CONSTITUTION MAKING

A well-regarded handbook on the process of constitution-making has been released (click on this link):

Constitution-Making Handbook (Interpeace, 2011)

It argues that the process of making a constitution is more important than what the constitution itself actually says.   It states that the essential guiding principles of successful, modern constitution-making are:  public participation;  inclusiveness (including gender equality) and representation;  transparency;  and national ownership.

We can compare whether the process that resulted in the 2005 Constitution in Swaziland was guided by these principles by reading the International Bar Association report:

Striving for Democratic Governance, 2003 (PDF document - quite large)

Look at pages 4-6.

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  (If you were wondering whether the 1973 Decree is still in effect, it is; a decree can only be repealed by decree, and there has been no decree repealing the 1973 Decree.)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.

NO CONFIDENCE IN NO CONFIDENCE

In the end, parliament blinked. With the release of the long-awaited report of the enquiry into Cabinet’s land grab, came a number of recommendations. Fifth on the list was a resolution “to appoint a sub-committee that will make a humble representation to the Head of State, calling for [the] dissolution of Cabinet” (HERE).

This is revealing. There is currently no constitutional authority for the lower house to send a delegation to the King to request such a dismissal. Instead, the 2005 Constitution authorizes parliament to pass a vote of no confidence. Unfortunately, it does so in contradictory terms. Sections 68(1)(e) and 68(4)(e) enable parliament to pass a vote of no confidence (by a 2/3 majority) in the PM or a minister respectively. Under s 68(5), a resolution of no confidence can be passed (by a 3/5 majority) in the entire Cabinet (about which I have written more, HERE.) So far, so good (except for the super-majority requirements – that is more than a 50%+ majority of parliamentarians – which makes it much more difficult to pass a vote compared with most other countries, which require the 50%+).

But then comes the contradiction. Section 134(5)(b) states that:

“where the House passes a resolution of no confidence in the Government of Swaziland and the Prime Minister does not within three days after that resolution resign, the King may dissolve Parliament or Cabinet” (my emphasis).

This contradicts the mandatory nature of s 68(5), which states that after a “resolution of no confidence…on the Cabinet” the King must sack the Cabinet. Perhaps these sections are not talking about the same thing. But in the corridors of parliament, the talk was that these sections were talking about the same resolution and that if such a resolution was passed, the PM would invariably refuse to resign, and parliament might be dismissed. Bearing in mind that the parliament has no say over the choice of Cabinet, it would then make no sense for the MPs to risk their jobs.

What is more troubling than the MPs timidity, and more worrying than the confusions contained within the 2005 Constitution, is that the new Constitution sets the parliament at loggerheads with the Monarch. The King appoints Cabinet and has the power to revoke the appointment either, according to the 2005 Constitution, on his own initiative or after a parliamentary vote (s 68). But in modern Swaziland, even parliament is not willing to publicly force the Monarch’s hand. Therefore, it is left for the King alone to clean out his closet, or cabinet as it were.

It would have been better to constitutionalize the current ‘practice’, authorizing parliament to send a delegation to the King (although this places the executive and the legislative in a potentially precarious – dare I say, Washingtonian – relationship). Either that, or make parliament wholly responsible for choosing Cabinet. No constitutional amendment would do more to secure the monarchy in Swaziland, or to lessen its power. 

At any rate, parliament has a fair share of blame for its own impotence. Institutions increase their power by good and popular decisions. No one coming with fresh eyes to the US Constitution, for example, would think that the President holds all the aces. By abandoning the 2005 Constitution and being unwilling to risk their livelihoods, the MPs have sealed their own powerlessness.

SACKING A PM FOR INCOMPETENCE

A journalist has said that a unionist said that a traditional ruler said that the King said that he could not sack the Prime Minister for ‘incompetence’ (2005 Constitution, s 68(1)(a)) until the Prime Minister had ‘done something unconstitutional’ (HERE). ‘Incompetence’ in this instance is to be distinguished from ‘infirmity of body or mind’ (s 68(1)(f)). The meaning to be taken from the article is (I think) that the PM has to have materially breached the 2005 Constitution. If this is His Majesty’s view, it is a noteworthy interpretation of a section which reads as follows:

“68(1) The office of the Prime Minister shall become vacant where –

(a) The King revokes the appointment for incompetence”

Interpreting this to mean that the PM has to have materially breached the Constitution is a very restrictive interpretation of the section. Of course, His Majesty’s view may be entirely different from what was quoted by someone quoting someone who was in turn quoting someone else. Even if they were direct quotes.

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.

The New Kenyan Bill of Rights

Kenya’s Mwai Kibaki last week signed into law a new constitution, which enshrines “Africa’s most progressive Bill of Rights” (HERE).  A quick run-down shows how it compares with the Swazi Bills of Rights:

SWAZILAND	KENYA
Protection of right to life	4:26 - Right to life
Protection of right to personal liberty	4:51 - Rights of persons detained, held in custody or imprisoned
Protection from slavery and forced labour	4:30 - Slavery, servitude and forced labour
Protection from inhuman or degrading treatment
Protection from deprivation of property	4:40 - Protection of right to property
Equality before the law	4:27 - Equality and freedom from discrimination
Right to fair hearing	4:50 - Fair hearing
Protection against arbitrary search or entry
Protection of freedom of conscience or religion	4:32 - Freedom of conscience, religion, belief and opinion
Protection of freedom of expression	4:33 - Freedom of expression
Protection of freedom of assembly and association	4:36 - Freedom of association 4:37 - Assembly, demonstration, picketing and petition
Protection of freedom of movement	4:39 - Freedom of movement and residence
Rights and protection of the family	4:45 - Family
Rights and freedoms of women
Rights of the child	4:53 - Children
Rights of persons with disabilities	4:54 - Persons with disabilities
Abolition of the status of illegitimacy
Rights of workers	4:41 - Labour relations
Right to administrative justice	4:47 - Fair administrative action
Property rights of spouses
	4:28 - Human dignity
	4:29 - Freedom and security of the person
	4:31 - Privacy
	4:34 - Freedom of the media
	4:35 - Access to information
	4:38 - Political rights
	4:42 - Environment
	4:43 - Economic and social rights
	4:44 - Language and culture
	4:46 - Consumer rights
	4:48 - Access to justice
	4:49 - Rights of arrested persons
	4:55 - Youth
	4:56 - Minorities and marginalised groups
	4:57 - Older members of society

Obviously, this is very superficial.  But a quick review of the provisions reveals that this table is probably painting an overly rosy picture of Swaziland – the Swazi Bill of Rights is riddled with claw-back clauses.  Take this doozy from s 17 protection from slavery and forced labour:

“17(3) ...[T]his section...does not include any labour –

(e) reasonably required as part of reasonable and normal parental, cultural, communal or other civic obligations...”

Arguably, this section leaves a law like the Swazi Administration Order (HERE) constitutional.

But weren’t we talking about Kenya?  We’re all hoping things will work out well under this new Constitution.  Best of luck, Kenya!

For a user-friendly online version of the new Kenyan constitution, click HERE.

Maternal Health & the Swazi Constitution

A friend of mine, Emaceke, gave birth a couple of weeks ago.  The baby came on quickly and she delivered at her home – on her knees.  She didn’t seem to mind, or perhaps she was quite proud of her efforts.  In discussing what I see as a heroic event, another colleague Zodwa explained that she had given birth in her kitchen by herself.  She said she just instinctively knew what to do.  I was shaking my head in disbelief at what the Swazi women thought was quite a normal circumstance.  When I got back to my desk, I quite coincidentally received these stats:

	World Summit for Children Indicators	MICS 2000	SDHS 2006-07
Knowledge of preventing HIV	Women who correctly state the 2 main ways of avoiding HIV infection	49.5%	91.5%
Knowledge of misconceptions of HIV/AIDs	Women who correctly identified 3 misconceptions about HIV/AIDs	41%	51.9%
Knowledge of mother to child transmission	Women who correctly identify means of transmission of HIV from mother to child	47%	75.8%
Attitude to people with HIV/AIDs	Women expressing a discriminatory attitude towards people with HIV/AIDs	77.4%	42.7%[1]
Knowledge of HIV testing	Women who know where to get a HIV test	59.7%	91.8%
HIV testing	Women who have been tested for HIV	17.3%	35.8%
Contraceptive prevalence	Married women aged 15-49 who are using a contraceptive method	27.9%	50.6%
Antenatal care	Women aged 15-49 attended at least once during pregnancy by skilled personnel	79%	97.1%
Childbirth care	Births attended by skilled health personnel	70%	74.3%
Birth weight below 2.5 kg	Live births that weigh below 2500 grams	5%	8%
Exclusive breastfeeding	Infants aged less than 4 months who are exclusively breastfed	31.2%	32.3%[2]
Timely complementary feeding	Infants aged 6-9 months who are receiving breast milk and complementary food	60%	76.5%
Continued breastfeeding	Children aged 12-15 months and 20-23 months who are breastfeeding	76.6% (12-15)	76.4% (12-15)
		24.8% (20-23)	30.7% (20-23)
Under five mortality	Probability of dying before reaching age five	122/1000	120/1000
Infant mortality	Probability of dying before reaching age one	87.7/1000	85/1000
Underweight prevalence	Under-fives who are too thin for their age	10%	5.3%
Stunting prevalence	Under-fives who are too short for their age	30%	29%
Wasting prevalence	Under-fives who are too thin for their height	2%	2.9%
DPT immunization	Children immunized against diptheria, pertussis and tetanus by age one	77.2%	90.2%
Measles immunization	Children immunized against measles by age one	72.3%	92%[3]
Polio immunization	Children immunized against polio by age one	80.2%	85.9%
Tuberculosis immunization	Children immunized against tuberculosis by age one	94.1%	~
Neonatal tetanus	One year old children protected against neonatal tetanus through immunization of their mother	79.8%	74.9%
Home management of illness (IMCI)	Under-fives reported ill during the last 2 weeks who received increased fluids and continued feeding	15.5%	~
Care seeking knowledge	Caretakers of under-fives who know at least 2 signs for seeking care immediately	17.4%	~
ORT use	Under-fives who had diarrhea in the last 2 weeks who were treated with oral rehydration salts or an appropriate household solution	92%	82.8%
Home management of diarrhea	Under-fives who had diarrhea in the last 2 weeks and received increased fluids and continued feeding during the episode	6.9%	11.1%
Care for acute respiratory infections	Under-fives who had ARI in the last 2 weeks and were taken to an appropriate health provider	60.9%	73%
Use of safe drinking water	Population who use a safe drinking water source	51%	63.9%
Sanitary means of excreta disposal	Population who use a sanitary means of excreta disposal	72%	56.5%
Preschool attendance	Children aged 36-59 months who are attending some form of organized early childhood education programme	12%	21.6%
Net primary school attendance	Children of primary school age attending primary school	90.6%	84.2%
Children reaching Grade 5	Children entering Grade 1 who eventually reach Grade 5	93.5%	62%[4]
Birth registration	Under-fives whose births are reported registered	53.5%	35.1%
Children’s living arrangements	Children aged 0-14 years in households not living with biological parent	19.7%	32.6%[5]
Orphans in households	Children aged 0-14 years who are orphans living in households	2% - both parents	11.8%[6]
		5.6%- one parent
Child labour	Children aged 5-14 who are currently working	11.8%	~

---

[1] Among women age 15-49 who have heard of AIDS, percentage expressing specific accepting attitudes towards people

with AIDS

[2] Percentage of children less than 5 months who are exclusively breastfed

[3] Percentage of children age 12-23 months receiving measles vaccination

[4] Percentage of children entering Grade 1 who complete Grade 7

[5] Percentage of children under the age of 15 not living with a biological parent

[6] Percentage of children under the age of 15 who have a very sick parent OR live in a household where an adult has been very sick OR died in the past 12 months (vulnerable children)

These are from two quite separate studies, methodologically incomparable.  But the person who compiled them thought she might like to compare them anyway, and I think they capture the state of things quite well.

74% of women in labour being attended to by skilled health personnel is, I suppose, pretty good for a middle-income country in Africa.  But it is still a terrible state of affairs.

But what has this got to do with the Constitution?

I’m not sure, but my feeling is with a different constitutional structure, these sorts of problems would be less likely, or would be being more rapidly addressed.  As it is, the following sections of the Constitution require duty bearers to enact laws for the assistance of women and children:

27(4) Motherhood and childhood are entitled to special care and assistance by society and the State.

27(6) Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of the needy...

28(2) Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.

29(7) Parliament shall enact laws necessary to ensure that –

(a)    A child has the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents (sic)...

(b)   A child is entitled to reasonable provision out of the estate of its parents;

(c)    Parents undertake their natural right and obligation of care, maintenance and proper upbringing of their children; and

(d)   Children receive special protection against exposure to physical and moral hazards within and outside the family.

So, what have duty bearers done since the passing of the 2005 Constitution?

A full list of what the Government has done is not possible here:  suffice to say that it does not seem that the policy or practice of the Government has been radically transformed by these new constitutional requirements. 

As for parliament, well since 2005, I am aware of only two women-/child-friendly laws being passed:  The Free Primary Education Act 2009 and the Child Trafficking Act 2010.

The Free Primary Education Act 2009 was passed under duress of the courts, and in violation (not fulfilment) of the constitutional requirement for free primary education.  And the Child Trafficking Act 2010 was passed under very direct pressure from the government of the United States of America.  Its benefit has been marginal at best, and downright damaging at worst.  Marginal because the American obsession with trafficking is a somewhat middle-class concern in a country where 30% of children are orphans, there is a skeletal welfare system, and no free education.  And damaging, as the State Department’s ‘ride in and take over the parliament’ approach has taken the momentum out of much more important bill, the Child Protection & Welfare Bill and the Sexual Offences & Domestic Violence Bill, and has increased the burdens of inertia within parliament, which tends to think it has now done its bit for children. 

But as it is, the priorities of parliament, the Government and the traditional authorities, have not really been shaken up by the 2005 Constitution.  So there won’t be rapid improvements for Emaceke or women like her anytime soon.