It is surprising how often the 2005 Constitution is claimed
to be the supreme law of Swaziland. Government,
foreign governments and even non-governmental organizations often claim that it
is the fundamental law, which is perhaps not surprising since it claims to be so
itself. I do not ascribe
to that view. This entry sets out why I
believe the 1973 Decree is the supreme law in Swaziland.
Swaziland is in a fairly unique position as it has more than
one document which claims to be the supreme law of the land: the King’s Proclamation to the Nation No
12 of 1973 (the ‘1973 Decree’) and
the Constitution of the Kingdom of Swaziland Act No 1 of 2005 (the ‘2005 Constitution’). (If you were wondering whether the 1973
Decree is still in effect, it is; a decree can only be repealed by decree, and
there has been no decree repealing the 1973 Decree.) The 2005 Constitution vests most powers in
His Majesty. For example, he appoints
the Cabinet, the judges and the Civil Service Commission. He can veto any law and is not properly bound
by the laws of the realm (see for example, s 11). But this is nothing compared to the 1973
Decree. That document places “all
executive, judicial and legislative functions” in the King. Section 14A goes on to state that the King
can “make, repeal, or amend any law.”
In other words, the 1973 Decree allows the King to rule by decree. It was this power His Majesty used on 6
February 2006 when he declared that the 2005 Constitution (gazetted on 26 July
2005) would come into force on 8 February 2006.
The King’s (Commencement of the
Constitution) Proclamation No 1 of 2006 demonstrated that the 1973 Decree
was still fully operational. It was
declared to be an “extraordinary instrument” by a judge in an Industrial Court
case which touched on (though did not deal with) its constitutionality (HERE).
In addition to allowing rule by proclamation, the 1973
Decree of course bans political parties.
(Although, just to be clear, repealing the Decree would not unban them,
s 79 and s 87 of the 2005 Constitution at the very least would also need to be
amended.) It is one of the oldest
emergency laws in the world (for more about emergency laws, see HERE). But it is perhaps unique in that it also
claims to be the supreme law of the land.
The question of constitutional supremacy is a tricky
one. In discussing it, the famous Swazi
constitutional lawyer, S J K Matsebula states that the question of de jure constitutional supremacy must be
decided by which constitution has de facto
supremacy. In other words, the
constitution which is in fact supreme is then taken to have legal
supremacy.
The question, therefore, is:
which constitution is in fact supreme? That is, if two mutually contradictory
actions were authorized by government, one falling under the 1973 Decree and
one under the 2005 Constitution, which would the government printer place in
the Gazette? Or, to make a specific example: if the King issued some orders under the 1973
Decree and the Prime Minister issued contradictory regulations under the Public Order Act, which would be placed
in the Gazette by the government printer?
As
things stand in the state of Swaziland in 2011, there can be little doubt that
the 1973 Decree is the supreme law of the land.
