Times Of Swaziland: CONSTITUTION MATTERS

CONSTITUTION MATTERS
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By Lisa Peterson on 30/10/2018 03:43:00


I am disappointed, disheartened and disturbed that parliamentary appointments
made by the Palace disregard explicit provisions of the country’s
Constitution.
The terms are quite simple: among the members of the House of Assembly appointed
by the King, at least half shall be women: among the 20 for the Senate, at least
eight shall be women. Out of 10 appointees to the House, only three were women.
In the Senate, only seven women were appointed. These shortfalls show that
gender equity is not a priority for the country’s most senior officials, which
means that it will not be a priority for many others in Eswatini’s
male-dominated leadership.
This failure to abide by the terms of the Constitution has an impact not only on
women’s economic, political and social participation, but on all aspects of
the rule of law in this country.  If senior leaders do not need to follow the
rules laid out and agreed to, why should anyone else in the country have to
abide by any rules?
Failure to uphold the rule of law has ramifications far beyond Parliament.
As Eswatini faces a critical fiscal crisis, foreign investment will be an
important component of a multifaceted economic recovery and growth strategy.
Foreign investors are attracted to or deterred by a range of factors, but rule
of law is a major consideration. If the Constitution itself is treated as an
optional guide or a collection of recommendations, this provides little comfort
to investors who seek assurance that contractual matters will be addressed
transparently in accordance with the law.
Beyond the potential impact on foreign direct investment, violation of the basic
framework of governance will likely also have an impact on prospective foreign
assistance mechanisms from the United States.
I have heard emaSwati say that the country is implementing the Constitution in a
deliberate manner. This seems to be code for: “We’ll do things on our own
timeline. Mind your own business.” I can understand the need for some
transition period, but that should imply the country is actively moving to align
outdated laws and proclamations with the Constitution. Twelve years after the
Constitution came into effect, there really should be no excuse for disregarding
constitutionally stipulated minimums.
Following the elections and the repeat of a low number of women being elected to
Parliament, emaSwati are again entering a round of questioning what went wrong.
If you look beyond the usual blaming of women and the cultural signaling from
the Palace, you will see that a major obstacle for women was and will continue
to be finances for campaigns. Because women are as under-represented in the
halls of economic power as they are in political spheres, they cannot draw on
the same campaign resources as men.
Political parties, with their pooled financial resources, could help to start
levelling the playing field for women.
Given the way in which the system is stacked against any liSwati challenging
unconstitutional action, I recognize it is highly unlikely that there will be a
correction to such phenomenal disregard for the Constitution during the tenure
of the 11th Parliament. There are, however, steps the government could take to
address other fundamental governance problems.
The most obvious step now would be to start with serious discussion of the
political party situation. After three rounds of elections in which
international observers have noted that restrictions on the participation of
political parties represent a structural flaw in the elections processes, it
would seem that government should take a hint that it is time to open this
space. As a starting point, government needs to make an explicit statement to
its own people concerning the 1973 Decree.
Former Minister of Justice Edgar Hillary went to Geneva in 2017 and told the
United Nations Human Rights Commission that the 1973 Decree had been repealed by
the Constitution. If this can be said to the outside world, why can it not be
explicitly stated to the Swati nation? And if the Decree has truly been
repealed, why do officials act as if it is still in place?
The Constitution’s language on ‘individual merit as a basis for election or
appointment to public office’ does not actually exclude the possibility of
political parties.
In the privacy of the voting booth, voters are free to choose whichever
candidate they believe will do the best job, regardless of the parties to which
the candidate and the voter belong.
But parties are critical to enabling individuals to join forces around common
issues and pool their resources – intellectual, financial and organizational
– to advance policies and candidates they believe will best serve their
communities. In this moment of severe financial adversity, emaSwati need such
collective community advocacy more than ever. It is time to start a dialogue on
this issue and plot a way forward.