IN TERMS OF SECTION 95 OF THE CONSTITUTION

Sir,

  The House of Assembly consists of not more than 76 members, comprising 60 members elected from Tinkhundla constituencies based on one or more chiefdoms (Section 80) and 10 members nominated by the King. Four female members specially elected from the four regions but this is done only if after a general election less than 30 per cent of the members elected ordinarily are female (see Section 86).

Unfortunately the current Parliament did not elect the females as per the dictates of the Constitution. This means Swaziland has a Constitution but not one that belongs to the people. Sitawentani vele!!! Imfucuta itawentani vele!!! We do not own the constitution.

Moreover, judicial power vests in the courts, the independence of the Judiciary is critical for the separation of powers. There would not be any separation of powers without the independence of the Judiciary. As stated by Rabkin, the most fundamental aspect of the separation of powers is that there should be a separation between the Judiciary and the other two political branches of government. The independence of the Judiciary means that it should not be subordinated to the authority of any branch of government but only subject to the Constitution and the law.

It should be impartial and perform its functions without fear or favour. This does not mean that the Executive is not involved in the appointment of the members of the Judiciary or that the judges are not accountable. In every country, judges are appointed by the head of State based on the recommendation by the judges themselves as members of the independent judicial commission. This is part of the checks and balances affecting the Judiciary. While on the other hand the judges are controlled and accountable to the people. Nowhere in the World, did the people establish a government of the judges.

The independence of the Judiciary is critical for constitutionalism, the separation of powers and respect for human rights and the rule of law. Closely related to the foregoing, the separation of powers is important in a functioning democracy to divide governmental power between different organs of the State in order to guard against the centralisation of power which may lead to abuses of power. This is known as the separation of powers doctrine. The aim as the Constitution of Swaziland has done, is to separate the functions of the three branches of government the Executive, the Legislature and the Judiciary so that no single branch is able to operate alone, assume complete State control and amass centralised power. While each branch performs a number of different functions, each also plays a watchdog role in respect of the other. This helps to ensure that public power is exercised in a manner that is accountable to the general public and in accordance with the Constitution. Put differently with sadness, Swaziland with a Constitution while Swazis are without a constitution, sadly the actual exercise of power by the monarch means that there is no effective separation of powers in the country.

Needless to say, Swazis remain without a Constitution in that the issue of Swazi Nation land which is clearly articulated in Section 211 of the Constitution (2006) and reference is made with regard to the decree of 1973, that land shall continue to vest in iNgwenyama in trust for the Swazi Nation as it vested on the April, 12, 1973.

From this, a conclusion can be reached that the land policy will not be formulated anytime soon. Swazis are still going to experience more evictions in the presence of the civil society, government and the church which is made up of pretenders who are failing to defend people’s rights in particular the constitutional right.

In my last article, I made it clear that in order to fully meet all the requirements of a government of the people, by the people and for the people, politics in a democracy need to satisfy certain conditions. Politics require ideas and values that set the goals and standards of a political organisation. Freedom, justice and solidarity are such principles that can guide the political organisation of any society. Politics require social organisations that collect interests, aggregate and communicate them to the political and governmental institutions.

Political parties, but also business and workers associations as well as other non-governmental organisations of the civil society, are such organisations that collect and aggregate social interests. Politics also require institutions that collect proposals for the organisation of society and then represent, discuss, decide and implement them. Unfortunately Swazi people are still far from realising true politics. 

Our Constitution is a smokescreen that is used by our authorities to dispel the perception that not all is well in Swaziland. Swaziland is at crossroads between tradition and modern practises. This has resulted in a conflict between the application of democratic principles and the preservation of Swazi law and custom.

Mbongeni Mkhonta

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