‘DO WE PRACTICE DEMOCRACY?’

MBABANE – The gloves are off between Human Rights lawyer Thulani Maseko and government in the battle over the country’s name change.

Maseko contended that if it were true that the Kingdom of Eswatini was democratic, it meant that when decisions such as this (name change) were made, it should have been taken in a democratic way. In his answering affidavit, Maseko averred that democracy, by its nature incorporated the right to participate in decision-making process.

“The rights to freedom of expression, which guarantees the right to public participation, can only be restricted in so far as reasonably justifiable in a democratic society,” submitted Maseko

Maseko contended that changing the name of the country without public participation was prejudicial to the rule of law and constitutionalism.
According to the human rights lawyer, it was respect for the rule of law that guaranteed members of the public rights to participate in the decision to change the name of the country.

He told the court that the country’s name change was prejudicial in at least two aspects.
“The change of name of the country was done without public involvement, public consultations and public participation,” he argued
Maseko told the court that members of the public, were deprived of the basic right to take part in the crucial decision. 

He further argued that even Parliament as the representative of the people in terms of Section 84(1) of the Constitution, was not involved in the decision, yet the power vested in it in terms of Section 106 of the Constitution.

Maseko averred that, had the process of changing the name done constitutionally, the applicants would have participated in the legislative process through Parliament.

“To put this matter beyond doubt, we can demonstrate that when the legislative process to amend the Suppression of Terrorism Act and to repeal the Public Order Act, members of the public whether as natural of legal persons, participated in the process,” he argued.
Maseko said the right to participation was an essential element of a democratic society and the country espoused itself as one.

According to the human rights lawyer, democracy as enshrined in the Constitution, incorporated a labyrinth of rights, such as freedom of expression and opinion. He argued that, in changing the name of the country, members of the public ought to have been heard in accordance with the provisions of Section 84(1) as read with Section 24 of the Constitution.

Maseko also disputed the submission by government that the name change was reverting to the country’s original name. He said government did not place any evidence to show that what it alleged was true.
Maseko submitted that it was a principle of law that he who alleges must prove.

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