UPR ADVANCE QUESTIONS NOW AVAILABLE

Swaziland has been given notice that it will have to furnish answers to the following questions at the Human Rights Council (HERE):

SWITZERLAND

Political rights

What measures does the government plan to take in order to lift the ban on political parties?

Women’s rights

How will Swaziland remedy the limitation of the rights of women e.g. in not enabling them to acquire a bank loan or own property without the written consent of their husbands?

Freedom of expression

What is Swaziland doing to facilitate the establishment of privately owned media houses?

Human Rights Commission

What measures is the Government planning to take to strengthen the mandate the Human Rights Commission and guarantee the access of the Swazi people to the Commission?

Extra-judicial killings and torture

How many judicial investigations into alleged extrajudicial killings and torture have the Swazi authorities undertaken so far? What was the outcome of these investigations?

How does Swaziland respond to recommendations by Swazi civil society groups to establish commissions of inquiry into all deaths that occur while in the hands of the State police, the army, correctional services and game rangers?

Death Penalty

Does the government of Swaziland foresee to impose a moratorium on executions with a view to the abolition of the death penalty?"

UNITED KINGDOM

We would be grateful if you would provide information on the extent to which civil society was consulted in the preparation of your national report.

Please could you inform us as to when enabling legislation to fully operationalize the Commission on Human Rights and Public Administration will be passed, and whether the Commission will operate in accordance with the Paris principles designed to guide the practice of such institutions?

We would be grateful if you could explain why, despite the fact that the current percentage of women in parliament is 23%, Section 86(1) of the Constitution (which provides for the election of four additional women if the number of women in parliament does not reach 30%) has not been used.

What plans do you have to ratify the Optional Protocol to the Convention against Torture and other cruel, inhuman or degrading treatment or punishment?

What measures is Swaziland taking to investigate and prosecute state agents who violate human rights?

Please could you explain what measures are being taken to ensure that the Suppression of Terrorism Act of 2008 is compatible with Section 24 of the Constitution which provides for freedom of expression?

Please could you explain what plans you have to rectify the minority status of women in customary law?

What plans do you have to enact legislation protecting the right to freedom of sexual orientation?

NETHERLANDS

Political reform

Demands for political reform in Swaziland have swelled as a result of the sharp economic turndown, starting early 2011. We have received reports that the government has responded harshly to these demands. In paragraph 103 of the national report, the government acknowledges these challenges and constraints by stating that the Law enforcement agents have a challenge of striking a balance between enforcement of the provisions of the STA and respect for the human rights to freedom of expression and association.  Taking into account paragraphs 75 – 77 of the national report about freedom of association and paragraphs 78-80 of the national report about freedom of expression, could the government respond to the allegations of a harsh response? How is the government planning to address these challenges? Could the government elaborate on the other challenges it is facing in light of the economic turndown? How does the economic turndown affect for instance the right to education, as mentioned in paragraphs 31 – 40?

Rule of Law

We took note of paragraph 40 of the OHCHR-compilation, which states that the realization of the freedom of expression and media freedom has been restricted by the Suppression of Terrorism Act 2088. Could the government respond to this paragraph and elaborate on the question whether these restrictions also apply to members of opposition movements? If so, in what way is the independent judicial review of these particular cases being guaranteed, especially as some provisions are deemed unconstitutional?

NORWAY

What steps are taken to strengthen and ensure the freedom of assembly and association in Swaziland? What steps will be taken to ensure that a space for plurality of opinion and political groups is created and maintained?  What steps are being taken to repeal the 1973 Royal decree?

We note the allegations concerning the excessive use of force by law enforcement and security officials.  Reports also refer to lack of investigation in order to bring perpetrators to justice.  We would appreciate to be informed on how the Government will proceed to alter this situation and practice.

In line with Swaziland’s commitments under the Convention against Torture and the International Covenant on Civil and Political Rights, what are the measures taken to eradicate torture and other forms of ill-treatment?

What are the measures taken to prevent all forms of discrimination against women, including discriminatory cultural practices?

SLOVENIA

What kind of measures have been and will be taken by Swaziland to effectively ensure the gender equality?

SWEDEN

Taken positively note of that the Constitution includes a rights catalogue, Sweden would like to ask the Government of Swaziland to elaborate on the measures taken to harmonize national legislation with the prohibition of torture and ill-treatment and freedom of assembly, as stipulated in the Constitution and in relevant international human rights conventions.

Sweden would like to ask what measures the Government of Swaziland is taking to ensure that the National Commission for Human Rights and Public Administration could serve as an independent and effective tool for the protection of human rights?

Sweden would like to ask the Government of Swaziland to elaborate on the measures taken to ensure that its legislation with regard to terrorism is not in breach of its international obligations.

The answers can be watched live here on Channel 11:

http://www.unmultimedia.org/tv/webcast/

In about an hour and a half, if I have my facts straight.

UPR QUESTION RE 1973 DECREE

In about two hours (3PM Mbabane time), Swaziland will be answering questions about its human rights record before the Human Rights Council.  The advance questions are now available (HERE).

Norway is asking the following question about the 1973 Decree:

·         What steps are taken to strengthen and ensure the freedom of assembly and association in Swaziland? What steps will be taken to ensure that a space for plurality of opinion and political groups is created and maintained?  What steps are being taken to repeal the 1973 Royal decree?

The answer can be watched live here:

 http://www.unmultimedia.org/tv/webcast/

For English, click on Channel 11.

WHICH CONSTITUTION IS SUPREME?

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.

CORRECTIONAL SERVICES OFFICERS WITH POLICE POWERS

On the day of the 18 March Protest, far from the proposed protest itself, a vehicle I was travelling in was stopped by officers dressed in correctional services gear. They were searching cars. Over the past couple of days, correctional services officers were again very involved in the heavy state presence that clamped down on protestors.

Looking at the statutes, it appears that there is no legal basis for His Majesty’s Correctional Services being given police powers and being in any way involved with civilians. The Prisons Act No 40 of 1964 states that a ‘prison officer’ may be given “lawful directions in respect of the execution of his office” (s 7). They also “have all the functions and protection of a police officer” in connection with any prison or prisoner (s 9). They may stop and search people or vehicles but again solely and quite strictly in connection with prisons (s 10). And they are authorized to use force “against a prisoner” (s 11).

Section 25 of the same act allows police to be assigned to prisons in cases of need. But there is no corresponding provision (allowing correctional services officers to act as police officers) in the Police Act No 29 of 1957. Nor is there any such provision in the Emergency Powers Act, the 1973 Decree or the 2005 Constitution. The Umbutfo Swaziland Defence Order No 10 of 1977 makes specific provision for permanent (ie, non-reserve) members of the army to be given police powers (s 7), although this probably relates only to military offences and the enforcement of the army’s Code of Conduct.

The Public Order Act No 17 of 1963 does enable police and what it calls ‘administrative officers’ to break up or prevent unlicensed public gatherings. Reading the relevant statutes together, it is doubtful whether ‘prison officers’ are contemplated within the meaning of the Public Order Act. But even if they are, such ‘administrative officers’ are limited to ‘giving orders’ or ‘using force’ to disperse meetings (s 3). This is a far cry from what prison officers are being authorized to do in Swaziland. Instead, for the past few weeks, they have been manning road blocks, doing search and seizures, guarding street corners, and arresting civilians.

This issue is important not just because governments should follow the laws. I don’t know the figures, but the use of correctional services has dramatically increased the presence of the state here. Prison warders with police powers all across the country may be the government’s idea of keeping its civilians safe, but from the civilian side it may just look like the whole country is becoming a prison.

US STATE DEPT REPORT ON SWAZILAND

The annual human rights report of the US State Department for Swaziland has been published (HTML version, HERE). It catalogues the human rights abuses by the Swazi government in 2010. It seems the US accepts that the 2005 Constitution is the fundamental law in Swaziland. This is doubtful. I am quite convinced that the 1973 Decree is in fact the real constitution, and that the Head of State can rule by decree even against the 2005 Constitution's terms. More on that shortly.