By Musa Hlophe Times Sunday (Swaziland) October 21,2012
Here is a quick question for all of us. "What has changed in Swaziland since we decided to have a Constitution?"
Here is the simple and depressing, answer: "Nothing".
I think the only lesson we can take from the farce that surrounds the vote of no confidence is that the constitution means absolutely nothing to the traditional structures, all of the Cabinet, many of our MPs and, I am sorry to say, even some of our judges.
The people on the streets and in the villages know this and are left bewildered and almost hopeless in the face of the arrogance of the powerful and unaccountable elite.
When the draft constitution was being paraded around the country, there was a meeting with some senior princes who were horrified at what it contained.
They were upset that it subjected authorities in the land to rules and regulations and that it was to be supreme over their deliberations and decisions.
It even guided them on who to appoint and what to do.
Prince David, the chair of the Constitutional Drafting Committee, took great care to assure them that, in reality, nothing would change for them. How right he was.
The Constitution of Swaziland exists merely on paper.
It is a convenient shield to show off to our regional and international partners who question the state of democracy and human rights in Swaziland.
However, in practice it does not exist.
A constitution is more than a mere law. It is the founding document of a nation.
In the end, it is a political document that sets out guidelines for how power is divided and how it should be exercised.
It comes alive not in the dry words of the law but in the living examples of how politicians and the powerful behave.
Here in Swaziland, when the rules of the constitution are inconvenient to the wishes of Cabinet and the traditional authorities, they just ignore it.
The constitution is clear on many matters.
It is clear on how many women must be appointed to Parliament and Senate.
It is clear that four extra women MPs must be appointed when there are fewer than 30 per cent of women in Parliament.
It is clear that at least half of Cabinet should be made up of elected members of the House but until recently that was not the case. It is clear about who should be Human Rights Commissioners and Elections and Boundaries Commissioners. It is very clear on what happens after a vote of no confidence: "The King shall dissolve Cabinet."
All of these rules have been ignored.
However, these are the details, the bigger picture is that this government, the first to be appointed under the constitution, has gone out of its way to ignore not only the letter of the constitution but its spirit too. We have a Bill of Rights. Have we seen this government behave any differently?
This week alone saw the newspapers filled with the arrogant and high-handed behaviour of the police.
Have we ever seen a police officer even investigated for abusing his powers?
We know that free speech is simply banned from our TVs and radios and highly restricted in the press. Last year saw one of our best judges in Thomas Masuku sacked for reasons that are obvious to everybody. He was ‘too’ independent.
We have a Human Rights Commission that has never been given a budget to do any real work or employ any staff. We have an Anti-Corruption Commission without Commissioners.
Everybody knows that it is in the nature of politicians to try and grab as much power as possible. This is why Parliament, judges and the independent oversight bodies are supposed to have the ability to call government ministers and civil servants to public account. On the paper of the constitution that is what is said – but what is our reality?
We can see from this month’s vote of no confidence scandal that Prime Minister Sibusiso Dlamini has done to Parliament in 2012 exactly what he did to the judges in 2002.
In November 2002, this Prime Minister declared that the government did not consider itself bound by judgments of the Court of Appeal.
When the PM refused to recognise the legal judgments, the Court of Appeal had the honour and courage to collectively and completely resign.
They forced the nation, and the world, to recognise the deep political trouble that Swaziland was in. They put the needs of the country, their personal honour and their duty to uphold the law before their own personal enrichment. The result was that the people of Swaziland and governments across the world put enough pressure on us to remove the PM from his position.
This month saw the Prime Minister declare that he did not consider himself bound by Parliament’s vote of no confidence.
He made up some legalistic sounding excuses but in the end he is neither a lawyer nor a judge and he certainly does not have the power to overrule a valid vote of no confidence and the constitution.
In the democratic norms I discussed last week, we expect a losing PM to resign.
However, since he did not do the honourable thing, it is up to the MPs to force him.
That is why my real anger is reserved for the parliamentarians.
What have they done? When faced with the ultimate challenge to their only real power, their constitutional and democratic right and their duty to represent the people, what did they do? Did they stand for democracy? Did they think of their mandate to represent the people? Did they look at the scorn with which the PM treated them and stand up to fight for the constitution and the rights of the ordinary Swazi?
We know they did not.
They behaved like the worst sort of cowards – the type that appears to be strong when the going is easy but let us down when times are hard.
They made us believe they were heroes and champions of the people.
They had the numbers and courage to use the constitution to evict a Cabinet that had long lost its nation’s mandate.
The people spoke with courage at Sibaya, Sidla Inhloko and in the streets, the churches and even the shebeens across the country.
The MPs listened and did the remarkable thing - voted out the Cabinet.
I am told that they were then put under an enormous amount of pressure with threats and bribes raining down on them.
However, as the story of Job in the Bible tells us, you know a person’s character not when times are easy but when the going gets tough.
When MPs caved in and passed a motion that claims to overturn the vote of no confidence, they showed us the true nature of Swaziland’s politics – that it is simply not a democracy in any credible sense of the word.
They failed in their first duty to represent the people against the powerful.
Section 68 is the only part of the constitution that allows the people to change their government and the MPs showed us this week that it might as well not be there. I thank them for showing the world that, in reality, the Swaziland was not, is not, and can never be, a democracy under this constitution.
This leaves us with the political reality that the real Constitution of Swaziland is the King’s Proclamation of 1973.
Sources tell me that many in power still consider this to be the real founding document of the Swazi nation. We all know that it has never been repealed.
The closest we have got was when the Attorney General admitted to an international audience that it had been ‘superseded’ but he never went on to explain what that meant in practice. I think we can all now tell. It means that while the constitution might be the newer document, the 1973 decree never went away.
We can now see that the political reality of Swaziland in 2012 is that the 1973 Order still stands. Political parties are not allowed to stand for elections. The traditional authorities decide what is acceptable. Free speech remains a myth. The rights to assembly and association are simply treated as a joke.
Women remain treated as second-class citizens.
The police, army and others, kill, torture and maim whom they choose. The rich get richer while the poor get poorer.
For sure, we must develop democracy with regard to our own history and culture. However, in Swaziland there has simply been no true democratic development.
We have developed the symbols of democracy such as elections, Parliament, judges sitting in courts, even supposedly independent oversight commissions on elections, human rights, political integrity and corruption. But what we have failed to do is develop a culture of democracy and the rule of law where these institutions are respected by the both the traditional authorities and the ordinary Swazis.
In the end, last week’s decision to reverse the vote of no confidence said the powerful in Swaziland do not respect either domestic law or international democratic conventions. It said Swaziland’s constitution was a complete fraud.
Most telling of all is that it said the powerful in our country have absolutely no respect for us, the ordinary people.
My other question to you, dear reader, is this; ‘What are you going to do about it?’
TOP LAW OFFICER DEFIES CONSTITUTION
GOVT NO-CONFIDENCE VOTE REVERSED