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The Development of Swaziland's Constitution: Monarchical Responses to Modern Challenges

Published online by Cambridge University Press:  28 July 2009

John Baloro
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Extract

At independence in 1968, the monarchy in Swaziland did not suffer the fate of traditional rulers in most of independent Africa whose powers were severely curtailed and subordinated to those of the nationalist leaders. In Swaziland, the King's pre-eminence as the head of the ruling Dlamini clan was constitutionally enshrined within the overall set-up of a constitutional monarchy. The monarchy's control over the strategic resources of the country such as land and mineral resources was also entrenched in the Constitution. Furthermore, the domination of the political scene by the royalist party, the Imbokodvo National Movement, consolidated the King's political powers far beyond what was possibly intended under the dispensation of a constitutional monarchy. As soon as the opposition gained three seats in Parliament, this was seen as a challenge to the power, prestige and authority of the King. It then became easy for the 1968 Independence Constitution to be targeted as a colonial imposition lacking authority as a source of legitimate governance in the country.

Type
Articles
Information
Journal of African Law , Volume 38 , Issue 1 , Spring 1994 , pp. 19 - 34
Copyright
Copyright © School of Oriental and African Studies 1994

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References

1 See Baloro, J., “The human right to free association and assembly and multi-party democracy, a study of the law and practice in Swaziland”, in Hunter, J. and Lombard, C. (eds.), Multi-party Democracy, Civil Society and Economic Transformation in Southern Africa, Windhoek, 1992, 173 at 188. See also (1992) 22 Africa Insight 206–211.Google Scholar

2 Wanda, B. P., “The shaping of the modern Constitution of Swaziland: a review of some social and historical factors”, (1990) 6 Lesotho Law Journal 137 at 178 (emphasis supplied).Google Scholar

3 See generally Matsebula, J. S. M., A History of Swaziland, London, 1980.Google Scholar

4 Sobhula II v. Miller [1926] A.C. 518.

5 Takirambudde, P. N., “External law and social structure in an African context: an essay about normative imposition and survival in Swaziland”, (1983) XVI C.I.L.S.A. 209 at 219 (emphasis supplied).Google Scholar

6 Booth, A. R., Swaziland Tradition and Change in a Southern African Kingdom, Boulder, 1983, 67.Google Scholar

7 See previous note.

8 S.28.

9 Ss. 33–35.

10 S. 62(2), schedule 3.

11 S.94.

12 S. 95(1) and (2).

13 Ss. 37–3.

14 Ss. 38(5) and 42.

15 S. 76(2) and (3), and Wanda, op. cit. at 163

16 S.80(3).

17 S.81(l)(a) and (b).

18 S.28(2).

19 Wanda, op. cit. at 162–163.

20 Ibid. at 160 (my emphasis).

21 Kuper, H., Sobhuza II, King and Ngwenyama of Swaziland, London, 1978, 332;Google Scholar Wanda, Ibid., 167.

22 Kuper, , op. cit. at 334. See also Ngwenya v. Deputy Prime Minister and Chief Immigration Officer, 1970–1976 SLR 119.Google Scholar

23 Ibid., 121.

24 See Kuper, , op. cit. 334–335.Google Scholar

25 Proclamation by his Majesty King Sobhuza II, King's Proclamation 12 April, 1973, s. 2(a), (b) and (c).

26 Baloro, J. “The human right to free association and assembly and multi-party democracy: a study of the law and practice in Swaziland” (1992) 22 Africa Insight 206 at 209.Google Scholar

27 Establishment of the Parliament of Swaziland Order, King's Order-in-Council No. 23 of 1978.

28 Ibid., s. 3 (emphasis supplied).

29 Establishment of the Parliament of Swaziland Order, King's Order-in-Council No. 23, 1978, ss.3–6.

30 In the two closely relate d Nguni languages of Zulu and Siswati, the word indvuna can be rendered as “captain”. In both ancient and modern Swaziland, it is customary for all chiefs to appoint tindvuna (pl.) to assist them in various aspects of governance such as the allocation of land and the settlement of disputes among the community.

31 See n. 29, s. 2.

32 In this regard, the present writer may relate his experience at the Manzini inkhundla during the last tinkhundla elections conducted in 1988. As the crowd moved into the arena of the Manzini stadium to file behind each of the four candidates, he stood by watching the proceedings. A policeman approached him and gently enquired why he was not obeying the King's command by voting. The policeman added that, on such occasions, there should be no bystanders or observers since everyone was expected to be a participant. The present writer then carefully and politely explained to the police officer that, as he was not a national of Swaziland, it would be improper for him to participate in the votin g process. The police officer remained adamant in his view that all who were within the Kingdom were subjects of the King and were obliged to obey his command but, nevertheless, allowed him to walk away without voting.

33 See n. 29, s. 69.

34 Wanda, op. cit. at 176.

35 See Regent's Decrees No. 1 and No. 2 of 1983. See also Davies, R. H. et al. , The Kingdom of Swaziland: A Profile, London, 1985, 48–70.Google Scholar

36 The Tribunal Decree, King's Decree No. 2 of 1987. According to s. 3 of this Decree, where the Prime Minister is of the opinion that any person has committed an offence involving the person or office of the Nguimyama (the King), the person or office of the Ndlovukazi and/or any matter mentioned in schedule 3 to the Repealed Constitution, he may issue a certificate to that effect and all proceedings regarding the offence shall be conducted before the tribunal. All members of the tribunal shall be appointed by the King. Once constituted, the tribunal shall exercise exclusive jurisdiction in the conduct and determination of all proceedings in regard to the matters before it. No appeal shall lie from its decision to a court of law.

37 The King v. Dominic Mngomezulu and 9 others, Criminal Case No. 93/90 (unreported).

38 Ibid. at 25, per Hannah, CJ.

39 “Swaziland: looking across the border”, (1990) 31 Africa Confidential No. 23, 6Google Scholar (22 November 1990). The affected minister was Reginald Dhladhla, a young, intelligent and modernist lawyer. He was replaced by Zonke Khumalo, a non-lawyer traditionalist hardliner and a member of a group of powerful advisers to the King known as the “Central Committee”.

40 Donny, Nxumalo: “Ludzidzini Kraal Meeting told: elections system must go!”, The Swazi News, Saturday, 11 08, 1990Google Scholar; John, Dlamini: “Ludzidzini meeting calls for sweeping changes: 'Mndeni must go'”, Weekend Observer, Saturday, 11 08, 1990.Google Scholar

41 The term “Vusela” in Siswati, the national language, means greeting. During the proceedings of the first committee chaired by Prince Masitsela Dlamini, he revealed that his committee was not in fact charged with the task of reviewing the tinkhundla system. He explained that the committee was merely asked by the King to “Vusela” (i.e. greet) the people on his behalf. Thus, in accordance with the immensely jocular spirit of the Swazis, all the subsequent committees were named Vusela Committees. Vusela III was not a fact-finding committee but an educational one whose task was to educate the people on various aspects of the “new dispensation”.

42 The Weekend Observer, Saturday, 10 October, 1992 at 3.

43 The Swazi News, Saturday, 10 October, 1992 at 24.