Analysis
The Swaziland
Attorney-General’s announcement that the conflict within the three arms of
government in the kingdom is ‘normal’ and there cannot be a separation of
powers between them is irrelevant because all power rests with the absolute
monarch, King Mswati III.
The political structure in
Swaziland exists only to deliver on the King’s wishes. Political parties are
banned from taking part in elections, the prime minister and government
ministers are appointed by the King and the monarch is above the Constitution.
Attorney-General Sifiso
Khumalo made his comments because for many years there has been conflict in
Swaziland between the three branches of government: the executive, the
legislature and the judiciary. In simple terms, the executive is responsible for
the day-to-day running of government and is headed by the prime minister. The
legislature is parliament made up of the House of Assembly and the Senate and
is responsible for enacting and amending the law and controlling the money
necessary to operate the government. The judiciary interprets and makes
judgements about the law.
Members of Parliament who
make up the legislature have complained from time to time that the Prime
Minister (the senior member of the executive) interferes in their work and he
should keep out of their business.
The Attorney-General wrote
an opinion to the prime minister and this was revealed in detail in the Observer on Saturday (24 March 2018), a
newspaper in effect owned by the King. The newspaper reported, ‘He made it
clear in his opinion that separation of powers is not possible – neither in
theory nor in practice.’
But the Attorney-General
misses the point. Separation of powers is a democratic concept, and Swaziland
is not a democracy. In a constitutional democracy there are three separate
branches each of which has defined abilities
to check the powers of the
others, thereby protecting the
interests of the citizen. There are no ‘citizens’ in Swaziland, everybody is a subject
of the King.
Lawyers can debate amongst
themselves whether or not Section 64 of the 2005 Constitution that states ‘the supreme legislative authority of Swaziland vests in
the King as head of state and shall be exercised in accordance with the
provisions of this Constitution’ confirms the King as an absolute monarch; but in
reality the King’s word is law.
The King chooses the prime
minister, the cabinet and top judges. It is unlikely that he personally spends
much time on this, but he does ensure that those who are chosen accept his
right to rule. There is no secret that those he appoints recognise this. For
example, in 2012 during a long-running and bitter schoolteachers’ strike
the King commanded it should end
and all teachers who had been dismissed during it be reinstated. This was
against the wishes of the cabinet.
However, there was a delay
in implementing the King’s command and it was thought the cabinet was defying
his order. The prime minister
Barnabas Dlamini was anxious to set the record straight. At the time, the Times
Sunday reported him saying government belonged to His Majesty and it took
instructions from him to implement them to the letter, without questioning
them.
He told the newspaper, ‘Government listens when His
Majesty speaks and we will always implement the wishes of the King and the
Queen mother.’
The PM said Cabinet’s position on the matter was that
it respected His Majesty’s position on all matters he spoke about.
He said Cabinet just like the nation, heard what the
King said and his wishes would be implemented.
The prime minister has given here the perfect
description of an absolute monarchy: ‘government belonged to His Majesty and it
took instructions from him to implement them to the letter, without questioning
them’.
The King considers himself to be above the Constitution.
This was clearly demonstrated in October 2012 when the House of Assembly passed a vote of no confidence in the Government with 42 members in favour, six
against and two abstentions. This total was more than the three-fifths of all
members of the House required for S68 (5) of the Constitution to kick in.
This clearly states that
where a resolution of no confidence is passed on the cabinet by three-fifths of
all members of the House the King ‘shall dissolve Cabinet’. The King did not
and instead instructed the House of assembly to vote again and support the
government which it meekly did.
The King also appointed
the PM in 2008 in contravention of S67 (1) of the Constitution that states,
‘the King shall appoint the Prime Minister from among members of the House’,
but Barnabas Dlamini was not a member of the House and had not been elected to
any office. The King simply decided to ignore the Constitution and put his own
man in the job.
The judiciary in Swaziland
are not independent from the King. In 2016 the International
Commission of Jurists said that the King’s absolute monarchy, ‘ultimately is
incompatible with a society based on the rule of law’. It said in a report
called Justice Locked Out: Swaziland’s Rule
of Law Crisis, Swaziland’s Constitution must 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’.
The report was published after 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.’
So there you have it; the three branches of government
are all controlled by the King, there is no need for a separation of powers
because they have no power.
Richard
Rooney
See also
JURISTS:
DEEP FLAWS IN LEGAL SYSTEM
SWAZI
JUDICIAL CRISIS: KING’S WORD IS LAW
http://swazimedia.blogspot.com/2015/05/judicial-crisis-kings-word-is-law.html
GOVT NO-CONFIDENCE VOTE REVERSED
GOVT NO-CONFIDENCE VOTE REVERSED
KING
PROVES CONSTITUTION IS WORTHLESS
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