Some weeks ago, we were all summonsed to partake in a consultation regarding the Human Rights Commission (HRC) in Swaziland. The consultation was undertaken by the Commonwealth, and as it was a government shindig, the lunches were sumptuous.
The facilitator - ennoblingly titled 'Guest of Honour' - was Justice Emile Short, the Ghanaian Human Rights Commissioner. He did a fantastic job. The draft Bill for the Commission was distributed, and it is modelled on the Ghanaian Commission, which has by all accounts been fantastically successful.
But it became clear throughout the sessions that Swaziland is a far cry from Ghana. There is a fear here of government commissions and powers that perplexed the facilitators. When it was explained, for example, that the Elections & Boundaries Commission here in Swaziland had attempted to prevent democratic voter education, under the rubric that it and it alone had the authority to 'facilitate voter education' (see the EBC case), the Commonwealth facilitators were all stunned. Still, they pushed on with peddling the Ghanaian model.
So what is the model?
Well, unlike most HRCs in the developed world, the Ghanaian model allows individuals to take other individuals directly to the Commission. This makes the HRC rather like a less formal court. In most countries in the West, a person can take a case alleging a violation of human rights by another individual, but the focus of the complaint is the government. So, one might allege that a neighbour has invaded one’s right to privacy, but the complaint will centre on why the government has not outlawed the neighbour’s behaviour, or taken appropriate action to enforce the law. This type of HRC is usually given power to investigate complaints about “actions or practices” (including omissions) undertaken (or not) by the state that are said to violate human rights. Or, usually a human rights treaty.
Not so the Swazi HRC. It is proposed to give this the power to investigate “violations of human rights.” This specifically allows individuals to make complaints against other individuals. Perhaps more worryingly, it also specifically allows any governmental body to make complaints against individuals.
In addition to this, the definition of “human rights” is somewhat vague in the proposed Bill. It is defined as follows:
“‘human rights’ means human rights guaranteed by or under the Constitution or any other law in force in Swaziland, including international law.”
This might be fine in Ghana, although it is the sort of definition that should be avoided for uncertainty. Just what are the ‘human rights guaranteed by...any...law in Swaziland’? There may be certain rights existing in unwritten Swazi Law & Custom (which is ‘law in Swaziland’), for example, that might be construed as being ‘human rights’ and therefore form a proper basis for an investigation by the HRC. I hope that you can appreciate we are on slippery ground here. When this was raised at the consultation, the Commonwealth dismissed those concerned with the statement that they were misunderstanding what human rights were. But this rather misses the point. There are safer ways of defining the HRC’s mandate, ways that would avoid any possible misunderstandings. And these misunderstandings could easily be abuses in the guise of misunderstandings. Coupled with the ability of the HRC to investigate individuals at the behest of the state, the Swazi HRC could end up being the exact opposite of what any right-thinking people would want from it. And if you think that is ridiculous, just speak to some of the people that ended up on the wrong side of the Elections & Boundaries Commission’s attentions.
Ghana, as I said, is a long way from Swaziland.
