Wednesday, November 14, 2012


Swaziland’s Prime Minister Barnabas Dlamini told the House of Assembly that MPs needed a workshop so they could understand what their responsibilities were.

He told them that they did not understand the principle of ‘separation of powers’ between the executive (government ministers and their departments), the legislative (parliament) and the judiciary (judges and the courts).

He said parliament had an important responsibility but seemingly, it overlapped sometimes with his government, the Swazi Observer newspaper reported him saying. What he meant was he did not want parliament interfering with his decisions.

The newspaper reported, ‘Dlamini said there needed to be a clarification on the separation of powers of the three arms so that none of them got in the way for the other, thus making the operation of government smooth in as far as that was concerned.’

But, Dlamini fails to acknowledge that in Swaziland any workshop on separation of powers is irrelevant. This is because Section 64 (1) of the Swaziland Constitution says that the executive authority of Swaziland rests in the king as head of state.

S11 of the constitution goes on to state that the king cannot be questioned in court, so this means his decisions cannot come under judicial scrutiny. Since King Mswati III has executive authority and his decisions cannot be overruled by the courts, this makes him an absolute monarch.

This has been demonstrated many times in Swaziland, most recently last month when Prime Minister Dlamini lost a vote of confidence in the House of Assembly. According to the constitution, King Mswati was required to sack him, but he chose not to do so and Dlamini remains in power.

The supremacy of the monarch is not in doubt, but it is not talked about much in Swaziland.

Prime Minister Dlamini is not the only major figure in Swaziland to misrepresent the status of separation of powers; the Attorney General (AG) Majahenkhaba Dlamini did the same in January 2008, when he claimed in a speech that separation of powers were enshrined in the constitution and that the executive (government ministers) was ‘first among equals’ in the three branches of government.

The Swaziland Lawyers for Human Rights made several important criticisms of the AG’s at the time and in doing so gave an excellent account of just how undemocratic a state Swaziland is. 

In a statement the lawyers said the King and iNgweyama (his Mother) had a special and revered role in Swazi traditional law and custom to such an extent that Swazi custom dictates that ‘the King cannot tell a lie’.

‘This is not a prohibition of royal falsehoods but a statement on how truth and reality are recognized in Swazi Traditional Law.

‘The King and iNgweyama also has an elevated role under the Swazi Constitution where under section 11 he cannot be questioned in court and therefore his decisions cannot come under judicial scrutiny either.

‘Therefore it follows that our Executive is not first among equals but first among strongly weighted unequals.’

The lawyers continued, ‘The Attorney General [says] that the separation of powers can be found in the constitution. We strongly contest that assertion. Separation of powers is a philosophy of providing checks and balances between the three branches of government: the executive (government ministers and their departments), the legislative (parliament) and the judiciary (judges and the courts).

‘In theory, it distributes the power of the state between these three branches and maintains a healthy tension of oversight and accountability between them.

‘In a democracy that practices separation of powers the ultimate power rests in the will of the people, and so parliament and the legislature become the final arbiter of how the country is governed - not the executive.

‘We have already seen that in Swaziland the King has supreme executive authority. Let us look at parliamentary authority in Swaziland today. Section 106(a) of the Constitution says ‘the supreme legislative authority of Swaziland vests in the King-in-Parliament’.

‘It goes on to state the King can appoint nearly one fifth of the House of Assembly and two thirds of the Senate. The majority of both houses is required for a bill to become law. In any case, under section 134(b), the King has the absolute authority to dissolve parliament. It is impossible to argue that emaSwati [Swazi people] have any real political power in this arrangement.

‘We know that the real power lies with the traditional authorities and Liqoqo in advising the King. In other countries, parliamentary elections are typically closely fought and so often the people in the centre hold the balance of power. This promotes a culture of problem solving, compromise and respect for minorities.

‘The Swazi system ensures an inbuilt majority for those who are sympathetic to traditional causes in all but the most extreme situations. Democracy is not reflected in the simple rule of the majority. It is equal access to power and influence by all.

‘The arrangement is Swaziland is simply and clearly not democratic.’

The lawyers then turned their attention to the judiciary in Swaziland.

‘Section 141 guarantees the independence of the judiciary. However, the senior judges of the country are chosen by the Judicial Services Commission.

‘The majority of this commission is directly appointed by the King and his advisors. Given this fact, how independent can new judges really be?’

The lawyers continued, ‘Thus we can see that the combined position of the Monarchy and its advisors directly controls the makeup of, and has the potential to manipulate the decisions of, all three branches of government.

‘We therefore must disagree in the strongest of terms with the Attorney General that the Swazi Constitution embodies the doctrine of the separation of powers.’

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