Abstract

MASEKO, Thulani. The drafting of the Constitution of Swaziland, 2005. Afr. hum. rights law j. [online]. 2008, vol.8, n.2, pp.312-336. ISSN 1996-2096.

Swaziland gained independence from the United Kingdom on 6 September 1968, under a written, Westminster-type Constitution (the Independence Constitution). This Constitution was unlawfully repealed by His Majesty King Sobhuza II on 12 April 1973, promising that all the people of Swaziland would craft their Constitution in complete liberty and freedom, without outside pressure. In pursuit of this goal, a number of commissions were established to solicit the citizens' views on the type of constitution they wanted to govern them. Because the Independence Constitution was abrogated on the ground that it was imposed by departing colonial masters, it was expected that the Constitution to be drawn after independence would truly reflect the aspirations of all the people. This article, therefore, interrogates the question whether, in light of the wave of constitution making in Africa in the 1990s, the Swaziland constitution-making process fulfilled the requirements of an all-inclusive, participatory, transparent and accountable process. The article examines the independence of the King's appointed constitutional review bodies, given that, in order to produce a credible, legitimate and durable constitution, the review bodies must be as independent from the government as possible. Further, the article looks at the role of the African Commission on Human and Peoples' Rights as well as the Swaziland courts in enhancing a people-driven process. The article concludes that the Swaziland constitution-making process did not herald a departure from the constitutional order that existed prior to the adoption of the Constitution of the Kingdom of Swaziland Act 1 of 2005. Despite the adoption of this Constitution, the Kingdom does not qualify as a constitutional and democratic state with a justiciable bill of rights capable of enforcement by an independent judiciary.

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