and delayed by the Council of Chiefs? Your guess is as good as mine. This council will be mingling with Parliament work.
However, if we elect and appoint people into these positions, we must think beyond the Swazi interest, needs and expectations. They must be of benefit to our neighbours, Southern African Development Community (SADC), African Union (AU), International Bodies, Organisations and Communities.
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