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Swaziland Newsletter No. 491

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  • Richard Rooney
    Swaziland Newsletter No. 491 18 August 2017 Newsfrom and about Swaziland, compiled by Africa Contact, Denmark (www.afrika.dk)in collaboration with Swazi Media
    Message 1 of 1 , Aug 18, 2017
      Swaziland Newsletter No. 491 18 August 2017
      News from and about Swaziland, compiled by Africa Contact, Denmark (www.afrika.dk) in collaboration with Swazi Media Commentary (www.swazimedia.blogspot.com), and sent to all with an interest in Swaziland - free of charge.
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      Swazi King wrong on constitution
      Swazi Media Commentary, 17 August 2017
      King Mswati III, Swaziland’s absolute monarch, mislead when he told a television reporter that the constitution in his kingdom was the will of the people.

      In fact at the time the 2005 constitution was being drafted, the International Bar Association, a group invited by King Mswati to make comments, called it ‘flawed’ and ‘a fraud’.

      King Mswati said in an interview with the South Africa Broadcasting Corporation (SABC) uploaded to the Internet on Monday (14 August 2017), ‘When we created the constitution, this constitution which went around the people of this country, every Swazi participated... was invited to come make a submission in terms of how you want to see your constitution of this country, even when the constitution was drafted before it was actually adopted.  It also was to give back to the nation, to read, and everyone was able to be given a chance to make submissions and to comment... this was a process that took some years, so we finally have a product of after nine years of consultation.’
      He also said Swaziland was a democratic nation ‘in the sense that it is people driven. It is not a one person state. It is the people saying this is how we want to be governed.’

      The King and his supporters have maintained for years that the Swazi Constitution is legitimate and the will of the people. However, the International Bar Association , a group of experienced lawyers, was called in by King Mswati III in 2003 to comment on the first draft of the constitution. It called the process ‘flawed’ and reported that one critic went so far as to call it a ‘fraud’.  The resulting report called Striving for Democratic Governance was stark in its criticism of both the process of ‘consultation’ on the constitution and the wording of the document itself.

      One of the IBA’s main conclusions was that the ‘position and powers’ of some ‘stakeholders’ in Swaziland ‘including the Monarchy’ are in effect ‘actually placed above the Constitution and its principles’.

      The IBA studied what was going on during the drafting process, which was controlled by the Constitutional Review Commission (CRC).
      The CRC did not allow the judiciary or NGOs to contribute to the drafting process and ensured that individual Swazi people were interviewed in the presence of their chiefs. As a result the ‘overwhelming’ majority wanted the King to keep all his powers and wanted the position of traditional advisers to the King to be strengthened. They also wanted Swazi customs to have supremacy over any international rights obligations.

      The IBA report states, ‘The terms of reference of the Commission did not allow expressly for group submissions, and as apparently they were not entertained, NGOs per se were effectively prevented from commenting. The IBA panel considers that, unfortunately, this in itself deprived the CRC of much valuable input.’

      The IBA report goes on, ‘The CRC also faced a number of practical problems. There were disputes between local chiefs, collecting views during the rainy season in Swaziland was difficult, and several Commission members resigned.

      ‘The extent to which individual Swazis were consulted has also been questioned. The CRC did not keep records of the submissions it received and media coverage of submissions was apparently banned.

      ‘There is therefore no formal record of how Swazi citizens presented their views and of what in fact they said to the CRC.
      ‘Furthermore, information was elicited in a highly charged atmosphere. Individuals were reportedly asked, in the presence of chiefs, whether they wanted to retain the King and whether they preferred political parties.

      ‘The CRC report states that “there is a small minority which recommends that the powers of the monarchy must be limited” and continued that “an overwhelming majority of the nation recommends that political parties must be banned”.

      ‘The report concludes that “an overwhelming majority recommends that the system of Government based on the Tinkhundla must continue” and, as well as the ban on political parties being maintained, that the executive powers of the King should be maintained, the position of traditional advisers to the King strengthened, and Swazi customs have supremacy over any contrary international rights obligations.’

      In November 2007 the Swaziland High Court ruled that documents pertaining to the drafting process could not be made available for public scrutiny, thereby allowing the ruling elite to maintain the fiction of full consultation.

      Under the constitution the monarchy remains above the law and political parties are banned.

      Many organisations have called for Swaziland’s constitution to be rewritten to make the kingdom more democratic.

      In July 2008 the European Union declined an invitation to monitor the Swaziland national election later that year because, it said, it was clear the kingdom was not a democracy. Later, it suggested a wholesale review of the constitution was in order.

      In November 2008 the Commonwealth Expert Team, which had monitored the election called for a review because the elections were not credible since political parties were banned in Swaziland. It said that the review ‘should be carried out through a process of full consultation with Swazi political organisations and civil society (possibly with the support of constitutional experts).’

      After the most recent national election in 2013, the African Union (AU) mission that observed it called for fundamental changes in the kingdom to ensure people have freedom of speech and of assembly. The AU said the Swaziland Constitution guaranteed ‘fundamental rights and freedoms including the rights to freedom of association’, but in practice ‘rights with regard to political assembly and association are not fully enjoyed’. The AU said this was because political parties were not allowed to contest elections.

      The AU urged Swaziland to review the Constitution, especially in the areas of ‘freedoms of conscience, expression, peaceful assembly, association and movement as well as international principles for free and fair elections and participation in electoral process’.
      In 2015, following a visit to Swaziland, a Commonwealth mission renewed its call for the constitution to be reviewed so the kingdom could move toward democracy.

      In its report on the 2013 elections, the Commonwealth observers recommended that measures be put in place to ensure separation of powers between the government, parliament and the courts so that Swaziland was in line with its international commitments.

      They also called on the Swaziland Constitution to be ‘revisited’.

      The report stated, ‘This should ideally be carried out through a fully inclusive, consultative process with all Swazi political organisations and civil society (needed, with the help of constitutional experts), to harmonise those provisions which are in conflict. The aim is to ensure that Swaziland’s commitment to political pluralism is unequivocal.’

      It also recommended that a law be passed to allow for political parties to take part in elections, ‘so as to give full effect to the letter and spirit of Section 25 of the Constitution, and in accordance with Swaziland’s commitment to its regional and international commitments’.

      See also

      Swazi policemen ‘rape sex workers’
      Swazi Media Commentary, 15 August 2017
      Swaziland’s police chief Isaac Magagula has denied his officers use sex workers without paying. His comment came when he said prostitutes were an ‘infestation of our cities’.

      Police have been clamping down against female sex workers across the kingdom.
      At least 30 have appeared in court and been given jail sentences or fines. 

      In a statement published in Swazi media on Sunday (13 August 2017) National Commissioner of Police Isaac Magagula said it was wrong to say that sex workers, ‘are targeted because of sour grapes that police officers are failing to pay for services rendered’.

      He did not state that police officers did not use the services of prostitutes. Prostitution is illegal in Swaziland.

      There is a lot of evidence that policeman in Swaziland use prostitutes. One of the few surveys done on female sex workers listed police officers among their ‘commonest clients.’

      Separately, in 2010, Alec Lushaba, then editor of the Weekend Observer newspaper in Swaziland, wrote, ‘In a country known for its skyrocketing HIV and AIDS rates, conservatism, Christianity and traditional mores, it may come as a surprise that the abuse and rape of sex workers in Swaziland at the hands of police is a growing and widespread problem.

      ‘Sex work, known as one of the oldest trades, is still illegal in the country, yet sex workers have reported targeted campaigns of rape and violence at the hands of Swazi police.’

      In an article published by Gender Links, Lushaba wrote, ‘A recent report by Swaziland Action Group Against Abuse (SWAAGA), in partnership with other local organisations, noted: “It is not just that they are arrested, to a greater or lesser degree they are forced by police to comply with demands for free sex or sex in exchange for not being arrested.”

      ‘27 percent of the sex workers have at some point been arrested by state police for loitering. 60 percent of those arrested end up being sexually and physically abused by the police.’

      See also

      Over 19,000 face imminent famine
      By Thembinkosi Mavimbela Times of Swaziland 15 August 2017

      MBABANE – More than 19 000 people in the country are staring the dark reality of famine and in need of urgent food support.
      These were the findings of the Integrated Food Security Phase Classification (IPC), which was issued in July 1, 2017.

      The IPC states that the most affected are the Lubombo and Shiselweni Regions, with the former having about 9 850 people in need of urgent food assistance. About 33 per cent of households in that region did not harvest, and this has resulted in the availability of just 36 per cent of food that would last less than two months. In the two regions, about one household in four would not meet dietary energy requirements at all times from July to September 2017.

      No household in the Hhohho Region is in need of immediate food assistance and this is unique to this region, as all others have a significant number of people in need of it.

      The report reads that the most affected population groups are the very poor and poor who have lost their crops and have seen their income reduced due to chronic illnesses or death of breadwinners, and loss of employment. The reduced production in the sugar cane industry has contributed to job losses. Some of the affected are seasonal workers. Ministry of Agriculture Principal Secretary Bongani Masuku concurred with the report as he stated that the drought that hit the country in the 2015/2016 period left many seasonal workers without employment, as there was a period where there was nothing in some sugar cane fields.

      Masuku added that the recovery was not as rapid as expected but they were still optimistic about the whole situation. Although job losses were rife during the drought season, there were none reported in Masuku’s ministry, specifically due to the rough weather conditions. He said there were no job losses although a number of cattle had died.

      “We know that in other countries, many people lost their jobs during the drought but not in Swaziland,” said Masuku referring to civil servants.

      A shocking revelation was made in the Shiselweni Region, where it was found that 150 000 people have less than three months of food stock available. This is despite the region having about 80 per cent of land suitable for growing crops. The report states that about 50 000 people in that region rely on less expensive food, while about 40 000 and 32 000 relied on borrowed food or were helped by relatives.

      “The poor and very poor groups account for 62 per cent of the population of the region,” reads the report.

      The report states that there are about 200 000 people in that region.

      A looming food crisis seems to be closing in on other residents of the Shiselweni Region as less than 30 000 have food that will last four to 12 months. According to the report, the national food balance sheet reflects that the country will have a shortfall of 129 500 tonnes which will be covered through imports and food aid. However, there is a glimmer of hope as the report states that the region’s market structure, including food supply chain and value chain, is well functioning and will help in ensuring food availability.

      No rule of law in Swaziland
      Swazi Media Commentary, 14 August 2017
      The European Union Ambassador to Swaziland Nicola Bellomo has severely criticised the legal system in the kingdom ruled by autocratic monarch King Mswati III. He said even a child could be made a judge.

      Bellomo who is soon to leave Swaziland told the Nation Magazine the rule of law did not prevail in Swaziland.

      The Nation, an independent magazine of comment in a kingdom where censorship and self-censorship is rife, reported (August 2017), ‘The judiciary in this country has yet to find its footing and earn the respect it once had. It is a mess, right now. But, at least, there’s an acknowledgement that there is still a lot of work to do to get the country's judicial system on the right track. A country that has the kind of judicial system we have, where even a child can become a judge, cannot attract investment.’

      The Nation called Bellomo’s comments ‘a scathing attack at the judiciary’.

      The magazine reported Bellomo saying, ‘On the rule of law, there are structural problems beyond the political issues. If you have courts with ten judges who can hardly meet the expectations of the country, then you have structural issues.

      ‘Then of course you have issues with the judges, like the one who was allowed to sit on the bench and yet did not qualify. That is something shocking for a rule of law country.’

      Bellomo is not the first to draw attention to Swaziland’s broken legal system. In February 2016, the International Commission of Jurists (ICJ) reported King Mswati III’s absolute monarchy in Swaziland ‘ultimately is incompatible with a society based on the rule of law’

      The report, Justice Locked Out: Swaziland’s Rule of Law Crisis, called on Swaziland’s Constitution to be amended to bring it in line ‘with regional and universal international law and standards, in particular on the separation of powers and respect for judicial independence.’

      An international mission investigated Swaziland following the attempted arrest and the impeachment of former Chief Justice Michael Ramodibedi and the arrest of the Minister of Justice Sibusiso Shongwe, two High Court judges Mpendulo Simelane and Jacobus Annandale and High Court Registrar Fikile Nhlabatsi in April 2015.

      The report stated the judicial crisis was ‘part of a worrying trend of repeated interference by the Executive and of the Judiciary’s inability to defend its independence, exacerbated by apparent strife within the ruling authorities of Swaziland. 

      ‘Swaziland’s Constitution, while providing for judicial independence in principle, does not contain the necessary safeguards to guarantee it. Overall, the legislative and regulatory framework falls short of international law and standards, including African regional standards.’

      It added, ‘The mission found that some members of the Judiciary have exercised their mandate with a lack of integrity and professionalism. In particular, former Chief Justice Ramodibedi failed to protect and defend the institutional independence of the Judiciary, and played a reprehensible role in undermining both the institutional independence of the Judiciary and that of individual judges in Swaziland.

      ‘He also presided over, or was involved in the case allocation of, legal proceedings in which he had a personal interest or in which he acted at the apparent behest of members of the Executive, further undermining the independence and impartiality of the Judiciary. 

      ‘Based upon its independent research, including its consultations with various stakeholders, the fact-finding mission determined that this latest crisis has served to expose already existing divisions within and between the Judiciary and the Executive.  The consequence has been an abuse of the justice system to settle political scores, further damaging the independence of the Judiciary in the process. 

      ‘Overall, the events that triggered the international fact-finding mission are both a reflection of a systemic crisis and potentially a contributing factor to its deepening further. In ligh

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