- A pro-democracy movement is challenging the assertion in Swaziland's new constitution that the people want to be governed by an executive monarch in a court action demanding that the government back its claim by publishing the evidence.
The government is refusing to bow to a demand by the National Constituency Assembly (NCA), an umbrella organisation of pro-democracy advocates, that it release submissions made between 1996 and 2001 as part of the Constitutional Review Commission (CRC) process.
King Mswati III established the commission and instructed his brother, Prince Mangaliso Dlamini, to collect the views of Swaziland's roughly one million people on the style of governance they preferred.
Swaziland had a brief flirtation with a Westminster-style parliamentary democracy, in which political parties contended for power, for five years after it was granted independence from Britain in 1968.
In 1973 the reigning monarch, King Sobhuza II, overturned the constitution agreed with the former colonial power, instituted a state of emergency, which is still in force, banned opposition political parties and political meetings, and assumed ultimate executive, judicial and legislative authority for the monarchy.
The royal family has been coming under increasing pressure since neighbouring states, such as South Africa and Mozambique, embraced multiparty democracy and moved away from previous systems of authoritarian rule.
The CRC's 1998 deadline for finalising a new constitution was missed, but Prince Mangaliso reported to Mswati in July 2001 that his subjects disliked political parties, and "an overwhelming majority of Swazis" preferred an executive monarch to multiparty democracy. The prince offered no supporting evidence and the submissions were sealed.
Mswati accepted the findings and appointed another brother, Prince David Dlamini, the current justice and constitutional affairs minister, to head a Constitution Drafting Committee. At the signing of the constitution last year, the king declared, "The Swazi people have spoken."
The NCA wants access to the submissions in order to establish that the constitution does indeed reflect the will of the people.
Critics of the costly decade-long constitutional exercise said the result of the process was merely to enshrine the political status quo of an absolute monarchy.
NCA member Musa Hlope, former head of the Swaziland Chamber of Commerce and Federation of Swaziland Employers, wrote in a Times of Swaziland newspaper column recently that only 1,000 to 3,000 Swazis actually made submissions to the constitutional commission during the five-year process.
In its court action the NCA said the constitution-making process was flawed and undemocratic, and its outcome illegitimate.
"We have not only a moral obligation but also a duty to strive for a constitution that will ensure equitable sharing of resources, equal treatment of all people before the law, as well as the creation of independent structures that will guarantee the growth and development of constitutionalism," said Kilson Shongwe, an NCA member and secretary-general of the banned political party, People's United Democratic Movement (PUDEMO).
In response to the NCA's high court application, the government said the court had no jurisdiction to review the constitution process.
"Constitution making is inherently political. It is not an administrative act and, hence, it is not susceptible to review," said the government's opposing affidavit. It went on to say that the process was by royal decree, which mandated that all records remain sealed and therefore unavailable to the public.
The government said none of the respondents named in the NCA application, including the prime minister, justice minister, attorney-general, House of Assembly speaker, president of the senate and chairmen of the now defunct constitution committees, were in possession of the records.
If the NCA wins the case it hopes to begin the process of establishing a new national constitution, written by an elected national constitutional assembly.
Political observers doubt the likelihood of this, as the prospect of the government acquiescing to a high court ruling is seen as remote.
According to an attorney who represents political dissidents, "If political change comes to Swaziland it will be incrementally, with royalty not forced into it by the court but as a willing participant, though perhaps yielding to some external pressure."
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