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.
JURISTS: DEEP FLAWS IN LEGAL SYSTEM
SWAZI JUDICIAL CRISIS: KING’S WORD IS LAW
GOVT NO-CONFIDENCE VOTE REVERSED
GOVT NO-CONFIDENCE VOTE REVERSED
KING PROVES CONSTITUTION IS WORTHLESS
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