There has been a scandal involving a piece of land with a market value of about E5 million being sold for a whopping E31 million. Corruption in land deals is nothing to this part of the world, but parliament actually did something about it this time, which is a fairly irregular phenomenon. A parliamentary inquiry found all sorts of improper conduct and during public hearings about the matter, the Minister of Housing explosively implicated the Ministry of Foreign Affairs in the whole deal (HERE). With at least four ministries involved, the expectation has been high that something would be done. It seems now that with so much heat on them, three Ministers have secured a settlement of the issue with the businessman who sold the land, who doesn’t want to see his other business interests adversely affected (HERE).
But beside this political settlement, what can be done in such a situation in Swaziland?
There are three broad avenues of action: (1) criminal; (2) executive; or (3) parliamentary. Let us explore each in turn.
(1) Criminal
It is not clear why this matter has not been turned over to the police or more relevantly, the new Anti-corruption Commission. There seems to be enough evidence of wrongdoing to justify a “suspected offence” under the Prevention of Corruption Act (s 10(1)(c)). The Anti-corruption Commission has broad investigative powers, with the ability to issue subpoenas (s 11(1)(b)) and have access to documents and bank accounts (s 12). Further, it can even act on its own initiative (s 10). Its lack of action in this matter makes some MPs calls for its abolition sound more sensible (HERE).
(2) Executive
In a sign that some are clearly nervous about the whole matter, Cabinet held a 20-hour meeting (HERE). But it is unclear what Cabinet could do in this situation, anyway. The power of sacking or reshuffling the Ministers involved rests with His Majesty (2005 Constitution, s 67). As does the power over senior civil servants (s 76). So ministers are not really head of their ministries in that they do not have the power of appointments over any part of them.
(3) Parliamentary
In stating its recommendations regarding the principal secretaries involved in the mess, parliament attempted to divorce the ‘principal secretary’ (head of department) function from the ‘controlling officer’ (power to sign off on public funds) function. The recommendations from parliament concentrated on the ‘controlling officer’ powers of the principal secretaries, recommending that these powers be removed from the relevant principal secretaries. This is because the ability to appoint ‘controlling officers’ at least arguably lies with the Minister of Finance. This says a lot about modern Swazi constitutionalism, at least as far as the colonial institutions (parliament, courts etc) are concerned. Parliament stayed clear of making recommendations about the head of department because as stated that would require making recommendations to His Majesty King Mswati III. At least in the view of the parliamentary finance committee, this is outside the power of parliament (HERE). That is not a position that in my view is supported either politically (making a recommendation to the King would hardly damage the monarchy, or at least hardly any more than the fact that these people were appointed by him and have not been removed by him) or constitutionally (the 2005 Constitution clearly does constrain the King, albeit rather less than might be considered ‘normal’, and also it seems without curtailing his power to rule by decree in terms of the 1973 Decree).
Parliament certainly flexed its muscles throughout this affair. It is still some way from exercising its power to pass a vote of no confidence in a Minister (authorised by s 68(4)(e)), again probably because this would be directly recommending His Majesty to take action – the Ministerial vote of confidence simply authorizes the King to remove a Minister at his discretion. But there seems to be another land deal controversy in the offing (HERE). And further, the Executive seems altogether content with the actions taken so far in this affair. If parliament were to become a serious player on the Swazi political scene, this raises the prospect of parliament passing a resolution of no confidence in Cabinet. Section 68(5) of the 2005 Constitution actually does enable parliament to have control over Cabinet, it reads as follows:
“Where a resolution of no confidence is passed on the Cabinet by a three-fifths majority of all members of the House the King shall dissolve the Cabinet.”
If parliament was serious about wresting control of the Cabinet into its own hands (or at least being able to have a say over its constitution), s 68(5) is ready and waiting at any time. It requires only a 3/5ths majority vote, unlike the Ministerial vote of no confidence which requires a 2/3 vote. This means that it would need the support of 39 MPs (there are 55 members in the lower house, and 10 members appointed by the King: s 95). Crucially, and again differently from the Ministerial vote of no confidence, a resolution of no confidence in Cabinet actually requires that His Majesty take action, in this case disbanding Cabinet. For this reason, it is unlikely to be used. A parliament that is too timid to actually make recommendations to His Majesty is hardly likely to actually tell him what to do.
Nevertheless, s 68(5) sits there like a shining red button on the control board of Swazi constitutionalism. It would take 39 MPs to press the button. These MPs would need to be prepared to resign if Cabinet was not disbanded following the resolution (again, highly unlikely). But it would mean that parliament had finally landed on the Swazi political scene. Parliament would no longer play its (highly useful) role of providing information about government, and would actually be involved in crucial decisions in constituting government. For this reason, s 68(5) should be known as the Nuclear Option in the 2005 Constitution. If invoked, it would dramatically herald a new age in Swazi constitutionalism.
