The People's United Democratic Movement of Swaziland
PUDEMO

International Office

Australia, Asian and the Pacific Region

E-mail: [email protected]

Date: June 23, 2004

Attention:
- Commonwealth Secretariat
- Commonwealth Ministerial Action Group

Swaziland's persistent and serious violations of the Commonwealth's Harare Declaration of 1991

The People's United Democratic Movement (PUDEMO) would like to register its grave concern about the CMAG's lack of interest in the persistent violations of the Harare Declaration by the government of Swaziland. PUDEMO is the leading political movement in Swaziland committed to rebuilding a new system of governance based on strong democratic values and respect for human rights. Accordingly, PUDEMO has embraced the Commonwealth Harare Declaration of 1991 which sets a framework for the development of democratic values amongst the Commonwealth states.

It is disturbing to note that various Commonwealth structures have not actively supported the struggle for democracy in Swaziland. These structures include the Commonwealth Heads of Governments Meeting (CHOGM), the Commonwealth Secretariat and the Commonwealth Ministerial Action Group (CMAG). Most notable is the reticence of CHOGM and CMAG to act on serious and persistent violations of the Harare Declaration by the government of Swaziland.

Since its inception by the Millbrook Commonwealth Declaration of 1995, CMAG has not paid due consideration to a wide range of issues relating to the political conduct of the royal family-led government in Swaziland. According to the Millbrook Declaration, CMAG was established "…to deal with serious or persistent violations of the principles contained in [the Harare Declaration]". The Group was then entrusted with "the task to assess the nature of the infringement and recommend measures for collective Commonwealth action aimed at the speedy restoration of democracy and constitutional rule." In the 2003 Annual Report of the Commonwealth, the Secretary-General reaffirmed the Millbrook and Harare commitments. According to the report, "democracy, representative government, human rights, the rule of law, the independence of the judiciary, and just and honest government are at the heart of the Commonwealth fundamental political values…" (p.8).

However, we have found no public record of the Commonwealth's commitment to these values in Swaziland. As noted earlier, the organisation has not considered the autocratic system of governance in Swaziland to be an issue that warrants firm action. Consequently, Swaziland is not listed amongst the offending countries on the CMAG's agenda, which includes Fiji, Pakistan and Zimbabwe. Most of these countries have been reprimanded for infringements similar to those committed by the government of Swaziland such as the reckless and deliberate erosion of the institutions of democracy and disrespect for the rule of law and basic human rights. For almost two years, the government has maintained its refusal to withdraw the infamous November 28, 2002 statement in which the former prime minister overruled two rulings of the Court of Appeal. All of the judges of this Court protested by resigning en masse and the Court remain suspended. This has had enormous implications for the administration of justice in Swaziland.

Whilst the CMAG has directly and actively intervened in Zimbabwe, Pakistan and Fiji, it has allowed political decay and violation of human rights to proceed to a dangerous point in Swaziland. This, in our view, undermines the founding principles of the CMAG, the credibility of the Commonwealth values enshrined in the Harare Declaration. In this Declaration, the Commonwealth pledged "…to work with renewed vigour, concentrating especially in the following areas:

· the protection and promotion of the fundamental political values of the Commonwealth:
· democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government;
· fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief;
· equality for women, so that they may exercise their full and equal rights;
· provision of universal access to education for the population of our countries;"

There is now no doubt that the CMAG continues to pursue a double political agenda in Southern Africa. It has steadfastly condemned and punished Zimbabwe for 'straying away' from the organisation's values and principles on democracy and human rights, yet it seems content to allow the rogue regime of King Mswati III to proceed unhindered.

The current system of governance in Swaziland directly contravenes the Harare Declaration. More than ten years after the Declaration was made, the government of Swaziland has not incorporated any of these principles into its national policies. Instead, it has adopted a recalcitrant position by maintaining its commitment to an autocratic style of governance. Whilst this is well known to the CMAG and the Commonwealth Secretariat, Swaziland has never featured on the CMAG agenda. We are very disappointed with the outcome of the recent CMAG meeting in London on May 21-22, 2004. PUDEMO had hoped that with the deteriorating political conditions in Swaziland the CMAG would have had no reservation in listing the country on its agenda. In our effort to establish and maintain dialogue with the international community, we have regularly provided information to the Commonwealth about the deteriorating political conditions in Swaziland. We strongly believe that international organisations such as the Commonwealth could contribute significantly to our endeavour to reverse the process of political decay and repression. It is for this reason that we again make this presentation to the CMAG and hope that the organisation will find time to peruse the document and respond positively.

We believe that the following conditions currently prevailing in Swaziland constitute serious and persistent violations of the Commonwealth principles of democracy and human rights:

BOX 1Serious and persistent violations of the Commonwealth principles of democracy and human rights by the government of Swaziland.· Legal prohibition of political party participation in formal politics including national elections. This prohibition is enshrined in the King's Proclamation of 1973 and the Establishment of Parliament Order of 1978. · Systematic persecution of pro-democracy activists because of their political beliefs. This has taken various forms ranging from direct to indirect political persecution including arrests and detention without trial and discrimination against known or suspected pro-democracy activists in employment and public appointments. · Concentration of the power to govern in the hands of the king. Under the current constitutional arrangement, the king exercises absolute power over the governance of Swaziland. This power is bestowed upon the king by the King's Proclamation of 1973 in which the previous king declared that:Now THEREFORE I, SOBHUZA II, King of Swaziland, hereby declare that, in collaboration with my Cabinet Ministers and supported by the whole nation, I have assumed supreme power in the Kingdom of Swaziland and that all Legislative, Executive and Judicial power is vested in myself and shall, for the meantime, be exercised in collaboration with a Council constituted by my Cabinet Ministers.

BOX 1 Continued· Systematic use of land and culture to oppress the rural population which accounts for about 75% of the total population. This is facilitated through various forms of punishment, mainly against families who have been reconstituted in official discourse as "unSwazi" and disloyal to the royal household. Such punishments include the merciless eviction of suspected families from their homes by local and central authorities. Such evictions are often violent and are characterised by the destruction of property and looting. Under the traditional system of rural settlement, rural residents have no constitutional right over land ownership. Instead, all land geographically prescribed as rural belongs to the Crown - the royal household. Consequently, residents on crown land can be evicted at whim if their opinions and conduct are found to be contrary to the interests of the Crown. In 2000, King Msawati III ordered a mass eviction of 200 families in the Macetjeni and Kamkhweli areas for refusing to acknowledge the appointment of the king’s brother as chief of these two communities. To date, these families are homeless despite interventions by various institutions including the High Court of Swaziland. Since the eviction, the police have maintained a blockade to prevent any attempt by these families to return to their homes. Recently, one of the evictees, Madeli, who was accompanied by his lawyer was refused entry to his home (Times of Swaziland, June 24, 2004). · Systematic suppression of the freedom of the press through the monopolisation of the electronic media and repressive legislation against the print media. In 2001, the government closed down two independent print media, The Guardian of Swaziland and The Nation, ostensibly for not complying with publication laws. However, it was obvious that the ban was politically motivated to punish these media organisations for reporting openly and critically on the system of governance. The systematic suppression of the freedom of the press has had wide ranging implications for building a forward-looking media in Swaziland. Although some may argue that recently the media has taken an active and critical investigation of government business and politics in general, much of this reporting is scapegoating and avoids direct reference to the people who wield real political power. In fear of victimisation, local journalist exercise a form of self-censorship, especially with regards to controversial issues related to the political conduct and leadership of King Mswati III. Often, they shift reporting on such issues away from the king to cabinet ministers and the king's advisory committee. Consequently, most local journalists have continued to publicly accept the king's actions and utterances as right and good for the country, to the point of worshipping him. Accordingly, the king is always represented in the local media as innocent, ill advised and/or not involved in making bad political decisions. We regard the current relationship between the media and the system of government to be unhealthy and unhelpful to the public. We believe that the media is an important social institution in a democracy and should play an active and nonpartisan role in society. Journalists have a professional and ethical obligation to inform the public about the conduct of government without fear or favour.

In our view, these conditions constitute the core power base of the autocratic regime and must be made subject to a serious CMAG review. In effect, such conditions hold the system together and have produced a culture of fear amongst the population and bad governance amongst those entrusted with public office. Through these conditions, bad governance has been normalised and is reproduced through generations of politicians appointed by the royal household or selected through the Tinkhundla electoral system. Consequently, generations of politicians have never had the political will to question the bad system of governance and address the fundamental political ills in the country. Instead, they have pledged to serve and protect the current system of bad governance. It is therefore not unexpected that practices of bad governance would remain a key feature of formal politics in Swaziland unless radical changes in the body politic are introduced. As long as the royal family remains the principal ruler, Swaziland will continue to provide space for:

· the violation of human rights,
· corruption and looting of national resources,
· incompetence and inefficiency,
· deficiency in checks and balances,
· growth of poverty and despair,
· neglect and abuse of the most vulnerable people in our society, particularly the poor in rural areas and the sick who have no land security and access to adequate medical service
· economic mismanagement,
· disrespect for the rule of law,
· abuse of political power by those entrusted with public office
· the concentration of political authority in the minority - the king and his cronies.

There is no doubt that these repressive conditions and practices of bad governance amount to gross violation of the rights of the people of Swaziland to live in dignity and to actively express their opinions in public without fear of victimisation. We have consistently argued that repressive policies and practices are bad for the country and have no place in modern politics.

In our assessment, the current system of governance constitutes a persistent and deliberate pattern of behaviour which undermines the fundamental principles of human rights and democracy enshrined in the Commonwealth declarations of 1971, 1991 and 1995. In these declarations the Commonwealth committed itself to working towards strengthening the democratic culture amongst member states and promoting best practice in areas such as elections, human rights and governance.

As a member of the Commonwealth and signatory to these declarations, Swaziland has an obligation to observe and contribute to the achievement of the organisation's goals. However, the royal family government has chosen to undermine the efforts and commitments of the Commonwealth. Seven years after the Singapore Declarations of 1971, the royal family under the leadership of King Sobhuza II enacted, by means of royal decree, the Establishment of Parliament Order of 1978. Consistent with the King's Proclamation of 1973, this Order prohibits party representation in the legislature and the election process. Thus, the Order directly contravenes the Singapore Declaration in which the Commonwealth Heads of Governments declared:

We believe in the liberty of the individual, in equal rights for all citizens regardless of race, colour, creed or political belief, and in their inalienable right to participate by means of free and democratic political processes in framing the society in which they live. We therefore strive to promote in each of our countries those representative institutions and guarantees for personal freedom under the law that are our common heritage.

As evident in the recent national elections of October 2003, the royal family government remains hostile towards the fundamental principles of open and democratic governance. Formal politics in Swaziland, including elections, remain a closed-shop practice in that they discriminate against those who express different political views from the royal family. Thus, since 1978 elections in Swaziland have never been open, democratic and meaningful to national development. The implications of this closed system for political, social and economic development are wide-ranging. These include a disturbing decay in the body politic, especially with regards to the integrity of national elections. Unlike in vibrant democratic societies where elections provide the vehicle for public assessment of national progress and development of alternative visions, elections in Swaziland are largely unproductive. In effect, they have helped increase the rate of political decay and bankruptcy which have been the distinctive features of the royal family government. There are various factors that have contributed to this situation.

BOX 2 Factors contributing to political decay:· Continued ban on political parties. Vibrant political parties are the lifeblood of any nation which commits itself to progress. As political parties seek to arouse interest in political matters and educate the public about their own policies and state policies, they are valuable resources for development. Most importantly, they provide a framework of checks and balances. Through a vibrant political party system, nation states are able to utilise a wealth of knowledge produced and distributed by free-thinking citizens. For thirty years, Swaziland has missed out on this vital resource. The Commonwealth Expert Team which observed the October, 2003 national elections describes this as a "long-running political rights crisis" (Report of the Commonwealth Expert Team, October, 2003, p.4).· The electoral policy of political discrimination. Under the Tinkhundla electoral system only individuals and not political parties can contest elections. Although some members of political parties participated in the 2003 national elections, they did so as independent candidates and not as representatives of political parties. Accordingly, the campaign process is restricted to people who wish to advance personal political ambitions with no concrete policies for future political, social and economic development. BOX 2 Continued· Traditional and legislative restrictions on freedom of expression. This has meant that candidates are unable to arouse public interest during the campaign period by actively discussing issues of national interest. Hence, political campaign in Swaziland rarely exists. If it does, it is sporadic, lukewarm and rarely attracts public interest. Essentially, there is no platform for election candidates to sell their 'policies' to the citizenry. In its final report, the Commonwealth Expert Team concluded that it believes:…the absence of political campaigning as it is understood elsewhere has reduced the opportunities for the candidates to interact with and be accountable to the voters, and has harmed the electoral process.· The considerable influence of traditional chiefs over the election process. These chiefs, who function as the eye of power for the ruling royal family household, share the responsibilities of organising and monitoring elections with the electoral commission. These responsibilities include voter registration, issuing of voter certificates, nomination of candidates and monitoring of elections. In view of their authority and influence in local communities, the direct involvement of chiefs in electoral matters has serious implications for free and fair elections. This is most evident in primary nominations in which authorities in chiefdoms have used their traditional authority to influence the outcome of these nominations. In one instance, a member of chief Maguga's inner circle, Elphas Mkhabela, told a public gathering that the chief had issued a directive that people under his chiefdom "…should not nominate any of the women who exposed their buttocks" to the chief in protest against the eviction of 200 families in the Macetjeni and Kamkhweli areas (see Times of Swaziland - Sunday Edition, August 24, 2003). Indeed none of these women were nominated. The Simon Mabuza versus Obed Dlamini High Court case is another example of electoral irregularities involving the influence of chiefdom on the election process (see The Swazi Observer, October 31, 2003).· Absence of an independent electoral body responsible for organising and monitoring elections. The current electoral commission is managed by the royal family government to further its ambition of maintaining its stranglehold on political power. Since the reconstitution of parliament in 1978, the absence of an independent electoral body has seriously compromised democratic principles of free and fair elections. Again, the Commonwealth Expert Team expressed its concerns with regard to this issue.BOX 2 Continued· Serious administrative inadequacies with regard to the maintenance of the voters' roll. As evidenced by the large cases of reported use of inauthentic voter certificates, there are serious loopholes in the system used to compile and maintain the electoral rolls. These loopholes have opened up space for electoral fraud. In its conclusion, the Commonwealth Expert Team (October, 2003) advised that: …present voter registration arrangements should be revised with a view to a complete re-registration, the use of a continuous voter registration system thereafter and the introduction of a photo-ID card system.Furthermore, as the Team observed, "… the voters' register was not displayed prior to the primary elections." This was in violation of the Voter Registration Order of 1992 which requires the public display of the voters' register at regional and sub- regional offices. The Team also expressed concerns that:contrary to the law, the register did not appear to be available at all regional and sub-regional offices prior to the national Elections, which meant that voters could not check on their inclusion in the list.The electoral commission’s decision to allow the former cabinet minister, Magwagwa Mdluli, to participate in the election after the High Court found him Guilty of electoral fraud, further illustrates the bankruptcy of the electoral system. · Absence of voter education and freedom of information. These are essential elements of democratic elections, yet the government has not committed itself to creating space for the development of effective voter education programs and opening access to important government records. Currently, there is a veil of secrecy about the ways in which the government does its business, its role and responsibilities. Consequently, voters and candidates alike have limited or no knowledge of government policies and how the broader political system operates. The restrictions on the freedom of the press have been crucial in maintaining the veil of secrecy. This has been especially notable with respect to Swaziland's only national radio broadcasting station, which is owned and managed by the state. For years, the Swaziland Broadcasting Service (SBS) has maintained a policy of silence with regard to issues considered to be political. Even issues relating to national elections are heavily censored. Reporting on national elections is confined to announcements authorised by the state-owned electoral commission. According to the Commonwealth Expert Team (October, 18, 2003), it was "…disappointed by the coverage provided by the electronic media, which is especially serious in the case of radio given its reach." Indeed, radio is the key medium in Swaziland and especially critical for the rural poor who have little access to the print media. BOX 2 Continued· The 1973 King's Proclamation and the culture of fear. Since 1973 the royal family government aided by a wide-range of institutions such as the police and traditional authority, has pursued a sustained and systematic campaign to persecute and alienate those calling for genuine political transformation. Thus elections in Swaziland are held under a political climate of fear, persecution, intimidation and exclusion. Candidates and their supporters are warned against making adverse references to the two most influential people in the ruling royal family household, the king and the queen mother. As evidenced by the indefinite detention and the subsequent sedition trial against the President of PUDEMO in 2002, public criticisms against the king often attract severe sanctions. Consequently, there was no critical debate during the election on the most important political issues such as the judicial crisis, HIV prevention, the ‘constitutional development’ process and royal expenditure including the proposed purchase of a jet for the king's use. Each of these issues relates directly to the political conduct and leadership of King Mswati III. However, public discussion of the king's role in these issues is vigorously suppressed. · The appointment system. The House of Senate, an important part of parliament with the power to give passage to or block bills, is an appointed rather than an elected chamber. The king appoints 77% of the members of the Senate and members of the new House of Assembly appoint the remaining 33%. Although some commentators regard the House of Assembly as representative, it is not fully elected. Ten of the seventy-six members of the House of Assembly are appointed outside the election process by the king. As noted above, those who are elected are allowed to stand only as individuals and not as party members. Most disturbing, the prime minister and cabinet are appointed by the king outside the parliamentary process. Consequently, the prime minister and his cabinet ministers are directly answerable to the appointing authority, the king, and not the people of Swaziland through parliament. · Political cronyism. Whilst excluding pro-democracy formations from participating in elections, the royal family-controlled electoral commission has created space for conservative political organisations such as Sibahle Sinje to secretly lobby the non-elected seats in parliament. In the previous term of parliament, members and supporters of Sibahle Sinje dominated these seats. According to the Swazi Observer (November 4, 2003), 60% of the seats in the current Senate have been allocated to Sibahle Sinje. Furthermore, members and supporters of this organisation have been allocated the majority of the ten non-elected seats in the House of Assembly. Disguised as a cultural organisation, Sibahle Sinje is a devout supporter of the absolute monarchy system. Unlike other political parties, it has carried out its political programs without state hindrance.

In view of these issues discussed above, claims that the recent national elections were democratic and that Swaziland is making progress towards democracy are misdirected and deceitful. As stated earlier, since the establishment of the Tinkhundla electoral system in 1978, there has never been a democratic election in Swaziland. The election process is grossly flawed and the electoral commission is hopelessly incompetent and lacks independence and direction. The large numbers of electoral fraud cases, which have been referred to the High Court, are testimony to this. These cases have exposed the fraudulent political nature of this system for all to see. Far from being democratic, the current electoral law functions as a brake on progress towards democracy and an accelerator towards political decay.

PUDEMO shares the conclusions and recommendations of the Commonwealth Expert Team in relations to the October 2003 national elections. In its final report, the Commonwealth Expert Team concludes:

We do not regard the credibility of these National Elections as an issue: no elections can be credible when they are for a Parliament which does not have power and when political parties are banned.

According to the Team, it is important to understand the context in which the government of Swaziland prepared and conducted the 2003 national elections. In its report, the Team identifies a number of "principal characteristics" of this context which include:

A political system which placed power in the hands of the King, the Queen Mother and their advisers; restrictions on and denial of fundamental rights, most seriously the banning of political parties; a refusal by Government to obey court judgements; and uncertainty regarding the country's future constitutional framework.

The Team observed that:

The ban on political parties has damaged Swaziland. It denies the right to freedom of association and prevents the formulation of national manifestoes, programmes and platforms on which candidates - and a potential government - can be judged by the voters. It also removes the opportunity for the democracy and transparency in candidate selection which party process can bring.

These observations are conclusive and it is disappointing that despite the persistent violation of the Commonwealth principles by the government of Swaziland, the CMAG has not acted. Although the Commonwealth Secretariat has voiced its concerns, it has done so through its "quiet diplomacy strategy". We appreciate the Secretariat's approach, but we believe that quiet diplomacy has its limits and that when it is continued indefinitely without producing change, it can harm rather than help resolve serious political issues. The inadequacies of the "quiet diplomacy" strategy are clearly illustrated by the unsuccessful attempts by the Commonwealth Secretariat to help resolve the constitutional and judicial crisis in Swaziland behind closed doors. Through this strategy, the Secretariat restricted its activity and knowledge of the situation by confining its mission to formal structures of governance. There was no attempt to open up dialogue with pro-democracy movements to hear their views and proposed solutions. Consequently, the general population represented by various pro-democracy movements was excluded from the Commonwealth Secretariat's activity in Swaziland. Fundamentally, the strategy of "quiet diplomacy" is secretive and arbitrary in its approach. It is therefore incongruent with the Commonwealth principles of transparency, accountability and multilateral approach to political problems.

As the Commonwealth mission was confined behind closed doors, there was limited information about the organisation's work in the country. Very few Swazis were aware of its presence. This had serious implications for the credibility of the Commonwealth and the struggle for democracy in Swaziland as the organisation's mission began to converge with the political interest of the ruling elite. This is particularly so in the current constitutional exercise which has been widely rejected by the population because of its attempt to obtain political legitimacy through fraudulent and repressive means. For example, the Constitutional Review Commission (CRC) and the Constitutional Drafting Commission (CDC) were not openly and democratically established. Instead, they were unilaterally established by the king. Furthermore, these bodies have categorically refused to accept group submissions from pro-democracy movements. Most seriously, the people were not adequately educated about the process of constitutional making and the form in which the submission of views should take. Consequently, the submission of views to the CRC began to look like a propaganda circus in which commissioners actively campaigned for the maintenance of the status quo. Despite these glaring anomalies, the Commonwealth Secretariat gave its undivided political support to the constitutional process. In addition, the Secretariat injected substantial financial and technical resources to the process including the drafting of the constitution, which was released in May 31, 2003. Through its Secretary-General, Don McKinnon, the Commonwealth Secretariat welcomed the draft constitution and claimed that:

In pursuit of his good offices role in Swaziland, the Secretary-General encouraged HM King Mswati III in reaching his decision to allow public input into the Constitutional Review Commission process. In addition, Commonwealth experts assisted with advice on a draft constitution… (Report of the Commonwealth Secretary-General, 2003, p.10).

However, the report does not mention the persistent problems with regard to the constitutional making exercise and the lack of political will in the royal family household to embrace democracy. Instead, it gives the impression that King Mswati III is receptive to the Secretary-General's "good offices" intervention and is making progress towards resolving the problems regarding the constitutional making process.

Perceptions that King Mswati III and his government have made genuine progress towards resolving the constitutional crisis and that the Commonwealth is assisting are grossly fraudulent. Such perceptions and statements do not help resolve the situation in Swaziland. Instead, they strengthen the regime's resolve to undermine calls for genuine political transformation by deceiving the international community into believing that it is doing something to resolve the political crisis.

Although McKinnon is pleased with the Commonwealth's contribution, the draft constitution makes grim reading. For instance, it seeks to maintain the status quo with regards to the distribution of executive and legislative powers. Chapter VII of the draft constitution vests all executive powers in the king including the authority to hire and dismiss members of the cabinet. Section 65 (1) states that "The executive authority of Swaziland vests in the King as Head of State and shall be exercised in accordance with the provisions of this Constitution." Through this arrangement, "…the King may exercise the executive authority either directly or through the Cabinet or a Minister" (Section 65 (3) ). This takes away the power of a cabinet to make independent political decisions. In effect, the draft constitution reaffirms the current constitutional arrangement which renders the cabinet politically impotent. Under the proposed constitution, the cabinet will continue to function as a conveyor belt for political decisions taken by the king and his cronies. Unlike in all representative democracies in which the prime minister is the head of government, Section 67 (2) of the draft constitution reduces the authority and status of the prime minister to that of "…the chairman of the Cabinet". As overseer of the executive arm of government, the king, under Section 71 of the draft constitution, "…may, after consultation with the Prime Minister, assign to the Prime Minister or any other Minister responsibility for the conduct of any business of the Government including the administration of any department of Government."

Similarly, Chapter VIII, Part 3(a), Section 107 (a) of the draft constitution reaffirms the current constitutional arrangement by castrating the legislative powers of parliament. According to Section 107 (a), "the supreme legislative authority of Swaziland vests in the King-in-Parliament". This power includes the authority of the king to block bills passed by both houses of parliament. Section 109 (1) clearly states that "A bill shall not become law unless the King has assented to it and signed it in token of that assent." Whilst in most representative democracies this is regarded as formality with no significant political power, under Section 118 (1) of the draft constitution, the authority to assent to bills contains real political power. According to this Section:

Where a bill, having been passed by both chambers of Parliament sitting separately, is presented to the King for assent, the King, acting in his discretion, may by message refer back either the whole bill or such provisions of the bill as the King may specify, for consideration at a joint sitting of the Senate and the House in accordance with the provisions of the First Schedule.

The legislative power of parliament is further castrated by Section 116 (6, a,b,c,d,e,f) which restricts parliament from debating bills which may affect the status of the monarchy and the administration of Swazi law and custom. This may sound plausible to those who view culture as separate from the political and the monarchy as a symbol of culture. However, in Swaziland culture functions as a dominant political ideology and the administration of Swazi law and custom is heavily influential in the governance of Swaziland. The Swazi National Council (SNC), dubbed the traditional arm of government, is heavily involved in all spheres of governance. The SNC sits with the king and advises him on major issues relating to the executive, the legislature, the judiciary and business owned by the state. Section 116 bears all the hallmarks of the controversial September 28, 2002 statement in which the former Prime Minister, and now member of the SNC, overruled two Court of Appeal rulings. He did so on the grounds that the rulings would have detrimental effects on the status of the king and the administration of Swazi law and custom. Section 116 is also reminiscent of the Attorney-General's assault on the High Court. In 2002, the Attorney-General led a delegation of armed generals to the High Court in an attempt to intimidate the judges into dismissing allegations that King Mswati III ordered the kidnapping of a young girl with the intention of forcibly marrying her. This case brought to the fore the arrogance and the aggressive attitudes of the traditional arm of government towards the judiciary. The royal family administration at Ludzidzini repeatedly disrespected court orders related to this case.

These incidents show that Mswati's regime has no respect for the rule of law and that Section 116 is not designed to benignly protect symbols of culture. It is a malignant step in the regime's desire to further consolidate its absolute power. In 2002, the parliament was helpless and could not intervene in these belligerent attacks on the rule of law. The current government continues to dishonour the Court of Appeal rulings. If parliament had legislative independence and power, it could have exerted pressure on the government, up to the point of withholding national supply, to ensure compliance with the Court of Appeal rulings.

In addition to these attacks on the judicial system, Mswati has openly displayed his control over the parliament itself. On April 11, 2003, less than a month before the public release of the draft constitution, King Mswati III ordered parliament to approve the budget without debate. According to the Times of Swaziland report (April 12, 2003), members of parliament were not happy with this directive, but "they could not voice out their concerns." The king's directive was historically significant in that it was issued on the eve of the Remembrance Day that marked 30 years since Swaziland was deprived of its fundamental democratic values and human rights. As discussed earlier, in his proclamation to the nation on April 12, 1973, the late King Sobuza II closed down parliament and declared himself an absolute monarch. In March 10, 2004, parliament was also helpless when King Mswati III sacked the speaker of parliament.

Thus culturally speaking, members of parliament have acquired the identity of Tinkhabi or oxen with no productive capacity. That is, they can pretend to make laws, but in reality their powers to do so are completely removed by the King's Proclamation of 1973, The Establishment of Parliament Order of 1978 and now by the proposed constitution. Furthermore, the draft constitution upholds the power of the king to appoint twenty of the thirty members of the House of Senate and ten of the seventy-six members of the House of Assembly. Under the draft constitution, the House of Senate will remain fully non-representative. Surely, this does not fit the Commonwealth's definition of democratic electoral system and best practice.

Although Chapter VIII, Section 80 of the draft constitution states that "the system of government for Swaziland is a democratic, participatory, tinkhundla-based system which emphasises devolution of state power from central government to tinkhundla areas, the system can be best described as autocratic and centralised. The assertion that state power is devolved to inkhundla or electoral constituencies is a myth. In reality, tinkhundla authorities function as agents of the ruling royal family or the "king's eyes" as they are known locally. As Section 81 (2) (a) states, only the king can establish an inkhundla. Accordingly, such structures are subject to political control and manipulation from the central traditional authority.

Most disturbingly, the draft constitution gives no commitment to establishing a democratic system based on organised representation. For instance there is no mention of political parties and their role in Swazi politics. Instead, it embraces the current tinkhundla system of fragmented representation, which, as discussed earlier, has no legislative power. Section 80 (2) (a), for example, states that under the tinkhundla system "individual merit" is "a basis for election". Claims that the draft constitution provides for freedoms of association and expression are nonsensical given the wide range of restrictions on these freedoms. Although Chapter IV, Section 15 (1) (b) guarantees "freedom of conscience, of expression and of peaceful assembly and association", these freedoms can be extinguished by the clause on the "interests of defence, public order, public safety, public morality…". These issues, especially public order and public safety, are heavily politicised and are regularly used to justify the repressive policies of the current regime. Opposing opinions and public gatherings of opposition political parties are always regarded as not in the interest of public order and public safety. The police use the Public Order Act to violently break up such public gatherings. The subjugation of the rights and freedoms enshrined in the draft constitution is a clear indication that these issues will remain active in reproducing the current system of governance.

The freedoms enshrined in Chapter IV, Section 15 (1) (b) are also threatened by Section 37 (Declaration of emergency). According to Section 37 (2) (a), the king may declare a state of emergency by proclamation if:

There is action taken or immediately threatened by a person or body of persons of such a nature or on so extensive a scale as to be likely to endanger the public safety or to deprive the community or a significant part of that community of supplies or services essential to the life of the community.

This clause is imported from the late King Sobhuza II's Proclamation of 1973 in which he justified the decision to repeal the Independence Constitution of 1968 and declare a state of emergency (still current) by claiming that the repealed Constitution was a threat to public safety and order by permitting:

…the importation into our country of highly undesirable political practices alien to, and incompatible with the way of life in our society and designed to disrupt and destroy our own peaceful and constructive and essentially democratic methods of political activity; increasingly this element engenders hostility, bitterness and unrest in our peaceful society.

Here, King Sobhuza II refers to the provision for a multi-party democratic system which, in the first post-independence election of 1972, saw a burgeoning political opposition led by the Ngwane National Liberation Congress. This threatened to unseat the power base of the royal family represented by the Imbokodvo National Party. Hence the Proclamation of 1973 and its justification in terms of public order and safety. Through this Proclamation, King Sobhuza II expressed profound fear of democracy and a politically active and knowledgeable citizenry. The suppression of freedoms of speech, assembly and association was his response to this fear. From readings of the Proclamation and analyses of its effect over the 30-year period, it is conclusive that the main goal was to create a docile subject population with unquestioning loyalty to the king and the royal family.

Thus Section 37 (2) (a) of the draft constitution must be read as an expression of this fear of political opposition and it is designed to suppress mass political dissent. It must be also seen as response to the border blockade campaign carried out by the Swaziland and South African labour movements supported by PUDEMO. Under Section 37 (2) (a), a threat of mass industrial action by the labour movement in Swaziland would be sufficient to trigger a state of emergency. Similarly, a threat of mass protests and rallies by political movements can trigger the declaration of a state of emergency which, according Section 37 (7), "…may be extended from time to time for periods of not more than three months at a time by a resolution passed by a three-fifths majority at a joint sitting of all the members of Senate and the House." This means that a state of emergency may continue to exist as long as a three-fifths majority of parliamentarians vote favourably. As discussed earlier, parliament under both the current system and the draft constitution has no independent political power. There is, therefore, no doubt that under this constitutional arrangement once a state of emergency is declared it will remain valid for a very long time. If the proposed constitution becomes law, it is highly probable that the people of Swaziland will be thrown back to history. This is frightening to the majority of Swazis calling for genuine political transition from repressive governance to a political system that will hold the rights and freedoms of the people in high regard.

Most frightening about Section 37, especially Subsection 8 (c), is that it resurrects the notorious 60-Day Detention Without Trial Order established under Decree No.2 of the King's Proclamation of 1973. In this Proclamation, King Sobhuza II decreed that:

For a period of six months from date hereof, the King-in-Council may, whenever they deem it necessary in the public interest, order the detention of any person subject to any conditions they may impose for any period of time not exceeding sixty days in respect of any one order. Any person released after such detention may again be detained as often as it may be deemed necessary in the Public interest. No court shall have power to enquire into or make any order in connection with any such detention.

From the early 1970s until it was rescinded in the mid-1990s, this Order was ruthlessly applied to suppress political dissent. The late leader of the Ngwane National Congress, Ambros Zwane, was repeated incarcerated under this Order. Subsequently, his organisation succumbed to these draconian laws and disbanded indefinitely until it was reconstituted the late 1990s. In 1990, the entire leadership of PUDEMO was detained without trial under this Order. Section 37 (8) (c) of the draft constitution contains similar repressive elements which include the detention of persons without trial for fourteen (14) days "and thereafter at intervals of three months…". Consistent with the 60-Day Detention Without Trial Order, normal judicial procedures are suspended and the courts will have no jurisdiction to review such detention. Instead, such authority is bestowed upon a tribunal, which, according to Section 37 (9), may make recommendations to the king with regard to the detention. Tribunals are notoriously famous for their reputation to protect the status quo, lack of transparency and disregard for due process.

Another disturbing aspect of the draft constitution is Section 39. This Section completely extinguishes the freedom of conscience, of expression and of peaceful assembly and association set out in Chapter IV, Section 15 (1) (b) of the draft constitution. For example, these freedoms are not protected by the "prohibition of certain derogations" during a state of emergency. This means that during public emergency the state can, just as it did in 1973, strip the population of the freedom to peacefully express its opinion through street protests, speeches and writings. This also means that the freedom to belong
to organisations would be taken away.

It seems inconceivable, but the Commonwealth Secretariat, despite its rhetoric on democracy and human rights, has colluded in drafting a constitution that legitimises Swaziland's authoritarian system of governance. In all respects, the draft constitution is a major setback to the struggle for democracy. It must be read as a coup d'état, effected by a cabal of members of the royal family and Commonwealth constitutional experts. Metaphorically, the draft constitution is a wolf dressed up in sheepskin, capable of inflicting substantial damage on the struggle for democracy.

The labour movement, together with civic and political organisations, has challenged the validity of the proposed constitutional arrangement contained in the draft constitution. One of the key issues raised by these organisations is that the draft constitution does not represent the aspirations of the people of Swaziland. Media coverage of the CRC's encounters with the people of Swaziland, shows that Swazis want a democratic system based on multi-party representation. With regard to the status of the monarchy, it was evident from media coverage that the people would prefer a constitutional monarchy to the current absolute monarchy. Thus, through its involvement in the production of the draft constitution, the Commonwealth Secretariat has colluded with the royal family to quash the aspirations of the Swazi nation. It has also undermined its own organisational values and political goals set out in the Harare Declaration. Instead of throwing its weight behind the people of Swaziland, the Commonwealth Secretariat chose to establish a partnership with a regime that has ruthlessly oppressed our people. In our view, the Secretariat has acted in bad faith by giving a helping hand to a regime that has persistently exhibited hostility towards the Harare Declaration. Most seriously, the Commonwealth Secretariat has, through its "good offices" strategy, misled the international community into believing that there is a will to change amongst the ruling elite in Swaziland. This is the same strategy the government of Swaziland has pursued for many years. Deceit and evasion have been important political resources for the government of King Mswati III.

We challenge the Commonwealth Secretariat and the CDC to produce evidence that supports their position on the system of government proposed in the draft constitution. We also challenge them to show why the whole process of constitutional making should not be declared invalid as it was fraudulently established and does not reflect the wishes of the people of Swaziland which include:

· an open and inclusive approach to the constitutional making process. From the onset, the people of Swaziland demanded ownership to this process. However, eight years on, the government of Swaziland and the Commonwealth Secretariat have refused to heed this demand.

· the repeal of the King's Proclamation of 1973 and the reinstatement of the Independence Constitution of 1968 as an interim law. This will reinstate the rights and freedoms of the Swazi people to freely and actively participate in party politics and to publicly express their political opinions as individuals or through political and interest groups without fear of harm,

· an end to state violence, intimidation and persecution against democratic, human rights and workers organisations. Such hostility is counterproductive to a constitutional making process as it seeks to instil fear within the population. On August 2003 the Commonwealth had first-hand experience of this hostility when the police violently attacked peaceful protests during the Commonwealth-organised international SMART Partnership conference. Disturbingly, the Commonwealth has, to this date, made no public mention of the violent attack which occurred in the full view of its senior officials,

· a national convention to discuss fundamental constitutional issues,

· an elected constituent assembly with sovereign powers to guide the constitutional making process. This has given birth to the National Constituent Assembly (NCA) movement. Recently NCA joined the labour movement and liberation political parties to lodge an application in the High Court challenging the legality and political legitimacy of the constitution making exercise (see Times of Swaziland report, June 17-18, 2004). As early as 1992, PUDEMO, in its Way forward towards a constituent assembly through a negotiated settlement, expressed the views and aspirations of the people of Swaziland on this issue.

· a clear process of adopting the new constitution. The Royal family regime and the Commonwealth Secretariat have not communicated the mechanism of adopting the constitution to the public,

· free press coverage of the constitutional making process. Although the press widely covered the so-called consultation process, at times it was heavily censored. There was very limited coverage of how the Constitutional Review Commission and the Constitutional Drafting Commission were dealing with the volumes of information they have gathered. Most disturbingly, the drafting process took place in complete secrecy,

· a comprehensive and nonpartisan civil education on constitutional matters. In the past eight years, the Commonwealth Secretariat injected substantial resources into the royal family propaganda programme disguised as civil education. This has produced nothing other than confusion, disenchantment amongst the population and created space for theft and misuse of public funds by members of the CRC.

While the Commonwealth Secretariat, CHOGM and CMAG have ignored the political repression in Swaziland, we are encouraged by the findings of the Commonwealth Expert Team. However, we note with regret from the Commonwealth Secretariat press statement of November 5, 2003 that:

The members of the Team were invited in their individual capacities and it was made clear in advance that the views they expressed regarding the elections would be their own and not those…of the Commonwealth Secretariat.

It is therefore disappointing that these important findings have not been taken into consideration by the CMAG in its recent meeting. Although the Commonwealth Secretary-General, Don McKinnon, pledged to pursue these findings with King Mswati III and the government of Swaziland, he has not accorded these issues the seriousness and urgency they deserve by bringing them to the attention of the international community through the CMAG. In a letter to the Secretary-General dated October 23, 2004 (sic), the Expert Team urged Mr McKinnon "…to press the King of Swaziland as urgently and as strongly as possible to adopt…" genuine political change. According to the Expert Team, two main issues require urgent action from the Commonwealth Secretariat. These include changes in the draft constitution "…to provide for:

· a transfer of power from the king to the Parliament and Government, and
· freedom of association."

The oppressed people of Swaziland are hopeful that in the light of the Expert Term findings, the Commonwealth Secretariat, the Commonwealth Ministerial Action Group and the Commonwealth Heads of Government Meeting will review their laissez faire position on the absolute monarch government. We particularly appeal to the CMAG and the Commonwealth Parliamentary Association (African Region) to take these findings and the deteriorating political situation in Swaziland into consideration during their respective meetings on September 25, 2004 and August 7-15, 2004. We note with interest that the regional meeting of the Commonwealth Parliamentary Association will be held in Swaziland.

Once again, we call upon the Commonwealth Secretariat to honour its commitment to the Harare Declaration and desist from supporting the repressive regime in Swaziland.

Signed:
Jabulane Matsebula
The People's United Democratic movement (PUDEMO)
Representative
Australia, Asia and the Pacific Region