New+Constitution+-+sicholo+with+head+lice,+PUDEMO

People’s United Democratic Movement
=PUDEMO=

August 1, 2005

 * “New Constitution” of Swaziland: sicholo (bee-hive hair-style) infested with head lice.**

On July 26, 2005, King Mwaswati III of Swaziland signed into law the highly controversial constitution. PUDEMO reiterates its long-standing position and categorically rejects the constitution. The signing of the constitution into law will go down in history as a shameful event which undermined the aspirations and voices of the people Swaziland. It completes the royal family's project, aided by the Commonwealth Secretariat and the United Nations Development Programme, to obtain political legitimacy by fraudulent means. The "new constitution" is a scam. It is a steamroller driven by drunks with one purpose, to kill the hopes of our people for socio-political progress.

The Commonwealth Secretariat and the United Nation Development Programme should be ashamed to be associated with a constitution which outlaws multi-party parliamentary democracy, retains the status of King as an absolute ruler, enshrines a deceitful and meaningless bill of "rights", allows capital punishment and gives the security forces the power to kill Swazi citizens with impunity. The involvement of these bodies in the constitution making exercise is extremely disturbing given their international standing as advocates, promoters and protectors of democratic and human rights principles. Both the Commonwealth Secretariat and the United Nations Development Programme have welcomed the signing of the new constitution into law as significant political progress.

Paradoxically, the Commonwealth Secretary-General, Don McKinnon, used the Port of Spain/ Trinidad/Tobago forum promoting the growth of multi-party parliamentary democracy to congratulate King Mswati III on signing a constitution that outlaws party participation in national politics. McKinnon refers to the signing ceremony as "…a historic moment for the people of Swaziland and for the growth of democracy in Southern Africa." According to McKinnon, "the Commonwealth has been pleased to provide practical support to the constitution drafting process in Swaziland. I warmly commend His Majesty, King Mswati III, in taking this final step to bring the Constitution into effect" (Commonwealth Secretariat Press Release, July 26, 2005).

Contrary to this rhetoric, the signing of the constitution is in effect a step backwards in the growth of democracy in Southern Africa. Swaziland is one of the last bastions of post-colonial political developments in Africa, which were characterised by the growth of the one-party state and non-party state tyranny. On July 14, 2005, the International Crisis Group published a report on Swaziland in which it observes that:

The revised constitution effectively enshrines the 1973 state of emergency decreed by the late King Sobhuza II, which abolished the democratic system and vested ultimate judicial, executive, and legislative power in the monarch. Until that state of affairs is reversed, Swaziland's long, steady implosion is likely only to accelerate.

The Commonwealth position on the new constitution is inconsistent with its declared principles on democracy. Recently, the Commonwealth Parliamentary Association told the Port of Spain/ Trinidad/Tobago forum on Government and Opposition - Roles, Rights and Responsibilities (July 25-27, 2005) that:

The reality is that the interplay between governing and opposition parties is an essential part of politics - parliamentary opposition is crucial to a healthy democracy… Democracies are better than authoritarian regimes at managing conflicts because the political space and the institutions that provides for open contests give opponents hope that change is possible without destroying the system.

Speaking at the Commonwealth Parliamentary Association in Windhoek, Namibia on September 9, 2002, McKinnon was emphatic about the significance of a multi-party system of governance in "deepening democracy". He argued that "we need" this system because:

Political parties are the cornerstone of representative democracy. So my plea today is for us all to commit ourselves to their reform and renewal… Our political parties can and should promote responsible and reasoned debate, thereby enrich the 'national conversation' and generally help to take democratic discussion forward to greater maturity.

Curiously, whilst the Secretary-General expresses an interest in the development of an active multi-party political culture within the Commonwealth, he supports efforts to prevent this very development from occurring in Swaziland. Hence his "warm" commendation of King Mswati III and his government for quashing the growth of democracy. We found no public record of Commonwealth statements encouraging multi-party parliamentary democracy in Swaziland. This is hypocrisy. On numerous occasions, PUDEMO expressed concerns about the role of the Commonwealth in undermining local Swazi campaigns for a genuine transformation of the political system from monarch absolutism to democratic governance.

We have been extremely disappointed by the lack of interest in engaging pro-democracy organisations in mutual conversations about the best possible way of resolving the political crisis in Swaziland. To our dismay, the Commonwealth discourse reverted to intimidation, dismissive and self-fulling prophecy. Commonwealth officials tell us that King Mswati III enjoys bigger political support than pro-democracy movements, that the Commonwealth would not censure the monarch government for persistent violation of the 1991 Commonwealth Harare Declaration because Swaziland was admitted to the organisation with its existing monarchical system of government. The Commonwealth also claims that unlike Zimbabwe, these violations in Swaziland are not documented.

This is argument is nonsensical. Firstly, the Commonwealth has no evidence to back up the claim that the monarch has bigger political support because this has never been tested by a democratic process. Secondly, Swaziland was not admitted to the Commonwealth with its existing monarchical system of governance. Commonwealth records show that Swaziland was admitted in 1968 under the Independence Constitution of 1968 with a Westminster system of governance. When Swaziland became a member of the Commonwealth, it had a formal opposition party, the Ngwane National Liberation Congress (NNLC). Thirdly, the persistent violations of the Harare Declaration of 1991 in Swaziland are well documented in various reports published by local and international organisations. For example, Amnesty International, Human Rights Watch and the US Department of State have published volumes of reports about human rights violation in Swaziland. Most obviously, these violations are documented in the King's Proclamation of 1973 and in the new constitution banning political party participation in national politics. Recently, the Commonwealth Expert Team, which observed the October 2003 national elections in Swaziland, documented the continued violation of the Harare principles on representative democracy. It observed that the current situation is a "long-running political rights crisis" and that "the ban on political parties has damaged Swaziland. It denies the right to freedom of association…" The Team recommended urgent changes in the Draft Constitution "…to provide for:

· a transfer of power from the king to the Parliament and Government, and · freedom of association."

Report of the Commonwealth Expert Team, October, 2003).

The Commonwealth Secretariat and the monarch regime ignored these recommendations. Thus it is evident that the constitution making process did not lend credence to views advancing the course of democracy.

It is against this background that PUDEMO categorically rejected the process when it was first announced in the early 1990s as a political scam designed to deceive our people and the international community that the monarch was now taking a step towards political change. It is important to understand the context in which the announcement was made. During this period, PUDEMO stepped up its direct challenge to the absolute monarch system and expressed serious concerns about the governance of the country by royal decrees. We called for a national debate on developing a constitution for Swaziland. It was our strong belief that this could not occur under the King’s Proclamation of 1973 which prohibited freedom of expression, assembly and association. PUDEMO then demanded the removal of this Proclamation as a matter of urgency and its replacement by the Independence Constitution of 1968 as a temporary measure until a new constitution was adopted. This is a fundamental requirement to begin creating the necessary conditions for free, fearless and well-informed Swazi citizens to actively engage with a constitution-making process. In 1992, PUDEMO published a blueprint for an all-inclusive constitution-making process, Towards a Constituent Assembly Through a Negotiated Process (The People's way forward). The document proposed:

1. Preliminary negotiation We as a Movement are firmly convinced that a formal and properly constituted negotiation process can only be effected through a broad-based representative National Convention. However, we are conscious of the fact that certain pre-conditions have to be met to facilitate the laying down of the basis for a fundamental move towards the envisaged convention, and of creating a conducive climate for the negotiation process would be able to lay the foundation for a National Convention.2. Memorandum of intent.To ensure that the democratisation process is itself democratic at the initial stage, the preliminary negotiations must not only be confined to the progressive forces but also be inclusive of traditional institutions-infact it must be a microcosm of our society i.e. political parties, political organisations, labour organisations, the youth, women’s organisations, traditional institutions and other interest groups.The outcome of the preliminary negotiations will be commits himself and the Government to formal and properly constituted peaceful negotiations through a national convention. The Memorandum of Intent shall include inter alia the following: - a) The outlining of all terms of reference for the national convention; b) The meeting of pre-conditions to facilitate the creation of a conductive climate for negotiations which demands the political tolerance through the upliftment of the state of emergency and all other repressive laws. Hence, the four specific decrees hereinafter set forth must of necessity be repealed as they impede any genuine move towards a new political dispensation-.- decree no.2 which provides for the 60 day detention without trial;- decree no.11 which provides for the banning of political parties and other mass political organisations;- decrees no.12 and 13 which provides for the prohibition of meetings, processions/demonstrations, associations and forming of political parties etc;c) the abrogation of The King’s Proclamation of 1973;d) the abrogation of the Establishment of Parliament Order No. 23 of 1978;e) the reinstatement of the Bill of Rights;f) the unbanning of all political parties;g) the unconditional return and indemnification of all political exiles;h) the issolution and dismissing of all “shadowy” cabals that surround the King like the “Central Committee” so that we know exactly who we are dealing with; andi) such pre-conditions have to be declared in a formal legal instrument.NATIONAL CONVENTION.The Movement reaffirms its conviction that formal and properly constituted negotiations can only be done through a National Convention, with its immediate objective of creating an interim government and electing a Constituent Assembly. A national convention is a forum whereby all political parties, political organisations, labour organisations, the youth, women’s organisations, traditional institutions and other interest groups would come together to work out the details of the democratic process and to lay down acceptable parameters on the modalities leading to the Constituent Assembly. A constituent assembly must act as the place where a new constitution guaranteeing a truly democratic Swaziland must be drawn up, but the run-in period leading up to actual election of the constituent assembly and the overseeing of the elections to the constituent assembly requires some interim authority to manage the process.This same national convention will constitute an interim authority on a democratic basis to govern and oversee the whole democratic process. It is our considered view that a task of such fundamental importance can only be carried out by a properly constituted and impartial government. An interim government with clearly defined functions and limited powers formed by the national convention would ensure a fair democratic process without any biases in favour of one group. It should be dissolved after the outcome of the constituent assembly. We believe a minimum two year period would be sufficient. NATIONAL REFERENDUM.Subject to the outcome of the national convention, a national referendum if necessary, would have to be held to solicit views on a desirable constitutional dispensation- whether the independence constitution should be re-invoked and amended or a new one drafted.However, from our viewpoint the issue of a national referendum becomes redundant in view of the King’s (Sobhuza II) solemn commitment on a new constitution drafted by the people of Swaziland for themselves, and the fact that the tinkhundla was not envisaged to be a substitution for a constitution. CONSTITUENT ASSEMBLYA constituent assembly is a body elected by all the people and its main responsibility will be to draw up a constitution for the democratic Swaziland. It is our fervent belief that there can be no genuine political dispensation and constitutional dispensation founded in such a system (Tinkhundla). A new political and constitutional dispensation can only be arrived at, in a properly constituted constituent assembly, where there can be a genuine participation of the masses, ensuring that any future political dispensation will not be dominated by royalty or minority.The position of our Movement is that a new constitution for the country needs to be drawn up and adopted by the people through a properly constituted constituent assembly. The electoral process of the constituent assembly will be defined at the national convention. The reason why our Movement supports the idea of elected delegates to draw up a constitution is to ensure that the new constitution reflects the interests of the people, and that those responsible for drawing up the constitution must be elected by the people in free, and fair elections. Only such an elected constituent assembly can ensure that the process of drawing up a democratic constitution is itself democratic. OUTCOME OF THE CONSTITUENT ASSEMBLY.Once a new constitution for the Kingdom of Swaziland has been adopted by the people of Swaziland will result in the following-- Dissolution of the constituent assembly.- Elections to be held for the constitution of a popular elected government based on the will of the people.- Dissolution of the interim government.- Repeal of all laws inconsistent with the constitution.

The monarch government responded with deceit. Grappling under growing local and international pressure to introduce multi-party parliamentary democracy, the government set up dubious constitution review processes culminating to the launching of the so-called constitution making exercise in 1996. The people of Swaziland under the leadership of PUDEMO rejected these processes for various reasons:

The elitist and arbitrary approach. For example, the "constitution review" processes and the committees entrusted with these tasks were decided by King Mswati III and his royal family cohort. There was no input from members of the public including organised political and civic groups on how the process should unfold. Worse, the process was not debated in parliament and enacted as an Act of Parliament.

Ambiguous terms of reference. There were no attempts to communicate the intention of these processes to the public until the 1996 commission was widely criticised for lacking direction and purpose. Even then the purpose and activities of the 1996 Commission remain hazy.

Individualism and political discrimination against pro-democracy groups. Group participation in the "constitution-making" process was prohibited under the CRC's terms of reference. People were constantly reminded that they were speaking as individuals with no link to communities and organised groups. This prohibition was facilitated under the King’s Proclamation of 1973, which denies the people of Swaziland their rights to express opposing views, form and belong to political parties. Although group participation was prohibited, pro-monarch political organisations such as Sibahle Sinje were allowed to participate in the process through back-door arrangements.

The individualist approach was antithetical to constitution making which should be about the creation of a community of people living together under generally agreed sets of laws. Political parties and organised civic groups are a microcosm of this community of people and provide space for individuals to synthesis their ideas into national agendas. These ideas are developed at local levels through organised and thoughtful debates. We view this as an important element of civic education. Thus participation of these groups in national political projects such as constitution making, is a fundamental requirement. Organised groups provide checks and balance in any political process. They do this by developing mechanisms through which they can identify anomalies in the process, closely monitor progress and keep members of the public informed through public debates. This space was never made available to the people of Swaziland.

It is not clear how individual members of a fragmented public are able to hold the process accountable if they feel that the constitution does not reflect their aspirations. Parliament cannot provide this accountability because it has no power to make independent decisions and members of parliament are docile bodies in a supposedly political institution. Throughout the nine-year period of "constitution-making", they were barred from debating matters relating to the exercise and were therefore unable to engage their constituencies in comprehensive debates on this subject. Towards the end of the exercise, King Mswati III introduced the Constitution Bill to parliament and gave it few weeks to 'debate' the Bill. There was no debate. Instead members of parliament concentrated on changing clauses affecting their conditions. These changes committed the state to pay all benefits to parliamentarians in an event the King dissolves parliament before the end of their term. They also changed the clause on religion making Christianity an official religion. King Mswati was not pleased with these changes and refused to sign the Bill and returned it to parliament. The Bill was subsequently returned to the King almost in its original form. This shows that the people of Swaziland cannot rely on parliament to amend the "constitution" and hold the system accountable. The status quo is maintained in the new constitution in which legislative power rests in the hands of the King.

Hostile political climate. Throughout the so-called constitution-making process, commissioners intimidated participants and warned them against the consequences of criticising the King and the royal family. Opportunities to speak were granted to those expressing favourable views of the monarchy. The existence of the King’s Proclamation of 1973 and the conduct of the commissioners meant that the process was conducted in a climate of hostility.

Secrecy and lack of political accountability. The process proceeded under a veil of secrecy and the commissioners were not under any obligation to respond to public concerns. They were accountable only to the King. Consequently, there was very little information made available about the activities of the commissions beyond the public meetings they held throughout the country. For example, the methodology used to sift through mountains of anecdotal texts is not known to the public. That is, how was the information used to shape the constitution selected? Who actually wrote the constitution? No information was made available about the authors beyond the one-faced Constitution Drafting Commission led by King Mswati’s brother, Prince David. Even the participation of the so-called constitution expert from the Commonwealth Secretariat was highly secretive, e.g. who were these experts, what is their professional background and experience in dealing with situations such as this? The public needed to engage with these faceless people deciding the future of our lives and country.

No civic education. We hold the view that it is impossible for uninformed people to make informed contributions and decisions on matters relating to the "constitution-making" exercise. This was evident in almost all the public meetings held by the commissions. In 2004, the Sibaya forum descended into chaos because the people had not been educated on constitutional issues. Civic education, which the royal family government deliberately neglected, is a fundamental requirement for constitutional development. Thus any claim that the people own the constitution must be supported by unambiguous evidence of a comprehensive civic education programme on constitution matters facilitated through various media and civic structures. The royal family government and the Commonwealth have no such evidence to support their claim that the constitution is "Swazis owned".

Lack of political will to change. The way in which the "constitution-making" exercise was established and managed shows no semblance of political will to transform the existing political system. This is reflected in the new constitution which retains the status quo. The constitution does not create "a new identity for Swaziland" as reported in the royal family-owned print media, The Swazi Observer (July 27, 2005).

These reasons are enough to render the constitution invalid because it was not developed by a free and informed people but a faceless small cohort of hand-picked supporters of the system. This is a bad law which was achieved though bad methods. Bad laws harm nations and do not deserve a place in our society. All Swazis must reject the "new constitution" and actively engage in civil disobedience in protest against attempts by the monarch government, the Commonwealth Secretariat and the United Nations Development Programme to deny them their fundamental rights to influence political decision in the country.

CONCLUSIONS: 1) The Commonwealth's role - breach its duty of care to Swazis As noted above, the Commonwealth understands that democratic processes are crucial in providing "…hope that change is possible without destroying the system". Where there is no democracy in a country, the involvement of external institutions such as the Commonwealth and the UNDP encourage suppressed people to hope for democratic change, because these institutions purport to promote and uphold democratic values. Thus, the involvement of such institutions provides reassurance and encourages people to hope for democratic change. Understandably, people assume that if these organisations become involved, they will work towards the establishment of democracy and social justice. This hope and reassurance can assist a repressed population to be patient and endure violations against it for a longer period of time than might otherwise be the case. Without the hope and reassurance provided by external institutions, people are more likely to regard their situation as more desperate and to thus engage in more desperate actions to change their situation. In many countries, including Swaziland, people will put up with a dictatorship for a longer period if they feel that external institutions are working towards democratic change on their behalf.

In this way, there is a direct relationship of trust between the Swazi citizens and external institutions such as the UNDP and the Commonwealth. This relationship of trust is particularly powerful in a country such as Swaziland, where much of the population does not have Western academic or civic education. People tend to have little experience of other political systems or ideas and depend on external institutions to provide objective vision about what might be possible under democratic governance. Furthermore, their day to day experience is of their local community and the work associated with subsistence farming. If in this situation, external institutions define a political practice as "democratic", many people will tend to accept this evaluation because they have no basis on which to compare. If the external institution presents a political development as progressive, then people will, at least for a while, accept this judgement as being true, even if their local and personal experience is that oppression is increasing.

When external institutions such as the Commonwealth involve themselves in a political process such as Swaziland's "constitution-making" process, it can be argued that the institutions have at least a moral and probably a legal duty of care towards Swazi citizens. In some ways it can be argued that this duty of care is, at least to the citizens, less complicated than the duty of care owed by the government to the people of Swaziland. Swazis expect the monarchy to entrench and maintain its dictatorship and are thus aware that the actions of internal institutions are unlikely to be benevolent. However, they expect the Commonwealth and the UNDP to assist the pro-democracy movement in Swaziland to develop a democratic and socially just society.

If external institutions represent their involvement as being for the purpose of facilitating democracy and social justice and then act to prevent such developments, then surely they have breached their duty of care towards the oppressed. In our view, the support of the "constitution" provided by the Commonwealth and the UNDP has retarded the socio-political development of Swaziland and constitute a breach of these organisations' duty of care towards Swazi citizens.

In this case, as noted above, the involvement of external institutions have prevented democratic developments and assisted the dictatorship by providing a false appearance of progress. This is likely to eased internal and international pressure on the regime to make meaningful changes. Thus it can be argued that the duty of care is breached both by acts of commission (eg., praising the developments as democratic when they obviously are not) and acts of omission (eg., failing to inform Swazis and the world community of the truly anti-democratic nature of the "constitution" making process and outcome). In fact, the situation in Swaziland has deteriorated since external institutions have been involved in the "constitution-making" process over the last decade. During this period, the rule of law has collapsed in the country, more money has been stolen, political prisoners have languished in jail without due process and many people have died of starvation, HIV and poor medical treatment. If the external institutions had abstained from involvement and taken an ethical stance by refusing to provide false hope, Swazis may have acted more decisively to remove the dictatorship that oppresses them and have been spared at least some of the violations that have occurred over the past decade.

2) The future of the "constitution" The regime, the Commonwealth and UNDP know that this constitution is bad for Swaziland and that the people of Swaziland are extremely unhappy with this law. Hence, they have been quick to ward off criticisms by arguing that the constitution is subject to amendment. The publication of the draft constitution in 2003 was accompanied by assurances that the document could be changed before becoming law. At the time, it was evident that the die had been cast and it is now clear that these reassurances were simply lies. Unfortunately similar false assurances have been given with the finalisation of the “constitution”. At the signing ceremony, King Mswati III used the analogue of sicholo (a bee-hive traditional hair style worn by women) "which is taken care of now and again when it has not taken the good shape" to argue his case that the constitution can be amended. This analogy may sound plausible but it ignores the fact that this "constitution" is fatally flawed and cannot be fixed by any amount of amendments. A more accurate analogy would be that the “constitution” is a bad sicholo infested with head lice (tintfwala). The only cure is to shave it off and allow new healthy hair to grow. The whole process was rigged and the “constitution” does not need amendments. It must be thrown away and a new process, negotiated by a free and well-informed people, established.

PUDEMO Representative, Australia, Asia and the Pacific Region**
 * Signed: Jabulane Matsebula