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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.8 n.2 Pretoria  2008

 

ARTICLES

 

The drafting of the Constitution of Swaziland, 2005

 

 

Thulani Maseko

Attorney of the courts of Swaziland

 

 


SUMMARY

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 This Constitution was unlawfully repealed by His Majesty King Sobhuza II on 12 April 1973, promising that all the people of Swaziland would craft their Constitution in complete liberty and freedom,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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* BA, LLB (Swaziland), LLM (Human Rights and Democratisation in Africa) (Pretoria); trmaseko@yahoo.com. While pursuing his LLM, the author did short courses on Election Observation and International Law. He served an internship at the Constitutional Court of the Republic of South Africa as Justice Pius N Langa's clerk. He is a founder member of the National Constitutional Assembly (Swaziland) as well as Lawyers for Human Rights (Swaziland). As a practising lawyer, he has handled a number of human rights cases and he successfully represented Lawyers for Human Rights in a complaint filed with the African Commission on Human and Peoples' Rights against the Kingdom of Swaziland.
1 V Hart 'Democratic constitution making' Special Report 107, United States Institute of Peace http://www.usip.org/pubs/specialreports/sr107.html (accessed 3 August 2005).         [ Links ] See also G Arnold Africa: A modern history (2005) 813,         [ Links ] where he writes: 'No other region of the world has seen so much constitution making - or re-making - as Africa over the last 40 years and the new constitution worked out by the Constitutional Commission for Eritrea (CCE) following the end of its war of independence from Ethiopia in 1991 is worth examining. The constitution had to serve the basic aims of nation building, equitable development and stability, the building of democracy, the protection of human rights and assurance of popular participation.'
2 JSM Matsebula A history of Swaziland (1988) 265 states that the Royal Constitutional Commission,         [ Links ] appointed by King Sobhuza II on 6 September 1973, recommended that Swaziland should be declared a no-party state.
3 Declaration on Unconstitutional Changes of Government (2000) AHG/ Dec.150 (XXXVI) http://www.africa-union.org/root/au/Documents/Decisions/hog/10HoGAssembly2000.pdf (accessed 15 August 2005).         [ Links ]
4 J Oloka-Onyango & J Mugaju 'Introduction: Revisiting the multiparty versus movement system debate' in J Oloka-Onyango & J Mugaju (eds) No-party democracy in Uganda myths and realities (2000) 1.         [ Links ]
5 Eg, as long ago as 12 April 1973, His Majesty King Sobhuza II of Swaziland stated as follows when he unlawfully repealed the 1968 Independence Constitution: '[t]hat I and all my people heartily desire at long last, after a long constitutional struggle, to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty without outside pressures; as a nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good government and the happiness and welfare of all our people' (my emphasis).
6 T Clark Great speeches of the 20th century (2008) 161 171.
7 J Hatchard et al (eds) Comparative constitutionalism and good governance in the Commonwealth: An Eastern and Southern African perspective (2004) 22. Of course, in terms of the King's Proclamation to the Nation of 12 April 1973, according to which His Majesty King Sobhuza II repealed the 1968 Independence Constitution, the King said: 'Now therefore, I, Sobhuza II , King of Swaziland, hereby declare that, in collaboration with my cabinet 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 time being, be exercised in collaboration with my Cabinet Ministers.' This position was reaffirmed by His Majesty King Mswati III after he had assumed the throne in 1982 and he declared by King's Decree 1 of 1982, when he declared: 'I hereby reaffirm that in terms of Swazi law and custom, the King holds the supreme power in the Kingdom of Swaziland and as such all executive, legislative and judicial powers vests in the King who may from time to time by decree delegate certain powers as functions as he may deem fit.'
8 Constitution of Lesotho Order 16 of 1993 http://www.lesotho.gov.ls/documents/Lesotho_Constitution.pdf (accessed 26 August 2005).
9 Sec 44 of the Constitution of Lesotho 1993 reads: '(1) There shall be a King of Lesotho who shall be a constitutional monarch and head of state.'
10 Swaziland Independence Constitution Act 50 of 1968, Statutes of Swaziland.
11 C Fombad 'The Swaziland Constitution of 2005: Can absolutism be reconciled with modern constitutionalism?' (2007) 23 South African Journal on Human Rights 93 108.
12 The coup occurred in 1994. See in this regard Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000).
13 M Sinjenga 'Constitutionalism in Africa: Emerging trends: The evolving African constitutionalism' (1998) 60 The Review 23. See also Hatchard (n 7 above) 314.
14 As above.
15 J Baloro 'Democracy and human rights in Swaziland: Study of the law and practice regarding free association and assembly' in C Okapaluba et al (eds) Human rights in Swaziland: The legal response (1997) 30-31.
16 A de Smith The new Commonwealth constitutions (1964) 106.
17 Reproduced in Hatchard (n 7 above) 1.
18 As above.
19 IG Shivji 'State and constitutionalism: A democratic perspective' in IG Shivji (ed) State and constitutionalism: An African debate on democracy (1991) 27.
20 The Internal Commission of Jurists (ICJ) organised the African Conference on the Rule of Law consisting of 194 judges, practising lawyers and teachers of law from 23 African nations as well as countries of other continents, assembled in Lagos, Nigeria, in January 1961, to discuss freely and frankly the rule of law with particular reference to Africa, and reaffirmed the Act of Athens and Declaration of Delhi, which in turn reaffirmed the concepts of constitutionalism;http://www.globalwebpost.com/genocide1971/h_rights/rol/10_guide.htm#lagos (accessed 8 September 2005).
21 KC Wheare Modern constitutions (1951) 7 writes that '[Constitutions spring from a belief in limited government'.
22 DT Blutleritchie 'The confines of modern constitutionalism' (2004) 3 Pierce Law Review 1 http://ssrn.com/abstract=1031529 (accessed 21June 2005).
23 Blutleritchie (n 22 above) 6.
24 SBO Gutto 'The rule of law, democracy and human rights: Whither Africa?' (1997) 3 East African Journal of Peace and Human Rights 130 133.
25 This is illustrated by the fact that the AU adopted the Kigali Declaration in 2003, para 28, which emphasises the role played by civil society organisations in promoting and defending human rights. See C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007).
26 Butleritchie (n 22 above); see also W Osiatynnski 'Constitutionalism, democracy, constitutional culture' in W Wyrzykowski (ed) Constitutional cultures (2000) 151-158 and R Henwood 'Constitutional culture in Africa' in W Wyrzykowski (ed) Constitutional cultures (2000) 107-122.
27 AM Mapunda 'Conditions for the functioning of a democratic constitution' Conference on Constitutionalism and the legal system in a democracy East and Central Africa Chief Justice Colloquium (1995) 35.
28 JO Ihonvbere Towards a new constitutionalism in Africa (2000) 13; see also F Kanyongolo 'The constitution and the democratic process in Malawi' in O Sichone (ed) The state and constitutionalism (1998) 2.
29 L Henri 'Elements of constitutionalism' (1998) 60 The Review 12.
30 As to whether or not the new Swaziland Constitution achieves this, a comprehensive discussion is made by Fombad (n 11 above).
31 S v Acheson 1991 2 SA 805 813 (Nm High Court) per Mahomed AJ (as he then was), cited with approval by Masuku J in Rex v Mandla Ablon Dlamini Criminal Case 7/2002 (HC) (unreported) 7.
32 AE Bradley et al (eds) Constitutional and administrative law (1995) 5.
33 H Belz 'Written constitutionalism as the American project' http://www.constitution.org/cmt/belz/lcfl_i.htm (accessed 3 August 2005).
34 Oloka-Onyango & Mugaju (n 4 above)
35 Decree 2(e) of the King's Proclamation (my emphasis).
36 A Heywood Politics (2007) 69.
37 As above.
38 Heywood (n 36 above) 106.
39 Art 19 of the African Charter prohibits the domination of a people by another and reads: 'All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.'
40 This part of the discussion is developed by the reference to the decisions of the courts mentioned below (nn 62 & 63). See also SH Zwane 'Constitutional discontinuity and legitimacy: a comparative study with special reference to the 1973 constitutional crisis in Swaziland' unpublished LLM dissertation, University of Edinburgh, 1998 36.
41 Swaziland Independence Constitution Act 50 of 1968.
42 NA Hlatswayo 'The ideology of traditionalism and its implications for principles of constitutionalism: The case of Swaziland', unpublished LLM dissertation, Faculty of Graduate Studies, 1992 130.
43 Ch V 1968 Constitution.
44 Ch VII 1968 Constitution.
45 Ch IX 1968 Constitution.
46 Matsebula (n 2 above) 243.
47 Matsebula (n 2 above) 257, Zwane (n 40 above) 26 as well as Khumalo contend that the different sources were that the independence Constitution attempted to separate the elements of the traditional political system from the modern constitution system within one system, 96.
48 Hlatshwayo (n 42 above).
49 B Khumalo 'Legal pluralism and constitutional tensions: the evolution of the constitutional system in Swaziland since 1968' unpublished LLM dissertation, Faculty of Graduate Studies, York University, Ontario, 1993 96.
50 Khumalo (n 49 above) 99.
51 Bhekindlela Thomas Ngwenya v The Deputy Prime Minister 1970-76 SLR (HC) 88.
52 n 51 above, 102.
53 Purportedly issued in terms of sec 9(1)(g) of the Immigration Act 32 of 1964, published under Government Gazette 65 of 1972.
54 Immigration (Amendment) Act 22 of 1972.
55 Khumalo (n 49 above) 105.
56 RS Mthembu 'Human rights and parliamentary elections in Swaziland' in Okapaluba (n 15 above) 124.
57 Bhekindlela Thomas Ngwenya v The Deputy Prime Minister and the Chief Immigration Officer 1970-76 SLR (HC) 119.
58 Khumalo writes that in the intervening period between the first application and this one, Chief Justice Sir Phillip Pike had vacated his office. He does not tell us the reasons (107).
59 Bhekindlela Thomas Ngwenya v The Deputy Prime Minister and the Chief Immigration Officer 1970-76 SLR (CA) 123.
60 Mthembu, Hlatshwayo and Khumalo all agree that the government was not pleased with the decision and this led to the ruling party manoeuvring the Constitution and its electoral process.
61 Matsebula (n 2 above) 258.
62 Hlatswayo (n 42 above) 145.
63 As above.
64 Lucky Nhlanhla Bhembe v The King Criminal Case 75/2002 (HC) per Masuku J; Nhlanhla Lucky Bhembe & Ray Gwebu & Another Criminal Case 75 & 11 of 2002 per Sapire CJ (unreported).
65 Gwebu & Another v Rex (2002) AHRLR 229 (SwCA 2002).
66 n 64 above, 3.
67 n 65 above.
68 (1968) 3 All ER 561 (PC).
69 1 99 4 3 SA 850 (BGD).
70 (1987) LRC (Const) 127.
71 n 65 above, 238 para 36.
72 NJ Udombana 'Interpreting rights globally: Courts and constitutional rights in emerging democracies' (2005) 5 African Human Rights Law Journal 67.
73 Eg Decrees 11, 12 and 13 of the Proclamation expressly prohibited any form of political activity. Decree 11 reads: 'All political parties and similar bodies that cultivate and bring about disturbances and ill feelings within the nations are hereby dissolved and prohibited.' Decree 12 reads: 'No meetings of a political nature and no processions shall be held or take place in any public place unless with the prior consent of the Commissioner of Police, and consent shall not be given if the Commissioner of Police has reason to believe that such meeting, procession or demonstration is directly or indirectly related to political movements or other riotous assemblies which may disturb the peace or otherwise disturb the maintenance of law and order.' Decree 13 reads: 'Any person who forms or attempts or conspires to form a political party or who organises or participates in any meeting, procession or demonstration in contravention of this decree shall be guilty of an offence and liable on conviction to imprisonment not exceeding six months.'
74 Registered Trustees of the Constitutional Rights Project (CRP) v The President of the Federal Republic of Nigeria & Others (unreported) Suit M/102/93, High Court of Lagos State per the Honourable Justice Onalaja O found that the fact that Nigeria had ratified and incorporated the Charter means that municipal law cannot prevail over international law. The judge continued to hold that, even if the Charter had not been incorporated, the position would have remained the same; discussed by PB Ngabirano 'Case comment - Does municipal law prevail over international human rights law in Africa? Registered Trustees of the Constitutional Rights Project (CRP) v The President of the Federal Republic of Nigeria & Others' (1995) 2 East African Journal of Peace and Human Rights 102.
75 Matsebula (n 2 above) 265.
76 Organisations such as the Swaziland Federation of Trade Unions (SFTU), the banned Peoples' United Democratic Movement (PUDEMO) and the Swaziland Youth Congress (SWAYOCO), Swaziland National Association of Teachers (SNAT), and later the Swaziland Federation of Labour (SFL) and the revived Ngwane National Liberatory Congress (NNLC) and others demanded genuine democratic changes.
77 Baloro (n 15 above) 51.
78 Established by Decree 1 of 1992.
79 Sec 3(d) Decree 1 of 1992.
80 Sec 4 Decree 1 of 1992.
81 Sec 5 Decree 1 of 1992.
82 Sec 9 Decree 1 of 1992.
83 One of the members, Mandla Hlatshwako, refused to participate in the Commission and his organisation, PUDEMO, refused that he be part of it because they had not mandated him. See JB Mzizi 'Leadership, civil society and democratisation in Swaziland' in A Bujra et al (eds) Leadership, civil society and democratisation in Africa: Case studies from Southern Africa (2002) 165; see also R Russon 'Social movements and democratisation in Swaziland' in L Sachikonye (ed) Democracy, civil society and the state: Social movements in Southern Africa (1995) 66.
84 TRC Report 30 June 1992.
85 n 84 above, 44.
86 n 84 above, 49.
87 n 84 above, 88.
88 The country was experiencing an unprecedented wave of labour and political demonstration predominantly led by the labour unions, particularly the SFTU under the leadership of the charismatic Secretary-General Jan Sithole, which was joined by the SNAT and later the SFL. The protests continue to date.
89 Established by Decree 2 of 1996.
90 Swaziland Constitutional Review (Amendment) Decree 1 of 2000.
91 CRC Final Report on the submissions and progress report on the project for the recording and codification of Swazi law and custom (undated).
92 CRC Report (n 91 above) 21.
93 The meaning of this section was a subject of debate in the challenge of the constitutional validity of the Constitution discussed below (n 145).
94 CRC Report (n 91 above) 27.
95 CRC Report (n 91 above) 21. The reference to Swazi law and custom is as provided for under Amendment Decree 1 of 1982 and the Kings' Proclamation as it makes the King an absolute monarch by vesting all powers in him.
96 As above.
97 CRC Report (n 91 above) 80-81.
98 CRC Report (n 91 above) 83.
99 CRC Report (n 91 above) 95.
100 CRC Report (n 91 above) 82.
101 C Okpaluba 'Constitutionalism and constitution making' paper delivered at the workshop on 21-23 June 2002 of the Council of Swaziland Churches in conjunction with the Southern African Conflict Prevention Network (SACPN) Bridging the divide 35.
102 Decree 1 of 2002.
103 Sec 3 Decree 1 of 2002.
104 Sec 9 Decree 1 of 2002.
105 There was a demand that the October 2003 national elections be postponed pending the finalisation of the Constitution, in terms of which elections would be conducted even if they would establish an interim government.
106 CommonwealthSecretariat'SwazilandNationalElections 18October2003:Reportofthe Commonwealth Expert Team' http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B9C9C4FF0-8E15-40E4-98B1-138FE7A81FF9%7D_SwazilandNationalElections_report.pdf (accessed 5 November 2003) 18.
107 In his written presentation, the Chairperson informed the King and the world that they as the Committee had thought long and hard about the system that Swaziland should follow, and concluded that the country should remain a no-party state. From this it is clear that it is not the people who do not want democracy but those who were tasked to write the Constitution for and on behalf of the people.
108 These calls were being made by many groups, including Lawyers for Human Rights, the newly formed Swaziland Coalition of Concerned Civic Organisation (SCCCO), later joined by the National Constitutional Assembly (NCA) formed on 27 September 2003 with a view to concentrate on influencing the direction of the process and, if need be, produce an alternative working constitution from the point of view of civil society. It was composed of various civil society groupings, including the banned political parties.
109 A Kalu 'Language and politics: Towards a new lexicon of African constitutionalism' in J Oloka-Onyango (ed) Constitutionalism in Africa: Creating opportunities, facing challenges (2001) 37-51 39. The writer argues that, because African constitutions are written in foreign languages, they tend to convey values that are not upheld.
110 International Bar Association 'Striving for democratic governance: An analysis of the draft Swaziland Constitution August 2003' http://www.ibanet.org/images/downloads/HRISwazilandAnalysis.pdf (accessed 5 August 2005).
111 Amnesty International 'Memorandum to the Constitution Drafting Committee on the Draft Constitution for Swaziland October 2003' http://www.amnesty.org.ru/library/Index/ENGAFR550042004?open&of=ENG-SWZ(accessed 6 August 2005).
112 Such organisations included Lawyers for Human Rights; Women and Law Southern Africa Research Trust (Swaziland Chapter); the Co-ordinating Assembly of Non-governmental Organisations (CANGO); and SCCCO, not to mention political parties.
113 Gwebu (n 65 above) and Commissioner of Police & Two Others v Madeli Fakudze Civil Appeal Case 38/2002 (unreported).
114 Press Statement 22/02 His Excellency the Right Honourable Prime Minister Dr BSS Dlamini 28 November 2002.
115 They only resumed work around June 2005 after a protracted process of negotiations with the government, after the Minister for Justice and Constitutional Affairs, who also was Chairperson of the Constitution Drafting Committee, filed an affidavit undertaking that all judgments of the court will be complied with. All along the country operated without a Court of Appeal.
116 The Attorney-General v Ray Gwebu & Lucky Nhlanhla Bhembe Case 3699/2002 (HC) (unreported).
117 Civil Case 3091/2002 (HC) (unreported).
118 A letter dated 1 November 2002 in court file confirmed this.
119 Statement read in open court by Chief Justice Sapire, court file.
120 Industrial Court Case 20/2002 (unreported).
121 Statement of the Coalition published in The Times of Swaziland 24 August 2005 http://www.times.co.sz/058.html#article9 (accessed 24 August 2005).
122 Amnesty International 'Swaziland human rights at risk in a climate of political and legal uncertainty' 20 July 2004 http://www.amnesty.org/en/library/info/AFR55/004/2004/en (accessed 8 September 2005).
123 International Commission of Jurists 'Report of the Centre for the Independence of the Judges and Lawyers - Fact-Finding Mission to the Kingdom of Swaziland, June 2003' http://www.icjcanada.org/en/documents/2003-06_Swaziland.pdf (accessed 5 August 2005).
124 nn 110 & 123 above respectively.
125 Amnesty International Report on Swaziland http://web.amnesty.org/web/ar2001.nsf/webafrcountries/SWAZILAND?OpenDocument (accessed 8 September 2005); 'Swaziland: Fears of safety/ill treatment : Musa Dlamini, Mario Masuku, Jan Sithole and other trade union officials and political activities' http://www.amnesty.org/en/library/info/AFR55/001/2000/en (accessed 5 August 2005).
126 Rex v Mario Masuku Criminal Case 84/2001 (HC) (unreported). See also Amnesty International Report on Swaziland 'Swaziland: Acquittal of Mario Masuku is an opportunity to end persecution of the opposition' http://www.amnesty.org/en/library/info/AFR55/002/2002/en (accessed 8 September 2005).
127 Sec 4(1)(b) of the Seditious and Subversive Activities Act 46 of 1938, as amended.
128 Rex v Mario Masuku (n 126 above).
129 Civil Case 1671/2004 (HC) (unreported). This is supposedly a national meeting at the Royal residence where the people are summoned to attend a meeting at the King's cattle byre. They sit on the ground and presumably issues of national significance are discussed. This forum has been questioned as inappropriate for an effective way of addressing issues of governance. It is basically informed and influenced by Swazi law and custom and things are to be done in a particular customary way. Although it is supposed to be a traditional democratic way of getting the government's view of the people, it fails to live up to genuine democratic aspirations. Eg, views which are deemed to be unpopular to those of the ruling regime are not tolerated. It is therefore not at all an effective way of constitutional governance.
130 Letter presented to the Chairperson of the meeting, Prince David, in September 2004. The cattle byre is supposedly a national assembly where the King addresses the nation; see Matsebula (n 2 above) 240.
131 Swaziland Federation of Trade Unions, Peoples United Democratic Movement, Swaziland Federation of Labour, Ngwane National Liberatory Congress v Chairman of the Constitutional Review Commission & Five Others Civil Case 1671/2004.
132 Swaziland Federation of Trade Unions, Peoples United Democratic Movement, Swaziland Federation of Labour, Ngwane National Liberation Congress v Chairman: Constitutional Review Commission & Seven Others Civil Case 3367/2004.
133 Annandale ACJ, Matsebula J, Maphalala J, Nkambule AJ & Shabangu AJ. It is important to mention that the appointment of Annandale ACJ as Acting Chief Justice, and the appointments of Nkambule J and Shabangu J were at the time being challenged by the Law Society of Swaziland in the matter filed as Law Society of Swaziland v Swaziland Government & Five Others Case 743/2003, in which the Society called upon the government to show cause why the appointment of Justices Nkambule and Shabangu as judges of the High Court and the appointment of Judge Annandale as the Acting Chief Justice could not be declared a nullity. Their very independence was therefore questionable. The applications were never finalised because there were no judges to determine them, government having frustrated the appointment of an outside judge or judges to adjudicate on it.
134 The Attorney-General argued that the applicants had failed to establish urgency, that the court had no jurisdiction to entertain the matter since it was a matter affecting the principle of separation of powers, that the applicants had no locus standi and that the applicants had failed to set out grounds for an interdict, among others.
135 L Tibatemwa-Ekirikubinza 'The judiciary and enforcement of human rights: Between judicial activism and judicial restraint' (2002) 8 East African Journal of Peace and Human Rights 145-173. See also Udombana (n 72 above).
136 While parliament was in session debating the Bill, the Prime Minister rushed to parliament with a special message from the throne, the instruction which was to effect certain changes in the Bill as the King pleased.
137 The Uganda Constitution of 1966 was famously referred to as the Pigeon Hole Constitution because President Amin advised members of his parliament that they would get their copies in their pigeon holes in parliament. See SWW Wambuzi (Chief Justice) (as he then was) 'Constitutionalism and the legal system in a democracy' Conference on constitutionalism and the legal system in a democracy East and Central Africa Chief Justice Colloquium, 28, 29 & 30 March 1995 6. Because of the adoption of the Swaziland Constitution inside the cattle-byre, it befits that we refer to it as the 'cattle-byre Constitution'.
138 Adopted as the Constitution of the Kingdom of Swaziland Act 1 of 2005. The Times of Swaziland 27 July 2005 carried as a headline on the front page 'Historic!'; on the same note, The Swazi Observer 27 July 2005 proclaimed 'A new identity for Swaziland'.
139 nn 149 & 154 below.
140 The Times of Swaziland 27 July 2005; The Swazi Observer 27 July 2005.
141 Statement of the SCCCO published on 24 August 2005, the NCA statement of July 2005. People's United Democratic Movement (PUDEMO) said in 2004, and their position has not changed: 'We will only be interested in a constitution that would be inclusive of the entire people of Swaziland, not just a few. So we reject this draft constitution with contempt.' 'Swaziland Opposition demand legalisation of Parties http://www.irinnews.org/report.aspx?reportid=45051 (accessed 29 August 2005). Commenting during the visit by Njongonkulu Ndungane, the Bishop of the Anglican Church of Southern Africa, Swaziland's Anglican Bishop Meshack Mabuza, said on his country's controversial palace-driven constitutional reform process: 'It is not the content of the Constitution that bothers us, it is the process of the Constitution - it will only be legitimate if the people have a hand in the process.' 'Bishops wrap up Swaziland mission' http://www.mg.co.za/article/2004-07-13-bishops-wrap-up-swaziland-mission (accessed 29 August 2005).
142 L Sisay, United Nations Development Deputy Representative Resident to Swaziland, was quoted, saying: 'This is a very great day for Swaziland. I think Swazi's have witnessed the dawn of a new era' The Swazi Observer 27 July 2005.
143 http://www.thecommonwealth.org/Templates/System/LatestNews.asp?NodeID=144636 (accessed 1 September 2005).
144 Adopted by the Heads of Government Meeting of the Commonwealth on 20 October 1991, Harare, Zimbabwe. See C Heyns Human rights law in Africa Vol 1 (2004) 741.
145 Lawyers for Human Rights v Swaziland (2005) AHRLR 66 (ACHPR 2005).
146 The letter was dated 2007, and is on file with the author and was hand-delivered at the office of the Minister for Justice and Constitutional Affairs as line minister responsible for the Constitution.
147 An address by the Prime Minister at the official opening of the session.
148 Formal statement made in the NGO Forum in its capacity as an organisation with observer status with the Commission.
149 Jan Sithole NO (in his capacity as the Trustee of the NCA) & Others v The Prime Minister of Swaziland & Others Case 2792 of 2006 (as yet unreported).
150 n 5 above.
151 It reads: 'Repeal and savings. 80(2) Save in so far as is hereby expressly repealed or amended the King's Proclamation of the 12th April 1973 shall continue to be of full force and effect: Provided that the King may by decree published in the Gazette amend or repeal the said Proclamation after a new Constitution for the Kingdom of Swaziland has been accepted by the King and the people and brought into force and effect.'
152 Sec 4: 'Representation. 4 Any member of the general public who desires to make a submission to the Commission may do so in person or in writing and may not represent any one or be represented in any capacity whilst making such submission to the Commission.'
153 In a unanimous judgment delivered by Banda CJ in which Mamba J and Maphalala J concurred.
154 Civil Appeal 35 of 2008, judgment delivered by Tebutt JA in which Zietsman JA, Ramodibedi JA, Foxcroft JA and Ebrahim JA concurred (as yet unreported).
155 In an earlier judgment, MPD Supplies (Pty) Ltd & Another v The Prime Minister & Others Civil Appeal 8 of 2007 (as yet unreported) ) 31, the Supreme Court had said: 'Nevertheless, this Court is mindful that the Constitution is not just another law. It is the product of negotiation. Compromises and accommodations have inevitably been made. Therefore it constitutes a sacred covenant.'
156 Fombad (n 11 above)
157 n 103 above, 'Swaziland constitutional framework' 15 (my emphasis).
158 Hatchard et al (n 7 above) 324.
159 I Currie et al (eds) The Bill of Rights handbook (2005) 13.

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