Sunday, July 22, 2018

Court Confirms Political Parties Cannot Compete in Swaziland’s Election

The High Court in Swaziland / Eswatini has confirmed that political parties will not be allowed to contest the national election.

It said the kingdom’s Supreme Court had ruled on the matter in 2009 and nothing had changed since.

The Swaziland Democratic Party (SWADEPA) had asked that it be allowed to contest the election that is presently taking place in Swaziland where King Mswati III rules as one of the world’s last absolute monarchs. The case was heard on Friday (20 July 2018).

According to the Swaziland Constitution that came into effect in 2006 under the tinkhundla system of government people may only stand for election as individuals However, the constitution also allows for freedom of association which can be interpreted as permission to form political parties.

In 2009, the Supreme Court ruled that excluding political parties from the electoral process did not constitute a violation of freedom of association as guaranteed by article 25 of the Swaziland constitution. 

The judges said people could be members of a political party and they could stand as individuals and then once elected link up as a group. Justice Thomas Masuku in a dissenting judgement said the idea that it was possible to get elected as an individual basis and then link up with others who share similar views was a bit like a boy who intends to enrol in a school which is exclusively a girls’ school. 

‘To avoid being detected at admission, and in violation of the school requirements, he titivates himself, paints his hair and does all necessary preparations to be regarded and perceived as a girl, with hope that once inside, he will show his true colours and identity.’

At the time the International Commission of Jurists (ICJ) said the Swaziland Supreme Court failed to uphold fundamental rights which were constitutionally guaranteed. 

ICJ in a statement said the Swazi Supreme Court’s ‘restrictive approach seriously violates the freedom of association and restrains the scope of freedom of expression and the right to participate in public affairs. 

‘As an essential component of the right protected under article 25 of the Swaziland Bill of Rights, the freedom to form and join political parties is protected by article 10 of the African Charter on Human and Peoples’ Rights and article 22 of the International Covenant on Civil and Political Rights, to which Swaziland is a State Party.’

In that respect, ‘Swaziland courts have an obligation to give full effect to the rights and freedoms guaranteed in those instruments.’

The ICJ is not the only internationally-respected organisation to call for political parties to be made legal. For years observers have said that Swaziland elections which are held every five years are not free and fair because political parties cannot take part.

After the last election in 2013 the official report of the Commonwealth Observer Mission called for a review of the kingdom’s constitution. It said members of parliament ‘continue to have severely limited powers’ and political parties are banned. 

The Commonwealth observers said there was ‘considerable room for improving the democratic system’.

They called for King Mswati’s powers to be reduced. ‘The presence of the monarch in everyday political life inevitably associates the institution of monarchy with politics, a situation that runs counter to the development that the re-establishment of the Parliament and the devolution of executive authority into the hands of elected officials.’

The report said the constitution needed to be revisited with an open debate on what changes were necessary.

It added, ‘This should ideally be carried out through a fully inclusive, consultative process with all Swazi political organisations and civil society (if needed, with the help of constitutional experts.’

The African Union (AU) also 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.’ 

The AU called on Swaziland to implement the African Commission’s Resolution on Swaziland in 2012 that called on the Government, ‘to respect, protect and fulfil the rights to freedom of expression, freedom of association and freedom of assembly.’

The Swazi people have no say in who their leaders are. In the past they were only allowed to select 55 of the 65 members of the House of Assembly, the other 10 are appointed by the King. From this year they can choose an additional four members. None of the 30 members of the Swaziland Senate are elected by the people; the King appoints 20 members and the other 10 are appointed by the House of Assembly.

The King choses the Prime Minister and cabinet members. Only a man with the surname Dlamini can, by tradition, be appointed as Prime Minister. The King is a Dlamini.  

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