Context and background
The Kingdom of Eswatini is the only absolute monarchy left in Africa and over the past few has had its people challenging this governance regime. For instance, the Swaziland Positive Living (SWAPOL) made up of the Swaziland Young Women’s Network (SYMN), Women and law in Southern Africa (WLSA) and the Foundation for Socio-Economic Justice have made submissions on the violation of women’s rights to the Joint Universal Periodic Review. Other organisations have expressed concern with the enforcement of the Constitution and other human rights instruments.
The Constitution of Eswatini provides in the preamble that ‘We the People of the Kingdom of Swaziland do hereby undertake in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation;’ and that ‘various vusela consultations, economic and constitutional commissions, political experiments and Sibaya meetings have been established and undertaken in the last thirty years in search of a sustainable home-grown political order’. Section 1(1) of the Constitution of Eswatini provides that ‘Swaziland is a unitary, sovereign, democratic Kingdom’.
On or about 20 June 2021, civil unrest broke out in the Kingdom of Eswatini. Protesters demanded the right to elect political leaders and reform of the system of absolute monarchy. The citizens of Eswatini were wanting a democratic system. One of the organisations associated with the protest was the Swaziland Youth Congress (Swayoco), and their demands or calls for a democratic government were met with resistance.[1]The civil unrest and protest related to the disapproval of the appointment of the Prime Minister. The protesters were of the view that it was not democratic.The then prime Minister Themba Masuku (who was replaced by Cleopas Dlamini on 16 July 2021, when King Mswati III made the appointment) issued a decree banning delivery or handover of petitions to government officials and MPs.
This decree affected the political right to petition to government and the civil right to freedom of expression on political issues. The public did not receive it well and it sparked unrest that led to the burning of several government buildings. The country has currently stabilised under the lockdown state of emergency and has opened room for investigation.
Asserting the right to self-determination[2]
The Kingdom of Eswatini is a member state to the African Union (AU), the International Covenant on Civil and Political Rights (ICCPR) Article 1(1) of the ICCPR states that ‘everyone has right to self-determination. By virtue of that right to freely determine their political status and freely pursue their economic, social and cultural development.’ The same right is reflected in article 20(1) of the African Charter on Humans and People’s Rights where it states that ‘all people…shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’
Section 67 (1) of the Constitution provides that “The King shall appoint the Prime Minister from among members of the House acting on recommendation of the King’s Advisory Council.” The protesters took issue with this appointment and sought to hand over a petition to the tinkhundla [local authorities] in expression of this discontent.Whereas section 58 (1) of the Constitution states that ‘Swaziland shall be a democratic country dedicated to principles which empower and encourage the active participation of all citizens at all levels in their own governance’.
Section 78 of the Constitution provides for a system of government made up of tinkhundla.[3]Section 85 provides for a right to vote, every Swazi or person ordinarily resident in Swaziland has a right to vote at any election of members of the House or members of the Bucopho. Section 81 (1) of the Constitution provides that “an inkhundla, as a local authority area, is under the general administration of an executive committee called Bucopho.” The furthest extent to which the people of Eswatini have a right to vote for their representation is at the committee of Bucopho and that right does not extend to the right to vote for the appointment of the Prime Minister. The people then expressed discontent with this appointment and were met with decree that banned the delivery of petitions.
Excessive Use of force
On or about 30 June 2021, the police force responded with excessive use of force against the protesters that allegedly led to the killing of at least 21 protesters by 30 June. Video clips surfaced on social media of police officers physically assaulting protesters and using live ammunition at the violent protests.[4] The UN Human Rights Committee on the International Covenant on Civil and Political Rights (ICCPR) had previously noted its concerns over the use of force by the government of Eswatini.[5] In particular, it raised concerns regarding the permissive conditions in Article 41 of the Criminal Procedure and Evidence Act and provisions of the Public Order Act which leaves it to the discretion of individual police officers to decide whether it is expedient to use force. In essence, the police force have violated the right to security of the person using this legal provision.
Internet shutdown and freedom of expression
Around the 30 June 2021, the government ordered an internet shutdown to make it difficult for the people of Eswatini to communicate within its borders and with the outside world. For instance, MTN admitted to shutting down the internet following a directive from the Eswatini Communications Committee.[6] This led to an urgent application in the High Court of Eswatini by the Southern Africa Litigation Centre (SALC).[7] The application advanced the view that the said internet shutdown led to violation of freedom of expressions, information and association.[8] The matter is due to be heard soon.
The response of the Southern African Development Community (SADC)
On 2 July 2021, The SADC chairperson commenced a fact-finding mission through the SADC Organ Troika on Politics, Defence and Security, by stating that the organ will ‘urgently dispatch a team of Ministers to Eswatini with a view to further encourage the kingdom to find a lasting solution’.[9] SADC has been met with criticism on its statement by the civil society organisations stating that it took a long time and it was out of touch.[10] The fact-finding mission continued until end of July 2021 and will have a report follow thereafter. It allowed multiple stakeholders to participate in the fact-finding mission.[11]
Constitution of Kingdom of Eswatini[12]
The Kingdom of Eswatini has ratified and acceded to the ICCPR, the African Charter on Humans and People’s Rights (ACHPR) and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.[13] But Eswatini has not yet fully domesticated these treaties or performed in terms of their international obligations. Nevertheless, there are indications of some domestication within the provisions of its Constitution. Certain provisions have been violated: section 15, which guarantees protection of the right to life; section 18 on protection from inhuman or degrading treatment and section 24, the protection of freedom of expression.
The substance of these rights and the extent to which they can be limited is perhaps still open for debate, and hopefully an open and democratic approach will clarify the positions. It would be in the interests of justice to consider an approach which would vindicate the will of the people. Surely silencing political views or denying access to social media platforms cannot be justified. In principle, the limitation of any right cannot operate to defeat the very purpose of that right.
It is strongly argued that the people of Eswatini have the right to self-determination which entails the ability to decide the form and substance of government to serve them. This means the best course of action would be to allow the people of Eswatini to decide which form of government they want and to provide justice for persons whose deaths have been caused by the unrest. This includes allowing an amendment of the Constitution in a manner that reflects the will of the majority (without unjustifiably infringing on the rights of the minority), including how, and by whom, the Prime Minister is appointed.
Conclusion
The government’s response to the political demands of the people for a reform of the current monarchy into a democratic government ought not to have been the use of force or limitation and infringement of freedom of expression, and sharing and attaining of information. This violated its domestic laws and international obligations. International obligations depend on the contractual principle of consent and that no state is bound by a treaty or any other international instrument they have not consented to. This principle protects the sovereignty of states from foreign state interference. A state can be held accountable only to a treaty it (a) ratifies and (b) accedes to and (c) domesticates. While the violation of the ICCPR is clear in principle, the difficulty is enforcement.
Mihloti Basil Sherinda
Legal Researcher
Mihloti@hsf.org.za
[1]These protests also triggered complaints of other issues within the country like unemployment, service delivery and poverty.
[2]Article 1(1) of the ICCPR states that ‘everyone has right to self-determination. By virtue of that right to freely determine their political status and freely pursue their economic, social and cultural development.’ The same right is reflected in article 20(1) of the African Charter on Humans and People’s Rights where it states that ‘all people…shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’
[3] Section 79 of the Constitution stipulates 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 and individual merit as a basis for election or appointment to public office.”
[4]https://www.aljazeera.com/news/2021/6/30/tensions-run-high-eswatini-pro-democracy-protests-continue
[6]https://www.news24.com/news24/southafrica/news/mtn-confirms-it-implemented-internet-blackout-in-eswatini-20210703
[7]https://allafrica.com/stories/202107050776.html and https://www.southernafricalitigationcentre.org/2021/07/07/letter-to-mtn-group-president-and-ceo-violation-of-freedom-of-expression-in-eswatini/
[8]https://www.southernafricalitigationcentre.org/2021/07/05/statement-internet-shutdown-in-eswatini-challenged-in-the-high-court/
[9] https://www.sadc.int/news-events/news/statement-chairperson-sadc-organ-politics-defence-and-security-his-excellency-dr-mokgweetsi-eric-keabetswe-masisi-president-repu/
[10]https://www.iol.co.za/news/africa/sadc-out-of-touch-with-the-situation-in-eswatini-says-swaziland-solidarity-network-eab69d74-86e4-5ee8-bee3-620fd8181c2e
[11]https://www.news24.com/news24/africa/news/sadc-team-returns-to-eswatini-for-7-day-fact-finding-mission-20210715
[13]Although The Kingdom of Eswatini has ratified more treaties and conventions and have been involved in more discussions, it has only acceded to these. The law on accession states that member states are bound to the treaties for any violation that occurs within their sovereignty thereby granting any violated person/s locus standi in international courts, whereas domestication grants the violated person/s locus standi in domestic courts.
