SUMMARY OF THE DRAFT CONSTITUTION

The Constitution is divided into twenty chapters. The full version may be downloaded here; if you read the complete version, you will note that in the Introduction it states that they - meaning Government - leave it to the courts to decide the legality of any section contained within it, rendering the entire document a worthless piece of paper.

Chapter I: The Kingdom and its Constitution

Chapter I of the Constitution provides that Swaziland is a sovereign state

There is a supremacy clause stating that all laws of the country should conform to the provisions of the Constitution for them to be valid.

The existing national antherm and flag continue to be the anthem and flag of the country with the allowance, of both, to be changed.

Siswati and English are recognised as the official languages.

Chapter II: Religion

Chapter II provides that Christianity is the official relihion of the country whilst acknowledginig the practice of other religions.

Chapter III: Monarch

Chapter III provides for the office of King as Head of State with rights, prerogatives and obligations as are conferred by the Constitution and any other law and that such rights, prerogatives and obligations shall be exercised in terms of this Constitution.

Provision for succession to the throne is made and the position of Crown Prince is recognized and that the Crown Prince shall only asend the throne when he has attained the age of eighteen years.

The office of the Ndlovukazi as Regent is provided for and that, if for whatever reason the King is unable to perform the functions of his office the Regent shall perform those functions, the Regent shall be assisted bt the Authorised Person in-Libandla. Where the Regent and the Authorised Person are not in agreement on any matter the matter shall be referred to Bantfwabenkhosi and chiefs.

Provisions for the civil list and renumeration; immunity of the King, Regent and Authorised Person is made.

Under this chapter a body, known as the King's advisory Council is established. This body shall be appointed by the King and be responsible for advising the King.

Chapter IV: Protection and Promotion of Fundamental Rights and Freedoms.

Chapter IV is what is commonly referred to as the Bill of Rights. Fundamental human rights and freedoms of the individual are declared and guaranteed. It should be noted that these rights and freedoms are not absolute. Consequently certain limitations are imposed in the exercise and enjoyment of these rights and freedoms. These rights and freedoms are enumerated as follows:-

1. respect for life, liberty, security of person and equality before the law and equal protection of the law.
2. freedom of conscience, expression and peacefull assembly and association
3. protection of the privacy of the home and other property of the individual; and
4. protection from the deprivation of property without compensation except as provided by law

The Legislature, Executive and Judiciary and all organs and agencies of government are enjoined to respect the rights and feredoms, without regard to gender, race, religion etc.

There is also recognition and protection of rights of what is commonly referred as marginalized groups, ,such as women, children and persons with disabilities.

Not only does this chapter declare and guarantee human rights and frfeedoms it further provides mechanism for redress in the event of violations of same.

Notwithstanding the fact that these rights and freedoms have been declard and guaranteed certain derogations are permitted in situation of an emergency. A clear procedure for declaring state emergency and circumstancecs that warrant a declaration of a state of emergency are set out. Further, to ensure that there is never a perpetual state of emergency thus a perpetual violation of rights and freedoms time limits of state of emergency, if declared, are prescribed.

As indicated that a declaration of a state of emergency constitute a derogation to the protection of rights and freedoms it is noteworthy that the Constitution provides that notwithstanding such declaration there are certain rights and freedoms that cannot be compromised. These are the rights and freedoms to:-

1. life, equality and severity of person;
2. right to fair hearing;
3. freedom from slavery or servitude; and
4. freedom from torture, cruel, inhuman or degrading treatment or punishment.

Chapter V: Citizenship

Chapter V deals with the issue of citizenship, its aquisition and loss. It declares that a person who, before coming into force of the Constitution shall continue to be a citizen. Provision of citizenship by descent, operation of law, birth, amrriage and registrtation is made.

In so far as citizenship by registration is concerned a Citisenship Board is established. thi sis the authority that is responsible for vetting people who seek to be registered as citizens of the countrty and accordinly grant or not grant citizenship.

Citizenship of posthumous children and foundlings is guaranteed and also citizenship of persons born aboard a ship or aircraft registered in swaziland is provided for.

Chapter VI: Directive Principles of State Policy & Duties of the Citizen

This chapter contains ideals towards which all organs and agencies of the state, citizens, organisations and other bodies and persons should strive to achieve in applying or interpreting this Constitution. Even though these ideals are not enforceable in law.

The objectives are categorised into: law enforcement; political; economic; social; foreign policy; independence of the judiciary.

Duties of a citizen, such as the duty to uphold and defend the Constitution, respect the rights, freedoms and legitimate interests of others, promote democracy and the rule of law, are enumerated.

Chapter VII: Executive

The Constitution vests executive authority in the King as Head of State and that such authority may be exercised by the King directly or through the Cabinet or a Minister.

As Head of State the King has authority to, among other things, assent to and sign Bills; summon and dissolve Parliament; receive foreign envoys and appoint diplomats; issue pardons, reprieves or commute sentences; and confer honours. A procedure to be followed by the King in the exercise of his functions is provided.

A Cabinet of Ministeres is established which is headed by the Prime Minister. The Prime Minister is appointed by the King acting on recimmendation of the King's Adbisory Council. Ministers are appointed by the King from both chambers of Parliament on the recommendations of the Prime Minister.

Circumstances under which the Prime Minister or a Minister may vacate office are prescribed including Parliament's power to issue a vote of no confidence on the Prime Minister, a Minister and on the Cabinet.

Provision is made for the appointments of the Secretary to cabinet, Principal Secretaries and the Attorney-General. Functions of the Attorney-General are spelt out.

Chapter VIII: The Legislature

This chapter provides that Swaziland's political system is a democratic, participatory, tinkhundla-based system.

Swaziland is divided into several tinkhunlda for purposes of administration and election. Regional councils are esablished and are responsible for the co-ordination of economic developemnt in the regions. Each region is headed by a Regional Administrator. The Regional Administrator is appointed by the King.

Right to representation and the right to vote at elections is provided for. Special provision for the representation of marginalizes groups is made and in particular the issue of women representation. Qualifications and disqualifications as voter are provided for.

The Elections and Boundaries Commission is established withthe mandate of overseeing and supervising elections, the registrationof voters and reviewing and determining the boundaries of tinkhundla areas for purposes of elections.

The Parliament of Swaziland is established and it consists of a Senate and a House of Assembly. the Senate is to consists of not more than thirty-one members and the House of Assembly to consist of not more than seventy-six people.

Supreme legislative authority is vested in the king-in-Parliament and accordingly such authority shall be exercised through bills passed by both chambers.

A Parliamentary Service Board is established with the responsibility of ensurig proper and effective administrtration of Parliament. the ordinary life of Parliament is five years.

Chapter IX: Judicature

The Judiciary of Swaziland consists of the Superior Courts i.e the Supreme Court and High Court and such other specialised, subordinate and local courts or tribunals as Parliament may establish. The Judiciary is vested with all judicial power and accordingly no organ or agency of the Crown shall have final judicial power. The independence of the judiciary is guaranteed and as such no authority shall interfere with judicial officers in the discharge of ther judicial functions. To give effect to the independence of the judiciary, organs or agencies of the Crown are required to give the courts such assistance as the courts may resonably require protecting the indepence. The Chief Justice is the head of the judiciary with the added responsibility of making rules for regulating the practice and procedure of the superior and subordinate courts.

The Supreme Court is made up of the Chief Justicec and not less than four other Justices and is the final court of appeal. The Supreme Court has supervisory and review powers.

The High Court being a component of the superior courts of Swaziland is made up of the Chief Justice (ex officio), not less than four justices and other such justices of the Superior Court of Judicature as may be assigned by the Chief Justice. The High Court has unlimited original jurisdiction in civil and criminal matters. It also has appellate and revisional jurisdiction. Added to that the High Court has power to enforce fundamental human rights and freedoms guaranteed by the Constitution and to hear and determine any matter of a constitutional nature.

Justices of the superior courts are appointed by the King on advice of the Judicial Service Commission. Qualifications for appointment as a justice of the superior courts are set out. The tenure of a justice of the superior courts is guaranteed to that extent a justice shall vacate office at the attainment of the retiring age unless the appointment is sooner revoked following a stated procedure and circumstances.

The issue of appointement of justices on contract is provided for, but such appointment to be done for a perios of seven years after the commencement of this Constitution.

The Judicial Service commission is established and its functions are spelt out.

Chapter X: Director of Public Prosecutions and Commission on Human Rights and Public Administration

The appointment of Director of Public Prosecutions is provided for and that for a person to qualify to be appointed such a person should possess the same qualifications as a judge of the superior courts. The Director of Public Prosecutions has the responsibility of instituting and undertaking criminal proceedings against any person before a court in respect of any offence alleged to have been committed, in the exercise of his powers the Director of Public Prosecutions is to be independent.

A Commission on Human Rights and Public Administration is established which shall be headed by a Commissioner who qualifies to be appointed as a judge of the superior courts. the commission's functions are, among others, to investigate complaints concerning alleged violations of fundamental rights and freedoms under the Constitution and also investigate complaints concerning alleged violations of fundamental rights and freedoms under the Constitution and also investigate complaints of injustice, corruption, abuse of power in officec and unfair treatment of any person by a public officer in the exercise of official duties.

Chapter XI: Public Service

This chapter establishes the Public Service of Swaziland to be administered through independent service commissions. The service commissions are to be manned by appropriately qualified persons, who shall be appointed by the king after recommendations by the responsible Minister.

The responsibilities of the Service Commiccion include the selection of candidates for appointments, confirmation of appointments, termination of appointments, disciplinary control and removal from office of officers within the public service.

It should be noted that the Constitution does allow for the establishment of further service commissions. Provisions regarding the appointment and functions of officers in the Police Forcec, Correctional Servicees and the Defence Force is made.

Provisions for the protection of public officers and protection of pension rights and powers of commsissions over pensions is made.

Chapter XII: Public Fianace

The Consolidated Fund is established into which all moneys belonging to the Government is to be paid. No moneys can be withdrawn from the Consolidated Fund without the authority of Parliament. the Minister responsible for fianace is given power to borrow money on behalf of Government.

Provision for the Central Bank of Swaziland is amde and it shall be the sole authority responsilble for the issuing of the currency of the country.

The office of the Auditor-General is established. The functions, powers and manner of his removal from office is provided for.

Chapter XIII: Land, Minerals, Water and Environment

Chapter XII provides forth management and protection of land, minerals, water and environment.

Land

All land in Swaziland, save for privately held title-deed land, is vested in the Kin in trust for the Swazi nation. provision is made giving equal access to land to all citizens of Swaziland for normal domestic purposes.

There is established a Land Management Board which shall be responsible for the overall management, and for the regulation of any rights or interest in land whethere privately owned or vested in the King in trust for the Swazi Nation.

Minerals

All minerals and mineral oils in, under or upon any land in Swaziladn is vested in the King in trust for the Swazi nation. There is establisef the Minerals Management Board whose function is to ensure overall management of minerals and making of grants. leases or other dispositions conferring rights or interests in respect of mineral oils in Swaziland.

Water

There cannot be private ownership of water naturally found in Swwaziland.

Environment

Every person shall promote the protection of the environment and the government shall enact laws for the protection of the environment.

Chapter XIV: The local Government

In terms of this Chapterm parliament is empowered to provide for the establishment of a single country-wided system of local government which is based on the Tinkhundla system of government. Swaziland will be divided into as many local government areas as the Elections and Boundaries Commission may recomment. The Capter also provides for the administration of duties, subventions, power to raise revenues and constitutions of te local governments.

Chapter XV: Traditional Institutions

The following Swazi Traditional institutions are protected and guaranteed:-

1. Ngwenyama
2. Ndlovukazi
3. Bantfwabenkhosi (Princes of the Realm)
4. Chiefs
5. Sibaya
6. Umntfwanenkhosi Lonkhulu
7. Tindvuna (Royal Governors)

Chapter XVI: Internatinal Relations

Chapter XVI provides for various aspects relating to diplomatic relations. Swaziland shall continue to have diplomatic relations with other countries and organisations.

The government may execute or cause to be executed an international agreement in the name of the Crown but shall be subject to ratification and become binding once Parliament approves it.

Chapter XVII: Leadership Code of Conduct

Chapter XVII provides for the Leadership Code of Conduct. the Code of Conduct seeks to ensure that those in leadership are trransparent in their activities and accountable to the people they represent or serve.

Certain persons are obliged, in terms of this chapter, to declare their assets and liabilities.

There is a penalty for failure to comply with the Code. the integrity Commission has also been established. It will be respnsible for receiving the written declaration of these assets and liabilities.

Chapter XVIII: Amendment of the Constitution

Chapter XVII provides for the amendment of teh Constitution. Different methods for amending the Constitution are provided for, depending on whether the provision sought to be amended is specially entrenched or just an entrenched provision.

Chapter XIX: Miscellaneous

Chapter XIX provides for the following miscellaneous issues:-

• Council of Chiefs
• The Law of Swaziland
• Subordinate legislation
• Reference to public office
• Appointments, resignations and removal from office
• Power to amend or revoke instruments
• Jurisdiction of the High Court