REPORT OF THE JOINT PROMOTION
Presented to the 59th Ordinary Session of the African Commission on
Human and Peoples’ Rights,
held from 21 October to 04 November 2016,
in Banjul, The Islamic Republic of Gambia
TABLE OF CONTENTS
Acknowledgements
…. Pg. 4
Introduction
…. Pg. 5
Terms of Reference of the Mission
…. Pg. 6
Methodology
…. Pg. 6
General Information on Swaziland
…. Pg. 7
Conduct of the Mission
…. Pg. 11
1.
2.
3.
4.
5.
6.
7.
8.
9.
Courtesy call on the Minister of Justice
…. Pg. 11
Meeting with the Prime Minister
…. Pg. 11
Meeting with the Minister of Foreign Affairs & International Cooperation
…. Pg. 13
Meeting with the Deputy Prime Minister
…. Pg. 14
Meeting with the Chief Justice
…. Pg. 15
Meeting with the Commissioner of Police
…. Pg. 18
Meeting with the Commissioner of Correctional Services
…. Pg. 20
Visit to Selected Places of Detention
…. Pg. 22
Meeting with officials of the Swaziland Commission on Human Rights and Public
Administration/Integrity
…. Pg. 25
10. Meeting with the Election and Boundaries Commission
…. Pg. 28
11. Meeting with the Media Institute of Southern Africa (MISA-Swaziland)
…. Pg. 29
12. Meeting with Honourable Mr. Phiwayinkhosi Mabuza, sitting in for the Minister of Information,
Communications and Technology
…. Pg. 30
13. Meeting with the Speaker of Parliament
…. Pg. 33
14. Meeting with NGOs, facilitated by the Co-ordinating Assembly of Non-Governmental
Organizations (CANGO)
…. Pg. 36
15. Courtesy call on the Vice Chancellor of the University of Swaziland
…. Pg. 39
16. Meeting with the Director of Management Services, Ministry of Public Service
…. Pg. 40
17. Meeting with officials from the National Emergency Response Council on HIV/AIDS …. Pg. 41
18. Meeting with the Under Secretary in the Ministry of Labour and Social Security
…. Pg. 43
19. Meeting with representatives of Trade Unions
…. Pg. 44
20. Meeting with the Law Society of Swaziland
…. Pg. 45
21. Meeting with the Minister of Natural Resources and Energy
…. Pg. 46
22. Meeting with the UN Resident Coordinator, United Nations Development Program …. Pg. 48
23. Meeting with the Minister of Justice and Constitutional Affairs
…. Pg. 49
24. Meeting with the Ambassador of the EU Delegation to the Kingdom of Swaziland
…. Pg. 50
Observations and Analysis of the Commission
…. Pg. 51
Recommendations
…. Pg. 57
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ACKNOWLEDGEMENTS
The African Commission on Human and Peoples’ Rights (the Commission) would
like to express its gratitude to the Government of the Kingdom of Swaziland
(Swaziland) for authorizing this Promotion Mission, and for putting at the disposal
of its delegation all the necessary facilities and personnel to ensure the success of the
Mission. In particular, the Commission singles out for special gratitude, the Minister
and staff of the Ministry of Justice and Constitutional Affairs, in addition to the
Executive Secretary of the Commission on Human Rights and Public
Administration/Integrity, for the excellent arrangements put in place which enabled
the delegation to meet a cross-section of the Swazi society, in order to have a fairly
representative view of the human rights situation in the country.
The Commission also wishes to thank all the representatives from various
Government ministries, independent statutory institutions, non-governmental
organizations (NGOs) and other individuals that found time to meeting with its
delegation.
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I.
INTRODUCTION
1.
The African Charter on Human and Peoples’ Rights (the African Charter) sets out in
Article 30 the establishment of a Commission on Human and Peoples’ Rights. The
African Charter came into force on 21 October 1986. The first members of the
Commission were elected at the 23rd Conference of Heads of State and Government
of the Organisation of African Unity (OAU) now the African Union (AU), in July
1987, and the inaugural session of the Commission took place in November 1987.
2.
Under the African Charter, the Commission is specifically mandated to promote the
observance of the rights guaranteed in the African Charter, to monitor the
implementation of the African Charter, to ensure the protection of the rights and
freedoms set out in the African Charter, and to interpret the African Charter and
advice on its implementation.
3.
Established under Article 30 of the African Charter on Human and Peoples’ Rights,
(the African Charter), the African Commission on Human and Peoples’ Rights (the
Commission) is mandated under Article 45(1) to promote human and peoples’ rights
and specifically to carry out studies and research, and to conduct visits to State
Parties to gather information on human and peoples’ rights, as well as formulate
rules and regulations that could be used by the State Parties in their human rights
policies and legislation.
4.
Acting on the strength of Article 45 (1) of the Charter, members of the African
Commission implement the promotional function of the Commission through
undertaking Missions to State Parties to the African Charter. Promotion missions are
an important aspect of the Commission’s activities, as they enable it to have
firsthand data on the human and peoples’ rights conditions of member states and
establish communication and links with Member States.
5.
The Kingdom of Swaziland (Swaziland) is party to the African Charter, which it
ratified on 15 September 1995.
6.
The Commission undertook its first promotion mission to the Kingdom of
Swaziland through Commissioner Pansy Tlakula from 21 to 25 August 2006.
7.
The second Promotion Mission of the Commission was undertaken in the Kingdom
of Swaziland, at the invitation of the Government, from 07 to 11 March 2016. The
members of the Commission that undertook the Mission were:
i. Honourable Commissioner Pansy Tlakula, the Chairperson of the Commission,
Commissioner Rapporteur for the Human Rights Situation in the Kingdom of
Swaziland and the Special Rapporteur on Freedom of Expression and Access to
Information in Africa (the Chairperson); and
ii. Honourable Commissioner Solomon Dersso, the Chairperson of the Working
Group on Extractive Industries, Environment and Human Rights Violations in
Africa (Commissioner Dersso).
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8.
The delegation was assisted by Mrs. Abiola Idowu-Ojo and Ms. Eva Shemmayah
Heza, Legal Officers at the Secretariat of the Commission.
II.
TERMS OF REFERENCE OF THE MISSION
9.
The Terms of Reference for Mission were as follows:
i. To promote the African Charter on Human and Peoples’ Rights (the African
Charter), and other regional human rights legal instruments, through the
exchange of views and sharing of experiences with the Government of Swaziland
and the main stakeholders working in the field of human rights, on strategies to
improve the enjoyment of human rights in the country;
ii. To advocate for the ratification of regional and international human rights legal
instruments that have not been ratified by Swaziland;
iii. To raise awareness on the activities of the Commission in Swaziland, especially
among the relevant Government departments and civil society organizations
(CSOs);
iv. To seek information on human rights issues of particular concern to the
Commission including abolition of the death penalty in law; prevention of
torture; the human rights situation of women and children; freedom of
association and assembly; independence of the judiciary; extractive industries;
older persons; persons with disabilities; and persons living with HIV/AIDS;
v. To visit prisons in Swaziland in order to assess the extent to which conditions of
detention comply with regional and international standards, and to hold
discussions with prison administrative officials and other stakeholders on all
issues relating to detention and prisons, and on the work of the Commission on
this theme;
vi. To initiate constructive dialogue with the Government about the importance of
the right to freedom of expression and access to information generally, as well as
before and after elections;
vii. To hold discussions on the national media legislation, policies and practice in
Swaziland, with regards to freedom of expression and access to information
standards in general, and the Declaration of Principles on Freedom of Expression
in Africa in particular;
viii. To follow up on recommendations given in the Promotion Mission to the
Kingdom of Swaziland, which was conducted by the Commission in 2006;
ix.
To follow up on implementation of the Commission’s recommendations in
Communication 251/02: Lawyers of Human Rights v. Swaziland, decided during the
37th Ordinary Session in 2005;
x.
To follow up on implementation of Resolutions and Press Releases which have
been issued by the Commission with regards to the Kingdom of Swaziland; and
xi.
To encourage the Government of the Kingdom of Swaziland to submit
outstanding Periodic Reports and to participate regularly in the activities of the
Commission including attending sessions of the Commission.
6
III.
METHODOLOGY
10.
During the Mission, the delegation met with various stakeholders at the high level
in Government, CSOs, the media, labour as well as other actors who are involved in
the promotion and protection of human rights in Swaziland, to exchange views and
collect the necessary information to establish the state of human rights in the
country, as well as identify how the Commission can assist the State in fulfilling its
international and regional obligations.
11.
The delegation met with the country’s highest authorities, including: the Prime
Minister of Swaziland; the Minister of Foreign Affairs & International Cooperation;
the Deputy Prime Minister; the Speaker of the House of Assembly; the Chief
Justice; the Minister of Justice, the Minister of Information, Communications and
Technology; the Minister of Natural Resources and Energy; the Under Secretary,
Ministry of Labour; and the Director, Ministry of Public Service.
12.
The delegation also held meetings with the various national institutions including
the Royal Swaziland Police Service, the Head of His Majesty’s Correctional Services,
the Election and Boundaries Commission, the Swaziland Commission on Human
Rights and Public Administration/Integrity (SCHRPA), the National Emergency
Response Council on HIV/AIDS.
13.
Additionally, the delegation met with representatives from the European Union
Delegation to the Kingdom of Swaziland, the United Nations Development
Program, the University of Swaziland, the Law Society of Swaziland, as well as
representatives from various CSOs working in Swaziland.
14.
The delegation visited the Matsapha Correctional Centre, the Mawelawela Women’s
Correctional Centre and the Vulamasango School where juveniles in conflict with
the law receive education, where it met with personnel involved in the prison’s
administration.
15.
The Mission concluded with a joint press conference held with the Prime Minister of
Swaziland; this was followed by a general press conference.
IV.
GENERAL INFORMATION ON SWAZILAND
(a) Brief Historical and Political Background of Swaziland
16.
The Kingdom of Swaziland, sometimes called kangwane or Eswatini, is a sovereign
state in Southern Africa. The people who inhabited Swaziland were clans of Bantu
origin who migrated to the region and settled in Swaziland the 18 th century.
Following an appeal from the ruler, Mswazi, for support against Zulus, the British
and the Transvaal governments guaranteed the independence of Swaziland in 1881.
17.
South Africa held Swaziland as a protectorate from 1894 to 1899, but after the Boer
War, in 1902, Swaziland was transferred to British administration. After the territory
was constituted a protectorate in 1963, it became the independent nation of
Swaziland in 1968.
7
18.
On 12 April 1973, King Sobhuza II issued the King’s Proclamation No. 12 of 1973,
whereby he declared that he had assumed supreme power in the Kingdom of
Swaziland and that all legislative, executive and judicial power vested in him. This
also entailed the suspension of the Constitution and the banning of competitive
political activities including political parties. Swaziland then designed a political
system called the Tinkhundla, with the King as an absolute monarchy.
19.
King Sobhuza II who ruled the country by decree following the suspension of the
Constitution, passed away in 1982, after ruling Swaziland for 61 years, making him
the longest ruling monarch in history. A ‘Regency’ followed his death, with Queen
Regent Dzeliwe Shongwe being Head of State until 1984 when she was removed by
Liqoqo (the Swazi National Council) and replaced by Queen Mother Ntfombi Tfwala.
Mswati III, the son of Ntfombi, was crowned king in 1986.
(b) Current Political situation
20.
The Kingdom of Swaziland introduced a new constitution in 2005 and became a
constitutional monarchy. The 2005 Constitution is currently in force.
21.
The last elections were held on 20 September 2013. The balloting is done on a nonparty basis in all categories, and all election procedures were overseen by the
Elections and Boundaries Commission.
22.
For local administration Swaziland is divided into four regions (Hhohho, Lubombo,
Manzini, Shiselweni), each with an administrator appointed by the King. Parallel to
the Government structure is the traditional system, consisting of the King and his
advisers, traditional courts, and fifty-five (55) sub-regional districts in which
traditional chiefs are grouped.
23.
The status of political parties in Swaziland is not clearly defined. Political parties
were banned in Swaziland in 1973 by King Sobhuza II and this proclamation has not
been repealed. The 2005 Constitution does not mention political parties, but does
guarantee freedom of association, and on this basis, the African United Democratic
Party was registered as a legal political party.
24.
There is no legislation in Swaziland governing registration, regulation, funding and
financial control of political parties.
(c) Current Structure of Government
The Head of State
25.
The country’s current Head of State is His Royal Highness, King Mswati III.
The Executive
26.
Executive power lies with the King who exercises it directly or through the Cabinet.
The Prime Minister, who is Chairman of Cabinet and leader of Government in
Business, is appointed by the King, from the members of the House of Assembly,
acting on the recommendation of the Advisory Council and may be removed from
office by the King for incompetence.
8
27.
The Executive arm consists of the Cabinet and civil servants. The Cabinet is made up
of the Prime Minister, the Deputy Prime Minister and eighteen (18) Ministers. They
are responsible for policy making, administration and executing the functions of
government. The King appoints Ministers, on the recommendation of the Prime
Minister, from both Chambers of Parliament. At least half of the Ministers are
appointed among the elected members of the House.
The Legislature
28.
The Swazi bicameral Parliament or Libandla consists of the Senate (30 seats; 10
members appointed by the House of Assembly and 20 appointed by the monarch to
serve five-year terms) and the House of Assembly (65 seats; 10 members appointed
by the Monarch and 55 elected by popular vote to serve five-year terms). The
elections are held every five years after dissolution of Parliament by the King.
The Judiciary
29.
The country’s judiciary comprises of the Courts of general jurisdiction, the Supreme
Court, High Court and Magistrate Courts and other specialized courts, such as
Swazi or Customary Courts. In addition there is the Industrial Court and the
Industrial Court of Appeal, which are specialist tribunals whose jurisdiction is
confined to Labour disputes. The court system is headed by a Chief Justice.
30.
The Judges of the superior courts are appointed by the King, on the advice of the
Judicial Service Commission. Judges are removable by the King for incompetence or
misbehaviour only on the recommendation of the Judicial Services Commission.
Officers of the Swazi Courts, which administer Swazi law and custom, are
appointed by the King, independently of the Judicial Service Commission.
(d) General Information about Swaziland: the Land and the Peoples
31.
Swaziland is a landlocked country in Southern Africa, lying between Mozambique
and South Africa. Swaziland has an area of 17,363 square kilometres, of which 160
are water. The major regions of the country are Lowveld, Midveld and Highveld.
The capital city of Swaziland is Mbabane. As of 01 January 2016, the population of
Swaziland was estimated to be 1,291,298 people.
32.
The majority of Swaziland's population is ethnic Swazi, mixed with a small number
of Zulus and white Africans, predominantly of British and Afrikaner origin. This
population also includes a small segment within it that is mixed with any number of
these ancestries. Swaziland also received Portuguese settlers and black refugees
from Mozambique.
33.
Traditionally, Swazis have been subsistence farmers and herders, but most now
work in the growing urban formal economy and in government. Some Swazis work
in the mines in South Africa.
34.
Swaziland is a largely religious society, with Christianity, and Swazi traditional
religion being the most popular religions. 82.70% of the total population adheres to
Christianity, making it the most common religion in Swaziland. Christianity in
Swaziland is sometimes mixed with traditional beliefs and practices. Most Swazis
ascribe a special spiritual role to the Swazi Royal Family.
9
35.
The country's official languages are Siswati (a language related to Zulu) and English.
Government and commercial business is conducted mainly in English. Asians,
Afrikaners, Portuguese, and black Mozambicans speak their own languages.
36.
Swaziland possesses the following natural resources: asbestos, coal, clay, cassiterite,
hydropower, forests, small gold and diamond deposits, quarry stone, and talc.
670km of the country’s land is irrigated.
37.
The climate of Swaziland varies from tropical to near temperate. Generally speaking,
rain falls mostly during the summer months, often in the form of thunderstorms.
Winter is the dry season. Annual rainfall is highest on the Highveld in the West,
between 1,000 and 2,000 mm (39.4 and 78.7 in) depending on the year. The further
East, the less rain, with the Lowveld recording 500 to 900 mm (19.7 to 35.4 in) per
annum. Variations in temperature are also related to the altitude of the different
regions.
(e) Ratification of Regional and International Human Rights Instruments
38.
Swaziland has ratified, or acceded to the following regional and international
instruments:
-
39.
African Charter on the Rights and Welfare of the Child;
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (the Maputo Protocol);
African Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa;
International Covenant on Civil and Political Rights;
International Covenant on Economic, Social and Cultural Rights;
Convention on the Elimination of All Forms of Discrimination against Women;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT);
International Convention on the Elimination of All Forms of Racial
Discrimination;
Convention on the Rights of the Child;
Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict;
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography
Convention on the Rights of Persons with Disabilities; and
Optional Protocol to the Convention on the Rights of Persons with Disabilities.
Swaziland has not ratified the following regional and international instruments:
-
Protocol to the African Charter on Human And Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights;
10
-
The Malabo Protocol on the criminal jurisdiction of the African Court (please
check the full title of the protocol as it relates to the African Court as well)
African Charter on the Rights and Welfare of the Child???
African Charter on Democracy, Elections and Governance;
Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty;
Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights;
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment;
International Convention for the Protection of all Persons from Enforced
Disappearance; and
International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families.
V.
CONDUCT OF THE MISSION
40.
This section of the Report provides highlights of the series of meetings held with
diverse stakeholders who play important roles in the promotion and protection of
human and peoples’ rights in Swaziland.
Courtesy call on the Minister of Justice
41.
The mission commenced with a brief courtesy call to the Office of the Minister of
Justice and Constitutional Affairs, H.E. Mr. Edgar Hillary, who received the
delegation. The delegation expressed gratitude for the authorization granted to
conduct the mission, and raised briefly with the Minister, issues relating to: (i) the
implementation of the Commission’s decision in Communication [Lawyers for Human
Rights v. Swaziland]; and (ii) the outstanding periodic State Reports of Swaziland
under the African Charter and the Maputo Protocol. Thereafter, the Minister of
Justice then led the delegation to the Office of the Prime Minister.
Meeting with the Prime Minister
42.
The delegation paid a courtesy call and held a working meeting with the Prime
Minister of Swaziland, H.E. Dr. Barnabas Sibusiso Dlamini. This meeting was also
attended by the Minister of Justice, and some other Government Officials including
the Permanent Secretary in the Office of the Prime Minister, the Permanent Secretary
in the Ministry of Justice, and the Press Secretary in the Office of the Prime Minister,
amongst others.
43.
The Prime Minister welcomed the delegation and noted the Government’s
commitment towards ensuring that a successful Mission was conducted.
44.
In her introductory remarks, the Chairperson briefed the Prime Minister on the
objectives of the Promotion Mission, which included an assessment of the status of
implementation of the obligations of Swaziland under the African Charter, as well
as following up on past recommendations and decisions of the African Commission
pertaining to the Kingdom of Swaziland. The Chairperson also called on the
Government to ratify outstanding international and regional human rights
11
instruments, and to submit outstanding Periodic Reports, in fulfilment of its
obligations under the African Charter and the Maputo Protocol.
45.
The Prime Minister and the other officials present informed the delegation on the
efforts being undertaken by the Swazi Government in fulfilment of its obligations,
including the inclusion of a bill of rights in the Swazi Constitution and the
establishment of a national human rights institution, namely the Commission on
Human Rights and Public Administration/Integrity. During the discussion, the
delegation raised a number of issues including: freedom of association with
particular reference to political parties and their participation in elections; the death
penalty; the independence of the Judiciary; freedom of expression and media
freedom; women’s rights and cultural practices adversely affecting woemn; and the
space for civil society organisations and other non-State actors involved in the
promotion and protection of human rights in Swaziland.
46.
On the issue of freedom of association with regards to political parties, the Prime
Minister noted that Swazi citizens have pronounced themselves on the issue,
deciding that representation in Parliament should be on a personal basis, and not
based on political affiliation. In this regard, he noted that anyone can contest in
elections once they have the support of ten people, thereby giving each person equal
chances of contesting for parliament, as opposed to candidates who might be
imposed by the political parties. He indicated that that this is a ‘home grown’
democratic political system for the Swazi people, which enjoys the people’s support
and elections are keenly contested, as demonstrated for instance by the turnout in
the last elections, which was over 80%. He added however that notwithstanding this
preferred political system, political parties do exist, and persons belonging to
political parties participate freely in elections and have been elected into parliament,
although in their personal capacities and not on the platform of political parties.
Furthermore, the question was raised as to why external actors always bring up the
issue despite the clear expression of the position of the Swazi people regarding
political parties, and whether political parties should be imposed on the people even
if they do not want them. The Chairperson of the Commission indicated that the
challenge is that although no one model of democracy is prescribed Swaziland is
party to regional and international human rights instruments which guarantee
freedom of association and the right to participate in government, including through
political parties.
47.
Regarding the issue of the death penalty, the Prime Minister noted that it is being
maintained in the laws of Swaziland only as a deterrent, because in practice, no
death sentence has been carried out in Swaziland since 1982. He further noted that
His Majesty the King has pardoned prisoners on death row almost on an annual
basis, and that as at that date, only one prisoner remained on death row having been
convicted of murdering twenty-three (23) women. He also noted that the Minister of
Justice is a member of the team on prerogative of mercy.
48.
On the issue of the independence of the Judiciary, the Prime Minister noted that
there were indeed challenges under the leadership of the previous Chief Justice,
who was found, after due investigations, to have been influenced by external forces.
The Chief Justice later resigned voluntarily, and a new Chief Justice has since been
12
appointed, with the mandate to ensure that the Judiciary functions efficiently and
independently.
49.
The Minister of Justice also responded to the question of outstanding Periodic
Reports, and made commitments that the Government of Swaziland would submit
the outstanding Report before the Commission’s ordinary session in November
2016.
Meeting with the Minister of Foreign Affairs & International Cooperation
50.
Next, the delegation met with the Minister of Foreign Affairs & International
Cooperation, H.E. Chief Mgwagwa Gamedze. The delegation expressed its
gratitude to the Honourable Minister for his assistance in facilitating the
authorization of the Mission, and the latter welcomed the delegation, reiterating the
Government’s commitment towards a fruitful mission.
51.
During the discussions that ensued, the following issues were raised: ratification of
outstanding human rights instruments; submission of outstanding periodic State
Reports; and clarification of the channel of transmittal of correspondences to the
State in relation to Communications pending before the Commission; and the
protection of the human rights of lesbians, gays, bi-sexual, transgender and inter-sex
(LGBTI) persons.
52.
In that regard, the Minister expressed the Government’s willingness to ratify all
relevant human rights instruments, and to submit its outstanding Periodic Report to
the Commission. He noted that Swaziland was in the process of finalizing its report
for Universal Periodic Review, and that once this was concluded, the Government
would take steps to submit its periodic State Report to the Commission. In this
context, he also noted the efforts of the Government in equipping the CHR so that it
can effectively execute its mandate.
53.
With respect to LGBTI persons, the Minister noted that African States have taken a
position on this, which the Swazi Government cannot go against. However, the
Minister noted that LGBTI persons in Swaziland have access to services, such as
health and education and are not discriminated against or prosecuted. He further
noted the need for the education and sensitization of the society to accept the
existence of LGBTI persons. On this issue, the Chairperson informed the Honourable
Minister about the Commission’s Resolution ACHPR/Res. 275(LV) 14: Resolution
on Protection against Violence and other Human Rights Violations against
Persons on the basis of their real or imputed Sexual Orientation or Gender
Identity; explaining that the import of the latter is to prohibit discrimination,
violence against LGBTI persons.
Meeting with the Deputy Prime Minister
54.
The delegation then met with the Deputy Prime Minister, H.E. Senator Paul
Dlamini, at his Office. In the introductory remarks, the delegation noted that the
Gender Coordination Unit is located within in the Office of the Deputy Prime
Minister, and in this regard, reiterated the reporting obligations of Swaziland under
the Maputo Protocol. The delegation thereafter sought to be updated on the status of
13
certain gender-related issues of concern pertaining to Swaziland, including: gender
equality and cultural practices; child marriage; and women and inheritance.
55.
In his response, the Deputy Prime Minister noted and affirmed the importance of
fulfilling Swaziland’s reporting obligations under the Maputo Protocol. With
regards to the issue of gender in the Kingdom, he indicated that significant progress
have been made, but however that cultural beliefs and practices continue to pose
some challenges, including the women’s perception of themselves, in relation to
men. He noted that women generally consider themselves inferior to men, and as a
result, they do not freely express themselves in community meetings involving men,
and have very low representation in parliament, especially as during the last
elections, and for reasons unknown, only one female candidate was elected into
parliament, despite sensitization campaigns by Government to encourage election of
female candidates.
56.
Concerning women’s right to property inheritance, the delegation learnt that the mix
of traditional culture and western ideals complicates the matter. The Deputy Prime
Minister noted that under the traditional culture the extended family decided who
took control of the deceased man’s property and under this system, it was possible
for a widow to take charge of her husband’s property, but however that western
ideals have brought about the notion of equal division of property. He further noted
that the issue of inheritance is further exacerbated by the fact that young unmarried
women cannot inherit property, and indicated that his Office was still working on
this issue.
57.
With regard to the land tenure system, the delegation was informed that land is held
by the King and divided among the Chiefs, and that that there are no female Chiefs,
on account of culture.
58.
On the issue of property acquisition by women, the Deputy Prime Minister
acknowledged the existing practice requiring women to acquire property through a
male relative on account that women cannot acquire land directly, and indicated
that his Office has put in place programs that address equal opportunities for
women.
59.
60.
While the Prime Minister considered his office lucky for having the Queen Mother
championing women empowerment he noted that the electoral system which entails
direct representation and therefore requires female candidates to campaign
themselves, appears to have the effect of placing women at a disadvantage.
On the protection of women from gender based violence, the Commission’s
delegation observed that the Sexual Offences and Domestic Violence bill in the
Parliament had been pending for ten (10) years, and sought to know its current
status, and in response, it was informed that the bill had been finalized and would
hopefully be adopted by the current 10th parliament.
On female genital mutilation (FGM), the delegation was informed that this is not
practiced in Swaziland, but that notwithstanding, and pending the adoption of the
Sexual Offences and Domestic Violence bill, the Government has put in place a
number of programs to address all forms of violence against women, including the
establishment of the One Stop Centre which address such abuses.
14
61.
On the issue of child marriage and pregnancies, the delegation was informed that
this is a prevailing concern in Swaziland, and that this is widespread amongst
orphaned and vulnerable children. It was also noted that programs and activities
have been developed to provide assistance and protection to these vulnerable
children, and that while the focus was previously on the girl-child, the programs
have subsequently been extended to boys, to ensure a holistic resolution of the
problem. The delegation was also informed that there was a draft law - The
Children’s Protection and Welfare Act of 2012, which prohibits child marriages, and
also that trainings and seminars are conducted for Judicial Officers, in order to
capacitate them to address the issue of child marriage effectively.
62.
In his concluding remarks, the Deputy Prime Minister noted that a main challenge
being faced is the disintegration of the nuclear family, and that there were only 23%
married families.
63.
In closing, the delegation requested for statistics on the representation of women in
Government, as well as the list of the programs currently in place on gender
mainstreaming.
Meeting with the Chief Justice
64.
The delegation was received by the Chief Justice (CJ), Honourable Justice Bheki
Maphalala. A briefing was provided on the mandate of the Commission, as well as
the objectives of the mission, which included following up on the challenges
observed from the previous mission in 2006, pertaining to the independence of the
Judiciary in Swaziland.
65.
The delegation sought to know about: the efforts made by the Government in
addressing the allegations of corruption in the Judiciary; the independence of the
Judiciary; recruitments in the Judiciary; backlog of cases; pre-trial detention; and
separation of powers. The exchange with the Chief Justice (CJ) highlighted the
plethora of institutional, ethical, and technical challenges afflicting the judiciary and
the delivery of justice in the Kingdom.
66.
On allegations of corruption in the Judiciary, the CJ noted that prior to his
appointment in May 2015, there had been some challenges with the judiciary, which
resulted in animosity between the Executive and the Judiciary, as well as the
commissioning of an inquiry into allegations of dishonesty by the former Chief
Justice, and his subsequent removal from office upon recommendation by the
Judicial Service Commission (JSC).
67.
In response to an enquiry as to whether corruption in the Judiciary under the old CJ
was institution-wide, the delegation was informed that the one case of corruption
involved the former CJ, the former Minister of Justice and a High Court Judge, and
that following the Commission of Inquiry established by the King, to look into the
allegations, the CJ and Minister of Justice were dismissed, and the High Court Judge
was suspended.
15
68.
Regarding the independence of the Judiciary, the CJ stated that the Judiciary in
Swaziland is independent as far as discharging its mandate is concerned and there
are no interferences by the Executive. He noted that there had only been one
instance of Executive interference with the Judiciary in 2002 when the Government
decided not to implement a decision of the Supreme Court, and that this incidence
culminated in the resignation of all judges of the Supreme Court. The CJ noted that
since this incident, the Judiciary has operated freely, and there are no interferences
by the Executive.
69.
On the appointment of Judges, the CJ noted that one of the main clauses of the 2005
Constitution was to phase out the appointment of foreign judges. He indicated that
this was in response to the fact that, initially, all the Supreme Court Judges were
retired white South African Judges, and also that in the late 2000s, there had been a
shift towards employing Judges from commonwealth countries within the African
continent. The CJ further noted that, upon his assumption of office, all foreign
Supreme CJ who were beyond the retirement age were retired, in compliance with
the Constitution.
70.
Also, the CJ indicated that there was a shortage of Judges and that he was in the
process of trying to assemble a permanent bench of local judges of the Supreme
Court before its first seating in May 2016. He stated that normally, the Supreme
Court sits only twice a year; in May and November; however due to the existing
backlog of cases, he had proposed that the Supreme Court should sit throughout the
year.
71.
On the backlog of cases in the Judiciary, the CJ attributed the problem to a number
of constraints facing the judiciary. He noted that the Judiciary does not have
sufficient funds, including for the provision of continuous legal training to Judges,
which in turn affects the quality of the justice being dispensed to the public.
72.
Admitting that a backlog of cases was indeed a serious problem facing the Judiciary,
he explained that these cases were accrued due to a shortage of Judges in the
country, as there were previously only about two to three Judges for the High Court,
and as at 2015, only six (6) for the whole country, thus resulting in a backlog dating
as far back as 1994 for civil cases and 2000 for criminal cases, and in thousands of
number. He further noted that he had requested and obtained from the Executive
four (4) additional posts, bringing the number of Judges to ten (10), since late 2015;
while noting that this number is still less than the constitutionally required
minimum of fifteen. The delegation was also informed that there were twenty (20)
Magistrates for the whole country, covering four (4) regions; a number, which was
also inadequate.
73.
Another challenge that the CJ highlighted is the lack of institutional independence of
the judiciary. He noted that despite the fat that the Constitution provides for
administrative and financial independence, the judiciary is not actually in control.
Thus the judiciary cannot create new posts on its own. Instead, new posts that the CJ
seeks to establish require the authorization of the Executive inhibiting the hiring of
new judges. He informed the delegation that he was awaiting for approval of
request made in October 2015 for five posts for High Court, seven for Supreme
Court, three for Industrial Court and five for Industrial Court of Appeal.
16
74.
Similarly, the CJ pointed out that the Judiciary lacks financial independence. Instead
of presenting its own budget directly to the Minister of Finance, the judiciary
submits its budget to the Minister of Justice, and it is consequently not in control of
its own budget. The delegation also learnt that the Judiciary got the lowest allocation
in the budget adopted by Parliament in March 2016, which is indicative of the
priority accorded by the Government to the administration of justice, and has
serious implications for combating crimes and dispensing justice.
75.
In addition, the delegation learnt that there was no permanent bench for the
Industrial Court of Appeal, and as a result, the High Court Judges had to sit as
acting Judges of the Industrial Court of Appeal, thus increasing the backlog in the
High Court. In addition, the High Court Judges sat over appeals from the Magistrate
Court. In light of these, the CJ observed that Judges of the High Court were actually
overworked, as opposed to the perception that they were not working.
76.
The CJ informed the delegation presence of similar challenges of severe shortage of
magistrates and case backlog in the magistrate courts. There are 22 magistrates for
the entire country.
77.
The CJ highlighted the need for the JSC to recruit the positions required in the
Judiciary, as opposed to the current reliance on the Executive. On the quality of
recruits, the delegation learnt that the Judicial Officers are poorly paid, and that this
makes it difficult to attract and recruit the most competent and knowledgeable
candidates as a result of the poor terms and conditions of employment.
78.
Another issue highlighted by the CJ pertaining to the backlog of cases is the lack of
courtrooms. The delegation understood that the High Court Building in the CJ’s
Office is also being used by the Supreme Court, the Industrial Court, and the
Industrial Court of Appeal. Consequently, the various courts have to wait for one
another before they can use the existing courtrooms, and in order to resolve this
challenge, the CJ had applied to the Executive to set aside funds to build separate
structures for the different Courts. It was also noted that the Magistrate Courts are
in need of additional courtrooms.
79.
As part of the effort to address the impact of backlog on pre-trial detainees, the
delegation learnt that upon assumption of office, the CJ initiated procedures to get
them all released and to promote the culture of justice including notably, the
constitutional principle of presumption of innocence. He also informed the
delegation that there are currently no political detainees or prisoners in the country.
80.
Lastly, on separation of powers and the independence of the Judiciary vis-à-vis the
ultimate decision making power of the King over all three arms of Government, the
delegation was informed that in practice, the King relies on the advice of the three
arms of Government, and therefore decisions are taken after the views of relevant
actors have been consulted. Concerning the related issue of the 2011 Directive
protecting the King from lawsuits and pursuant to which all cases involving the
King are not admitted, the delegation learnt that this did not emanate from the King
or JSC but from the former CJ at his own instance, and that the King does not
require any directive to be protected as he is protected by the Constitution. The
17
delegation also understood that the compatibility of the Directives with the
Constitution was being examined.
Meeting with the Commissioner of Police
How about organizing the sections around relevant themes rather than a chronological
rendering of the information obtained during the particular session,
Eg. Torture should be addressed as theme in consecutive paras rather than appearing
now and again in between other issues, the same thing with respect to mechanisms of
oversight and redress? – See the changes made
81.
The delegation met with the National Commissioner of the Royal Swaziland Police
Service, Mr. Isaac Mmemo Magagula and other senior Police Officers, at the
headquarters of the Royal Swaziland Police Services.
82.
After the introductory remarks explaining the purpose of the Commission’s mission,
the delegation enquired about the progress made by the Police since the last
promotion mission of the Commission in 2006 as well as the challenges being faced
by the Police in observing and protecting the human and peoples’ rights under the
African Charter. The delegation enquired amongst others, about: the efforts made to
contain and redress torture and Police brutality in the country if any; measures
taken to provide human rights training to the Police; pre-trial detention; and steps
taken towards attaining gender balance in the Police.
83.
The Commissioner of Police informed the delegation that significant efforts are
being made to ensure that policing is being done in accordance with constitutional
rights and applicable laws, but that in reality, there are instances which require the
application of some measure of force, in ensuring security, law and order in the
country. He noted that the Police had undergone massive transformation since the
last promotion mission, and that what is left is to professionalize the force. With
regard to gender, the delegation learnt that women have been involved in policing,
and that the number of women in the Police force has increased, including the
Principal Assistant and successor-in-line to the Commissioner of Police, who is a
woman. Also, it was reported that one out of every three officers in the higher
echelon of the Police force is female, while women hold 4 out of the 9 strategic
portfolios in the senior management of the Police Force.
84.
As regards human rights trainings, the delegation was informed that the curriculum
of the Police Academy includes human rights training, and that in general, all police
trainings include human rights content, and there are also specifically tailored
trainings addressing human rights issues in policing.
85.
With specific reference to torture, it was noted that while indeed there are, time and
again, such allegations, this is not considered acceptable and tarnishes the image of
the Police. Accordingly, there are policies, instructions and trainings for the Police
which all emphasize that torture is unacceptable, and the Police are being sensitized
and trained on how to handle suspects, with emphasis on the ‘philosophy of
investigation before arrest’, as may be applicable to each case. This principle
requires the collection and collation of information, as opposed to obtaining
18
confession under duress. It was further stated that there are vigorous trainings being
conducted at the Police Academy in the form of short courses targeted at torture.
86.
The Commissioner of Police nevertheless admitted that there are conditions that
affect the conduct of Police in the handling of suspects. He particularly mentioned
three such conditions: the propensity to extract evidence through interrogation in
cases where the police did not gather their own information, stress and lack of
professionalization.
87.
With respect to the mechanisms for handling allegations of torture, the delegation
was informed that it involves investigation of allegations through the internal
discipline and investigations unit, following which the matter would then be
referred to the Director of Public Prosecutions (DPP) Discipline and Investigations
Unit under the Office of the Director of Public Prosecution. Culpability following
such investigation could result in professional discipline and/or arraignment in
court and upon conviction, dismissal from the Police Force, as may be applicable. It
was however noted that there is no independent directorate for handling such
investigations, but rather, police-driven investigations, which are often suspect,
subject to the outcome; although, on the other hand, it was observed that an
independent directorate would have cost implications.
88.
In response to the question whether there are independent mechanisms for
verification by CSOs, the delegation was informed that if the case were one of a high
magnitude, the Prime Minister would order an independent probe to ensure that
justice is seen to be done. Also, private individuals, in law, have a right to initiate
private investigations and prosecutions under the criminal code, although this
requires authorization from relevant authorities. The delegation further learnt that
NGOs and other civil society actors are allowed to visit places of detention,
including foreign ones, and that the Commission on Human Rights and Public
Administration/Integrity (SCHRPA) can also undertake these independent
investigations, and can request for information from the Police.
89.
The delegation was also informed that there is a Victims support Unit and the law
provides for compensation for established cases of torture or infraction of the rights
of suspects or detainees. The Commissioner of Police concluded on this point by
informing the delegation that the Police enjoy a measure of confidence from the
Public, but that there is much room for development.
90.
The exchange also highlighted some of the human rights issues involving the Police.
These include corruption, torture, excessive use of force and the related issue of
police brutality. The issue of accountability for such violations was also noted. In
this regard, the delegation learnt that such cases take too long to be completed due
to backlog in the courts, and that there were at that time, sixty-five (65) of such
pending cases of, which has the effect of fostering impunity.
91.
The delegation shared with the Commissioner of police about the work of the
Commission on the prohibition and prevention of torture, including in particular,
the Guidelines and Measures on the Prohibition and Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment (the Robben Island Guidelines)
and the Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention.
19
The Commissioner of Police welcomed the information provided, and indicated that
they would be happy to receive such sensitization materials which could be used in
further providing training to the Police. On whether there are any steps being taken
towards the adoption of a national legislation for the prohibition and prevention of
torture, he observed that, whereas Swaziland has ratified CAT, he was not sure
whether the law had been domesticated as there is often a lacuna between
ratification of relevant international human rights treaties and their domestication;
but however, that the country was in the process of drafting ‘anti-torture’ legislation.
92.
On pre-trial detention and prison conditions, the delegation was informed that
juvenile detainees and prisoners were separated from adults; hardened criminals
from first offenders; and male criminals from female ones. It was also noted that
while some of the detention and prison facilities were of colonial standards, some
met international standards.
93.
Finally, in response to an enquiry about the death penalty, the Commissioner of
Police informed the delegation, that while this was still in the statute books of
Swaziland, it was not and would not be implemented, being a civilized nation that
had moved away from such archaic practice.
Meeting with the Commissioner of Correctional Services
94.
The delegation was received by Commissioner General Mr. I.M. Ntshangase,
the Deputy Commissioner General Commissioner Ms. P.M. Dlamini, and other
senior officers of His Majesty’s Correctional Services.
95.
In his briefing, the Commissioner General noted that His Majesty’s Correctional
Services, mandated by the Prisons Act (1964), in addition to the Constitution of
Swaziland (2005), has the mission to be an efficient and effective provider of
security, rehabilitation, reintegration and community corrections. Regarding the
composition of the Correctional Services, the Commissioner General noted that: it is
made up of sixteen (16) centres across the country, comprising fourteen (14)
correctional facilities, one (1) college and one (1) head office. The Correctional
Services has two thousand and nineteen (2019) officers. There were three thousand
three hundred and sixty-nine (3,369) offenders housed in the correctional facilities,
although the actual capacity of the facilities is for two thousand, eight hundred and
thirty-eight (2,838) offenders.
96.
Regarding the treatment of offenders, the delegation learnt that: they are provided
with three (3) balanced meals, reasonable shelter with hot water, sleeping mats and
beds, in addition to blankets and uniforms. They have medical and health facilities
as there are clinics in all the Prison centres, operating 24 hours a day, 7 days a week,
with qualified nurses and departmental medical doctors, with complicated cases
being referred to Government hospitals. Inmates are allowed visits by loved ones
and next of kin and have access to information and communication including
through telephone booths, television sets and the sending and receipt of letters.
They are enlisted in rehabilitation programs including formal education and
vocational trainings including construction, welding, electrical wiring, painting and
agriculture.
20
97.
The delegation also learnt that: juvenile offenders attend the same school with the
children of the prisons’ officials; they wear normal school uniforms and not prison
uniforms to school, while their teachers also wear civilian clothing; and their
academic performances are very good.
98.
The delegation was also informed that alternatives to sentencing are employed for
first and second time offenders, with reasonable accommodation for their work and
school schedules. The delegation also heard that there is a program for reconciling
victims and offenders and resettling previous convicts, a commendable practice that
imbues useful African traditional approaches to the criminal justice system.
99.
The challenges facing the Correctional Service that were highlighted include
shortage of professionals; inadequate operational equipment; budgetary constraints;
and inadequate training opportunities as well as overcrowding.
100.
The delegation thereafter sought responses and clarifications from the officials
regarding: prisoners on death row and the use of the death penalty; incidences of
forced confessions and the use of torture; and facilities for health care and the wellbeing of prisoners, including HIV/AIDS prevention, treatment, care and support
interventions.
101.
The Correctional Services informed the delegation that out of a total prison
population of three thousand five hundred and ten (3,510) only two hundred and
fifty-five (255) were female. They are held in a prison facility with the capacity of 120
inmates. Out of the total population of women inmates, there are 57 convicts. The
delegation learned that the percentage of women inmates with HIV/AIDS stands at
a staggering 68 per cent, much higher than the percentage of male inmates.
102.
It was noted that due to a huge backlog of cases in the courts, there was a large
number of inmates on remand who had pending cases, numbering about eight
hundred (800), and that this was contributory to the issue of congestion. However, it
was indicated that efforts were being made to decongest the prisons, including
through expansion of facilities and the use of alternative sentencing. In this regard, it
was reported that a request had been made to the Government to construct an
additional centre in Lubombo, and also that the Correctional Services Bill had been
tabled before Parliament, which would give greater leeway for sentences to be
served as community services, and thus ease congestion in prisons. Furthermore, the
delegation learnt that some of the existing prison facilities need rehabilitation, and
also that due to the current drought, the prisoners cannot be provided with proper
meals.
103.
Concerning prisoners on death row and the use of the death penalty, the delegation
was informed that there was only one (1) death row inmate, as the King had
pardoned the rest and their sentences had been commuted to life sentences.
104.
On HIV/AIDS in the prisons, the delegation was informed that the population of
persons living with HIV in the prisons was slightly above fifty per cent (50%) of the
prison population, and that this puts a lot of strain on the facilities. Screening is
conducted upon admission into incarceration through voluntary testing and
appropriate counselling.
21
105.
Furthermore on visitation rights, the delegation understood that journalists as well
as NGOs can visit the prisons, but subject to prior arrangements with the Prisons’
public relations office, due to security safeguards.
Visits to Places of Detention
106.
Next, the delegation visited selected detention facilities. These were: the Matsapha
Correctional Centre, the Mawelawela Women’s Correctional Centre and the
Vulamasango School where juveniles in conflict with the law receive education,
where it met with various personnel involved in the prisons’ administration, as well
as prisoners. The delegation was accompanied by the Deputy CommissionerGeneral, Commissioner Ms. P.M. Dlamini, and other senior Correctional Officers.
This section of the Report gives a brief description of the observations of the
delegation.
Matsapha Correctional Centre
107.
The delegation visited the Matsapha Correctional Centre, situated in Manzini and
received a briefing from the Deputy Officer in Charge, Senior Superintendent Mr.
Musawenkhosi Shongwe (SSP).
108.
He told the delegation that Matsapaha is the maximum security prison for adult
male offenders in Swaziland, with a maximum capacity of 550 inmates. He further
stated that the prison houses a total of 864 inmates, of whom 126 were maximumsecurity inmates. The delegation was informed that the inmates are classified upon
admission according to age, crimes and whether they are smoking or non-smoking,.
He further noted that in addition to Correctional Officers, the staffs include a
developmental psychologist and a chaplain. He noted that the facility offers
education basic to tertiary levels, vocational training for life skills, including metal
work, and carpentry, among others.
109.
During the visit the delegation physically inspected the prison facilities. The
delegation observed that the prison, despite apparent overcrowding, contains cells
in fairly good physical condition and cleanliness. They are provided with potable
water from taps both indoor and outdoor; there is an official registry of inmates with
their basic information, and a medical centre with 1 doctor and 3 nurses, which
looked rather small, in relation to the number of prisoners in the Prison; and there is
also a library, and a shop with supplies, selling essential items to inmates at
reasonable prices. Other facilities in the prison include the kitchen, where the food
(including special diet) that inmates are fed for three days a day is cocked, the skills
acquisition units, including a bakery and a music academy as well as provision of
physical, psychological and spiritual care for inmates.
110.
Additionally, the delegation learnt that there are grievance procedures in place for
responding to allegations and concerns by inmates, through meetings with inmates
which are held weekly, or as often as might be required. This is overseen by a
grievance procedure committee comprising social welfare, the chaplain and one
senior officer at the prison, and inmates could request for the procedure to be
22
initiated by lodging a request through the request book or the officer-in-charge, or
after serving their sentence.
111.
Concerning HIV/AIDS in prison, the delegation understood that HIV is a problem
in the Prison. but however Yet, health facilities and services in the prisons meet
WHO standards, Anti-Retroviral are being distributed, and newly admitted inmates
are being screened for HIV, Tuberculosis and other infectious diseases, helping to
curtail pandemic. It was also reported that all relevant supplies are in place,
allocated and monitored by the Ministry of Health, although condoms are not
distributed. The inmates are also screened, monitored and treated for other lifethreatening conditions including Diabetes and Hypertension. Furthermore, the
delegation learnt that there had only ever been one incidence of outbreak of disease
in the Prison.
112.
With regard to challenges in the prison, the delegation was informed two issues
facing prison administration, namely contraband of prohibited items including
sharp objects and ‘gangsterism’.
113.
The private interview the delegation held with one prisoner, Mr. Boisi Gama,
highlighted issues of concern for prisoners. He informed the delegation that
treatment at the prison depends on the inmate’s behaviour. For instance, any one
who violated prison rules such as engaging in ‘gangsterism’, would be separated
from the general population and placed in an isolated cell.. Mr. Gama told the
delegation that he had been studying, and had enrolled for the educational and
vocational opportunities available in the prison and passed his external
examinations. One of the concerns he raised relates to the lack of separation of
prisoners who have been rehabilitated and are responding positively to the program
from hard-core criminals. He also complained about gangsterism in the Prison,
which hampers rehabilitation programs. On a personal level, he stated that he
craved for psychological counselling. Although his death sentence was commuted to
life imprisonment in 2001 and prisoners sentenced to life in prison serve a period of
25 years under the new Constitution (2005), he would only be eligible for release
when he was 75 years old as he would serve the entire 25 years, in addition to the
time he had already served..
114.
A member of the delegation from the Swaziland Commission on Human Rights and
Public Administration/Integrity (SCHRPA), committed to follow up on the matter
with the Ministry of Justice.
Mawelawela Women’s Correctional Centre
115.
During the delegation’s visit to the Mawelawela Correctional Centre for female
prisoners, the Officer in Charge, Mr. Meshack Simelane (SSP) noted that the
Correctional Centre had a prison population of 210 prisoners in a prison with actual
capacity of 120 inmates. The composition of the prison population includes: 57
convicts, 133 juveniles, 16 remandees, and 3 on community service. There were also
12 babies in prison with their mothers.
116.
The delegation visited the prison facilities, including the tidy houses where inmates
sleep, the day-care facilities for kids, the skills acquisition centres including a
23
hairdressing salon and a tailoring workshop where the uniform of the prison
wardens, amongst others, are sewn.
117.
Also, the delegation learnt from its visit about the condition of the prison, the
services available in the prison and the treatment accorded to prisoners. There are
seven different dorms assigned to inmates according to the nature of the crime for
which they are convicted or being held. The inmates are fed thrice a day and are
well treated. While the age of inmates range from 13 to 54 years old, juveniles are
separated from adults and they attend school. The prison has various services
including vocational training or formal studies for the rehabilitation of inmates. In
terms of health services, there is a clinic with qualified doctor and facilities for
paediatrics, a sick-bay and a paediatric room. HIV/AIDS is a problem in the Prison
at about 68% prevalence rate, but there is an HIV care program including provision
of Anti-Retroviral for all persons living with HIV/AIDS and the prevention of
mother-to-child-transmission, as a result of which all the babies in the prison are
HIV free. New mothers are given 3 months to rest and exclusively breastfeed their
babies, while the children are allowed to stay with their mothers until the age of 3
year. Phalala Medical Referral Fund, the healthcare fund provided by the
Government to Swazi citizens, is also accessible to the prisoners, and where
necessary, they can access the funds for medical care overseas; and convicted
prisoners are allowed visits during the weekend, while prisoners on remand are
allowed visitors every day. The delegation however learnt that there are no facilities
for the exercise of conjugal rights, and that this issue was being addressed amongst
others by the Correctional Services Bill No. 20 of 2015, which was still pending in
Parliament. The delegation also understood that the prison is also used for housing
illegal migrants and refugees, while their deportation is being processed.
Vulamasango School
118.
Lastly, the delegation visited the Vulamasango School in Malkerns, where juvenile
offenders receive education. According to the information received from Mr. Dan
Mavuso (Superintendent), the principal of the School, there were 470 juveniles
attending the school, including male and female juvenile offenders. The boys stay in
boarding facilities at the school, while the girls stay at Mawelawela, but pregnant
girls are not allowed in school. It is noteworthy that the school is open to the whole
community, and the juvenile offenders mix freely with the other children, including
the children of the prison officials who study at the same school and there is no
discrimination between them including in the use of school uniforms. The school
provides academic, vocational and arts trainings.
Meeting with officials of the Swaziland Commission on Human Rights and Public
Administration/Integrity (SCHRPA)
119.
The delegation also visited the SCHRPA. Following introductory remarks from the
head of the delegation on the role of the Commission and the purpose of the visit,
Mr. Masuku, who received the delegation together with three other Commissioners
and the Executive Secretary, briefed the delegation on the mandate of the SCHRPA.
He told the delegation that the SCHRPA was established under the 2005
Constitution and the first Commissioners were appointed into office in 2009 with the
SCHRPA secretariat established only in 2015. The Commissioners are appointed by
24
the King, on the recommendation of the Judicial Service Commission, for the
following terms: Commissioner – 5 years renewable once; and DeputyCommissioner – 7 years renewable. The SCHRPA was awaiting the adoption of its
enabling legislation, the Human Rights Bill (2011), which is expected to address,
among others, the operational and financial independence of the SCHRPA
120.
Regarding its mandate, the delegation learnt that the Commission receives and
investigates complaints of human rights abuses from the public, and can initiate
investigations proprio motu, or upon request by Parliament. Following such
investigations, it can issue reports and make recommendations. It also has the power
to mandate the release of relevant information for purposes of such investigations.
However, its jurisdiction excludes: matters before courts of law; matters designated
by the Constitution as royal prerogatives; and inter-governmental issues. The
SCHRPA is seeking to be vested with quasi-judicial powers. The delegation also
learnt that the SCHRPA is mandated to submit annual reports to Parliament.
121.
Following the briefing, the delegation raised a number of issues on the relationship
of the SCHRPA with government, law reform for aligning laws with the Bill of
Rights in the 2005 Constitution; the state of political parties and freedom of
association, as well as freedom of expression in the country. The delegation also
sought answers on the role of the SCHRPA in investigations regarding a coroner’s
inquest that took place in 2009.
122.
Concerning its relationship with the Government, the delegation learnt that it:
invites Government officials as parties to matters before it; and advises Government
as duty bearers. It is also consulted in the preparation of State reports, but as the
State has the final say, it can prepare its own alternative/shadow reports. On their
possible role of monitoring the implementation of the recommendations and
decisions of the Commission, the delegation was informed that the SCHRPA was
considering applying for Affiliate status with the Commission.
123.
On legislative reform, the delegation noted the absence of clear structure and
process for law reform. The delegation was informed that whatever piece-meal and
ad-hoc effort at ensuring the compatibility of laws depends on judicial review of the
laws. It was noted that there was a UNDP-supported law review / reform exercise
from 2008 to 2009, following which a number of draft bills emerged. The need for
further sensitization of the Parliament, as well as the Ministry of Justice, for
pursuing law reform was noted.
124.
On political parties and freedom of association, the delegation learnt that although
the SCHRPA had received a complaint from political parties regarding nonregistration; the complainant had not pursued this case, as a result of which the
SCHRPA had not been presented the opportunity to pronounce itself on the issue. It
was, however, noted that the country faced a problem with regards to the right to
freedom of association.
125.
Regarding freedom of expression, the delegation understood that the SCHRPA had
also not been presented with the opportunity to pronounce itself on the issue, but
that the country had a challenge regarding the exercise of this right. For instance, it
was noted that there was a pending case before the Supreme Court challenging the
25
Terrorism Act, and that there were also on-going processes of amending laws which
contradicted the right to freedom of expression, such as the draft bill on the Public
Order Act.
126.
In concluding the meeting, it was noted that the SCHRPA was faced with a number
of challenges, including insufficient resources to enable it to carry out its mandate,
lack of financial autonomy given that it has to go through the Ministry of Justice to
obtain its funds, and the delay in the appointment of key staff of its secretariat. It
was also noted that the enabling legislation was required in order for the SCHRPA
to function effectively.
Meeting with the Election and Boundaries Commission
127.
The delegation had a meeting with Commissioners and staff of the Election and
Boundaries Commission (EBC), and was received by the Chairperson of the EBC Chief Gija Dlamini, 2 Members of the EBC, and the Acting Head of the Secretariat.
128.
Following a brief introduction by the head of the delegation, Chief Dlamini led the
briefing of the delegation on the work of the EBC. The delegation was informed that
the EBC was established by virtue of the Constitution (2005), which also stipulates
its mandate and composition. In terms of the latter, the delegation was informed
that while the Constitution provides for 5 members, the EBC at that time was
composed of only 3 Members, due to the death of one member, and the appointment
of another as a High Court Judge in 2012, consequent to which their positions
became vacant. It was however noted that the EBC had the requisite quorum to
conduct its work. Also, it was noted that the appointments into EBC are done by the
King, on recommendation by the JSC.
129.
Chief Dlamini explained that the functions of the EBC are to oversee and supervise
the registration of voters, ensure fair and free elections, in addition to ensuring that
election regulations are followed. The EBC is also responsible for reviewing the
boundaries of tinkhundla areas, that is, constituencies, for purposes of elections.
130.
Upon enquiry by the delegation about the non-participation of political parties in
elections, it was explained that this is the preference of the majority of Swazis, who
are comfortable with direct representation based on individual merits, as opposed to
representation through political parties, and that this matter had been decided
during consultative meetings with citizens on three occasions, with the citizens
rejecting the proposal for the establishment of the political party system.
131.
It was pointed out however, that the electoral system does not bar people from
organizing into political parties. Members of political parties could contest in
elections, albeit on an individual basis and not as party candidates, and could
therefore exercise their rights to freedom of association and to political participation.
The delegation also learnt that there have been agitations to contest on the platform
of parties in light of Sections 24 and 25 of the Constitution. The EBC Chairperson
noted that the call for the introduction of party-based elections was outside the
mandate of the EBC, and depended on the will of the Swazi people. While noting
that the matter had not yet been subjected to a referendum, it was pointed out that
26
in previous consultations Swazis expressed concerns that the use of political parties
for election purposes risks potential divisions and equality of opportunity for
citizens to contest elections.
132.
Regarding the tinkhundla system, Chief Dlamini explained that this is a constituency
based system whereby the country is divided into 55 constituencies, comprising
communities, each of which have polling centres where elections for local
government, executive and the Parliament are conducted. During elections, at the
tinkhundla level, voters would elect delegates to serve in the House of Assembly and
Senate from among candidates, in a secret ballot.
133.
The delegation learned that various reforms have been introduced before the last
elections in 2013. As a result, 6 electoral acts came into force in 2013, namely: the
Elections Act; the Elections and Boundaries Commission Act; the Elections Expenses
Act; the Voters’ Registration Act; the Senate (Elections) Act; and the Parliament
Petitions Act. Among the electoral improvements these laws brought about include
secret-ballot voting, the counting and announcement of election results on the same
day, as well as open nominations of candidates, and also that civic education was
conducted on these new laws. The delegation also understood that the EBC
continues to work with recommendations from the African Union, the Southern
African Development Community and other stakeholders, to improve its working
methods.
134.
The discussion with the EBC revealed that there is a challenge with ensuring the
representation of marginal groups, including women, the youth and the disabled,.
Additionally, the EBC Chair also noted that despite of the civic and voters education
conducted for women, female candidates in the 2013 elections still performed very
poorly. He also highlighted that budgetary constraints of the EBC limits the support
it could give to women candidates and for the desired civic education, research and
public relations works. He therefore called for the EBC to be strengthened including
through adequate financial resources and the review of its structure.
135.
Furthermore, on the representation of women in Parliament, the Chair of the
Commission noted that Article 86 of the Constitution requires that if the 30%
minimum representation of women is not met, 4 women should be appointed to the
House by Parliament. However, these appointments have not been made despite the
failure to meet this minimum requirement in the 2013 elections.
136.
Also, on civic and voters’ education, it was further noted that any NGO or CSO
which wants to conduct this exercise is free to do so, following accreditation from
the EBC.
Meeting with the Media Institute of Southern Africa (MISA-Swaziland)
137.
The delegation held a meeting with the Media Institute of Southern Africa (MISASwaziland), led by Mr. Alec Lushaba, Chairman of MISA-Swaziland’s National
Governing Council, together with various representatives from media houses based
in Swaziland.
27
138.
The delegation enquired about the state of freedom of expression (FOE) in the
country, seeking to know whether the situation had improved since the last
promotion mission in 2006, including: whether there are any laws in place that
hamper FOE, or that promote access to information (ATI).
139.
Mr. Lushaba noted that one of the main concerns was the lack of law reform to align
laws related to the media in line with the Constitution (2005). He noted that while
there were a number of draft Bills as at 2006, there had been no progress, except in
the telecommunications industry, with the efforts towards de-monopolizing the
same. He stated that the media is still heavily controlled by the State, and that the
electronic media remains closed. With respect to the print media, while space is
available, there is still a lot of self-censorship. The delegation was informed that the
request for adopting a law regulating community radio stations remains unmet,.
140.
As regards defamation, the delegation learnt that while charging journalists with
criminal defamation has not been common there was a recent case of Editor Bheki
Makhubu and human rights lawyer Thulani Maseko. It was noted that such cases
against journalists for defamation amount to tools for suppressing and silencing the
media. It was noted that there are currently 33 laws, which restrict the media and
free practice of journalism in Swaziland. In this regard, it was pointed out that the
Suppression of Terrorism of Act is used by the State to suppress dissenting views, in
the name of combating terrorism. Concern was also raised about the consequent
exodus of journalists to Government security forces and the targeted recruitment of
journalists.
141.
With respect to the state of the media, the delegation learnt that there are currently 2
major newspapers in Swaziland, 2 state broadcasters, 1 private TV station, 1
religious station, 2 periodical magazines and few other start-up print media. Apart
from Communications’ Act, there was Media and Communications Bill pending in
parliament. Since 2013 the Swaziland Media Complaints Commission (MCC) has
been in existence as self-regulatory body of journalists and other media workers but
faces issues of lack of funding, visibility and government support.
142.
Concern was also raised about the implications of the Media Commission Bill on the
media in Swaziland. It was noted that while the Media Commission Bill had some
positive elements such as provisions for the training for journalists, the Bill could be
used by the Government to regulate the media by requiring that only trained
journalists could be licensed to practice in the country. Additional concerns are that
the Bill requires that journalists be licensed or accredited, and that the Media
Commission would potentially compete with the Media Complaints Commission,
which the media’s self-regulatory regime. Other pending laws include the
Swaziland Broadcasting & Cooperation Bill and Access to Information Bill (ATI
Bill)) was developed in collaboration with the Ministry of Information,
Communications and Technology in 2007 but has yet to be tabled before Parliament.
143.
An additional concern raised was with respect to accessing information. It was in
particular noted that the Public Service Broadcasting Guidelines blocks access to the
media by regulating access to and what Members of Parliament could say to the
media. It was noted that, Members of Parliament needed to get permission from the
Chief of a constituency to obtain authorization to speak to the media on any
28
particular issue. It was further noted that public sector unions could also not use the
public broadcaster.
144.
On social media, whose reach remains limited, concerns raised include high data
rate for internet access and the impact of the draft Electronic Evidence Act, which
threatens privacy in the social media, as Government could gather evidence from
the electronic media, and use private data.
Meeting with Honourable Mr. Phiwayinkhosi Mabuza, sitting in for the Minister
of Information, Communications and Technology
145.
The meeting held in the presence of the Honourable Mr. Phiwayinkhosi Mabuza,
and senior officials in the Ministry discussed the mandate of the Ministry and the
issues raised during the interaction with members of the media. It was noted that
the ministry is responsible for efficient national information, communications
and technology delivery framework to ensure access to ICT. In terms of legislative
framework particularly the Broadcasting and Corporation Bill and the Broadcasting
Bill, the delegation learnt that these draft laws are expected to liberalize and open up
the media space, and establish an enabling environment for the media, at the levels
of public, private and community broadcasting, in the country. It was learnt that the
two bills are being merged for presentation to the new parliament.
146.
As regards the law reform process in the country, the officials present echoed the
sentiments that existing laws on the media need to be brought in conformity with
the Constitution (2005) and Swaziland’s treaty obligations, noting that this falls
within the mandate of the Ministry of Justice. With respect to concerns on the Media
Communications Bill, the delegation was informed that that this draft law
emphasizes the need for educational qualifications of journalists and provides for a
minimum remuneration for journalists. The need for addressing concerns from the
media that this bill, when passed into law, could be used to restrict the media space
and that it could interfere with the work of the MCC has been observed.
147.
The delegation was informed that the Public Service Broadcasting Guidelines
developed in response to abuses observed where radio stations were used for
electoral campaign and defamatory exchanges. The officials stated that the
Guidelines, which require permission from the constituency wherefrom the MP
came for getting airtime, is meant to create order, and to ensure a balance in the
range of developmental issues being discussed rather than muzzle views.
148.
In closing, delegation also urged the ICT Ministry and the Government to: finalize
the various pending Bills; apply international standards such as the Commission’s
Model Law on ATI, when reviewing the various media laws; and ensure that the
digital migration process would not negatively impact rural communities; and to
review those laws including the Public Services Broadcasting Guidelines to remove
its impact on free expression and access to information.
Meeting with the Speaker of Parliament
29
149.
The delegation met with Honourable Themba Msibi, Speaker of Parliament in the
Kingdom of Swaziland. Following the introduction of the purpose of the mission of
the delegation, ,the issues on which the delegation sought the insight of the speaker
include: the stalled law reform process; the number of bills pending in Parliament;
the role of the speaker in the ratification and domestication of international and
regional human rights instruments; and the role played by Parliament in encourage
implementation of the Commission’s recommendations by the Government.
150.
In response, Honourable Msibi noted that protocols and conventions are submitted
to Parliament by the Ministers, for endorsement, and delay in bringing the various
instruments, which had been ratified before Parliament for domestication means
that Swaziland is behind in the domestication of a number of important instruments
which had been ratified by the country. Regarding the law reform process, the
Speaker noted that Parliament depends on the Executive to bring bills before it for
adoption by motion, but that this process is too slow. Although the Speaker noted,
that this may in part be addressed through enabling legislation operationalizing the
provision of the Constitution envisaging private members’ bills, this is not
practicable due to the absence of an enabling legal framework and the financial
implications involved.
151.
Regarding the oversight role of Parliament, while noting in general that this is
similar to what obtains in other jurisdictions, the speaker noted a number of
challenges, including lack of effective separation of powers and lack of financial
autonomy. On separation of powers, the Speaker noted that this is still a challenge
and undermines the work of Parliament in its oversight role over the Executive. For
example, he noted that a new position for a Minister responsible for Parliamentary
Affairs was created by the Parliamentary Service Act (2015) (PSA), and that
currently, the Minister for Parliamentary Affairs is the Prime Minister, which has
caused problems with the Speaker over the control and running of the Parliament.
He noted that the PSA gives the Office of the Prime Minister power over Parliament,
which creates the problem of embedding the Parliament in the executive, as
opposed to operating independently and effectively.
152.
On financial autonomy, Speaker Msibi noted that the Parliament does not have a
control over its budget but requires the approval of the Prime Minister for its
expenditures, including relevant meetings. He noted that the Parliament cannot
influence or amend budgets that are presented by cabinet; instead, it merely receives
and adopts such budget upon justification. Accordingly, the Speaker noted that the
Executive enjoys discretion in setting the priorities for the budget.
153.
In response to a query from the delegation on the role of Parliament in ensuring
respect for the Bill of Rights enshrined in the Constitution, the speaker noted that
lack of knowledge on the part of MPs on exercising their mandate means that MPs
do not raise motions for discussion regarding human rights issues, and that without
the motions being raised, Parliament cannot follow up on the rights enshrined in the
Constitution. However, he noted that members of Parliament consult regularly with
their respective constituencies.
154.
Regarding the impact of the political party representation, the Speaker observed that
political parties are not necessary for parliamentary effectiveness, and that if
30
members of are sensitized on their oversight role, they can effectively carry out their
mandate even within the framework of the current Constitution of Swaziland; and
members can better lobby one another, rally around particular issues without the
constraints of party lines.
155.
On the Public Service Guidelines, after noting that it was necessitated by the need to
ensure equitable access during the 2013 elections, the Speaker noted that the
application of the Guidelines should have stopped. He further noted that the matter
was still being discussed in Parliament, and also that he was not aware that any
journalist had been arrested for speaking to any Member of Parliament. He also
reiterated the importance of journalists doing their work with integrity and being
non-partisan.
156.
On the reporting lines of the SCHRPA and the EBC, it was learned that the two
bodies do not have direct access to Parliament. Instead, their reports are combined
and submitted through the Ministry of Justice. Given the provisions of the
Constitution providing for direct reporting, it was observed that enabling these
bodies to present their reports directly serves as facet of guaranteeing their
independence.
Meeting with NGOs, facilitated by the Co-ordinating Assembly of Non-Governmental
Organizations (CANGO)
157.
158.
159.
The delegation met with representatives of diverse NGOs based in Swaziland, in a
meeting, which was facilitated by the Co-ordinating Assembly of NonGovernmental Organizations (CANGO – Swaziland).
Representatives of various NGOs present in the meeting briefed the delegation on
various human rights issues in the country. It was pointed out that non-compliance
with the various positive and progressive provisions have rendered the Constitution
ineffective. Various concerns were raised with respect to freedom of association
notably restrictions around registration of trade unions and their participation in
political activism. More specifically, it was noted that the Public Service Bill,
proposed by the Ministry of Public Service, would have a serious impact on the
public sector, given that it would effectively curtail the rights of civil servants to
participate in political activism and/or speak on issues around socio-economic
political justice matters. Participants also observed that the exclusion of political
party platform as a basis for contesting election has put limitation on the scope of
citizens’ freedom of association. They contested that this position on political parties
reflected the will of the people.
Representatives at the meeting also informed about the delegation of a pending bill
on Chiefs, which would give more power to Chiefs, in addition to giving them
immunity from lawsuits, noting that if this law was passed, it would have the effect
of preventing access to legal redress in situations involving the Chiefs.
31
160.
The delegation was informed that there are a number of issues affecting the
enjoyment of women rights in Swaziland. Apart from the lack of a definitive and
comprehensive law to cater for women rights issues, women are affected by the lack
of coherence between existing law, customs, and the comments or edicts of the King.
An example was given of a comment of the King on bride price, in which he stated
that this could not be given back. It was noted that the effect of this statement is that
it would be impossible to annul customary marriages, even after going through the
customary laid down procedures. Other issues highlighted include discrimination
against women in Government and Public Offices despite requisite qualification, the
lack of representation of women in Parliament and judiciary, and the failure of
Parliament to appoint 4 women into Parliament in accordance with the provisions of
the Constitution on affirmative action/gender parity, customary based exclusion of
women from owning land by themselves and lack of parity in marriage.
Representatives of women groups also pointed out the lack of progress the Sexual
Offences and Domestic Violence Bill despite having been before Parliament since 10
years ago. Regarding sexual health rights, it was reported that, in spite of
Constitutional provisions, which permit abortion in certain circumstances, abortion
is criminalized in the country and women are being imprisoned for committing
abortion. It was further reported that half of the women in Mawelawela Correctional
facility were in prison for the crime of procuring an abortion.
161.
On freedom of expression, the delegation learnt that the media is controlled by the
Government and there is an absence of alternative voices. Regarding the Sedition
and Subversive Activities Act, participants informed the delegation that the
sentences prescribed under this law are very severe, and that when a person is
charged under this Act, the accused has the onus of proving that the intention was
not to be seditious.
162.
As regards prison visits and political prisoners, it was pointed out that detainees
and are not allowed prison visits, and also that when there are deaths in custody,
there are no reports of inquests conducted.
163.
The delegation was also informed about the state of children’s rights, with NGO
representatives in the meeting noting that the Child’s Protection Act is not
implemented in practice, and the National Children’s Coordinating Council,
established in the Office of the Deputy Prime Minister, had over time been
disbanded. It was further noted that children with disabilities are not sufficiently
protected by the Government, and that there are incidences of violence against
children, abandonment of children, and children being sent to juvenile centres
where they mix with children in conflict with the law.
164.
Regarding social and economic rights, the delegation was informed that 60% of the
population are living in poverty. The delegation learnt that the country’s economy is
essentially driven by agriculture, and that in light of recent drought in the country, it
was faced with socio-economic crisis. It was further noted that, whereas the climate
change challenge was declared a national emergency, not enough was being done to
address the impact on the lives of ordinary citizens, especially vulnerable groups.
The delegation also learnt that the budget which was recently presented to
Parliament did not speak to the concerns of Swazi citizens, as for example,
32
vulnerable groups such as the elderly were allotted paltry sums, whereas the
allocation of funds was heavily linked to projects of the monarchy. Regarding health
rights, the delegation learnt that the Government is committed to the provision of
medical care, including ARVs for persons living with HIV/AIDS, but lack of
adequate funding means that medical facilities lacked the necessary infrastructure
and basic medicine such as insulin, including inadequate admission facilities in
Mbabane hospital.
165.
Regarding the SCHRPA, it was noted that while it was established in 2009, there
were no staff employed until 2015. It was further noted that the Government of
Swaziland has a history of interference with oversight bodies, and that for effective
functioning of the SCHRPA, there is a need for an enabling law, as well as adequate
financial allocation for the discharge of its mandate.
166.
With respect to education, it was noted that in spite of universal primary education,
some schools demand money from parents, as a result of poor allocation of funds
from the Government. The plight of pregnant girls was also highlighted in that they
are not allowed to attend school while pregnant, and are thus denied the right to
receive education.
167.
Some additional issues which were mentioned include the following: inadequate
access to justice; the need for a legal aid system; attacks on human rights defenders;
reports of deaths in custody; forced sterilization of women as a result of their HIV
status; CSOs’ engagement with the Commission including through applying for
Observer status with the Commission.
Courtesy call on the Vice Chancellor of the University of Swaziland
168.
The delegation took the opportunity of the mission in the country to pay a courtesy
call on the Vice Chancellor of the University of Swaziland, Professor Cisco
Magagula and hold exchanges with Faculty and students on human rights
education and the role of the African Commission. A number of issues were raised
for discussion, including: the extent to which the Faculty of Law, as the centre of
learning, is involved in law reform and policy formulation, in shaping public
opinions and the human rights discourse; the incorporation of human rights into the
curriculum of the faculty of law, and the extent of teaching and research in human
rights law; the extent to which the jurisprudence of the Commission is incorporated
in the Law school’s curriculum; and the views of the Faculty of Law on issues such
as separation of powers and the rights to freedom of association and assembly in
Swaziland.
169.
The delegation was informed that the University engages in research on various
topics, on the basis of what is relevant and would benefit society, including in
providing expertise to governance and policy related issues where requested, such
as contributing to the curriculum for the Police College training in human rights and
constitutional issues, participating in the processes leading up to the Children’s
Protection and Welfare Act (2012), and participating in a research project on rule of
law and justice in Swaziland. It was also noted that the Police wanted to go into
partnership with the University, to professionalize the force. Law students are also
33
given courses on constitutional law, international law and international human
rights and participate in the annual All-African Moot Court Competition. .
170.
Some lamented the academic space is shrinking, and academics engaged in issues of
human rights do not have an enabling environment, as a result of which such
academicians exercise self-censorship. It was observed that while the public sector
has not quite engaged with academic experts, the academia is mindful of its
obligation to intervene where value could be added, but however that there are fears
of getting into trouble.
Meeting with the Director of Management Services in the Ministry of Public Service
171.
Recalling its meeting with the Chief Justice, the delegation informed the Director of
Management Services, in the Ministry of Public Service, Mr. Maxwell Masuku that
the lack of Judges in the Judiciary has reportedly resulted in a large backlog of cases
and lack of access to justice in the country, and in this regard, recounted the need
expressed by the Chief Justice for the urgent recruitment of the following judges: 5
High Court judges; 7 Supreme Court judges; 3 Industrial Court judges; 5 judges for
the Industrial Court of Appeal; and 22 Magistrates.
172.
Although the Director recognized the need for new judges and submitted requests
accordingly, he noted that the Ministry allocates new positions once during a fiscal
year on the basis of the budget allocated to it, and that a decision had been taken by
the Cabinet was that no new positions would be created in any of the Ministries.
Following a meeting with the Chief Justice in which prioritizing the most urgent
needs in the Judiciary was discussed, and also that, in order to mitigate the backlog
of cases in the Judiciary, the Chief Justice had requested the appointment of judges
on a temporary basis. Accordingly he reported that by 01 April 2016, half the
number of positions required in the Judiciary would be filled with temporary
judges. With regard to the lack of courtrooms, the Director noted that this falls
within the portfolio of the Ministry of Public Works and Transport, which is
responsible for the construction of the additional Court rooms required by the
Judiciary.
173.
In conclusion, the Director noted that the expected budget for the Ministry had
significantly declined, and accordingly the unfilled positions in the Judiciary, the
SCHRPA and in the various Ministries, was not deliberate, but was rather as a result
of the current financial situation in the country.
Meeting with officials from the National Emergency Response Council on HIV/AIDS
(NERCHA)
174.
The delegation visited the offices of the National Emergency Response Council on
HIV/AIDS (NERCHA), where they were received and briefed by NERCHA’s
Executive Director, Mr. Khanya Mabuza, and members of the Senior Management
team.
175.
The delegation was informed that NERCHA was created to coordinate and facilitate
the national multi-sectoral HIV/AIDS response, in addition to overseeing the
34
implementation of the national strategic plans and frameworks for responding to the
pandemic. NERCHA was established through an act of Parliament, being the
National Emergency Response Council on HIV/AIDS Act No. 8/2003.
176.
Mr. Mabuza reported that the country has a prevalence rate of 26%, and in this
regard noted that many people are living long after being diagnosed with HIV,
which he credited to NERCHA’s programs, and the Government’s political will to
address the scourge. He reported that NERCHA’s programs from 2003 to 2005 had
focused on scaling up treatment, in order to address the high death rates, which
were observed in 2003. He also reported that NERCHA has had a very a good
success rate in addressing mother to child transmission, which has been scaled
down by 96%, while noting that this intervention has imposed a huge financial
burden on the health care system.
177.
However, Mr. Mabuza noted that one of the issues affecting the life expectancy of
people living with HIV is the high poverty rate in the country. Additionally, he
noted that there are still problems with new infections, noting that the driving forces
include: risky sexual behaviour; gender-based violence; failure of most men to test
even though they are high transmitters; inter-generational sexual intercourse; and
transactional sex on account of economic inequalities. Furthermore, he reported that
there is a high transmission rate from men to young girls, and that these men, who
typically do not get tested, are having unprotected sex with young girls.
Accordingly, he noted that NERCHA has observed increasing infections of young
women, aged between 15 and 24 years old, and noted that there are economic factors
which contribute to the rise in infection rates of young girls, given that the infection
rates are rising among girls from poorer income families, driven by transactional
sex. On the other hand, he noted that boys aged 18 years old and below, have a 0%
infection rate.
178.
Additionally, Mr. Mabuza reported that women are also disproportionately affected,
with a higher percentage of infection of 4.1%, and in this regard, noted the need to
provide economic opportunities for women in the country, and address the
economic dimension and drivers of the scourge, especially its prevalence amongst
women and girls. He also highlighted the prevalence of gender-based violence;
reporting that 1 in 3 women in the country, experience sexual violence before they
turn 18 years old.
179.
Mr. Mabuza noted that there is a low rate of participation of women and young girls
in NERCHA’s programs, and further observed that if the situation is not addressed,
infection rates would continue to rise as a result of transactional sex. In this regard,
he reported that NERCHA has invested in programs targeting young people, which
it is hoped would have an effect in the coming 10 years. He observed that youths
make up over 60% of the population of Swaziland, and that accordingly, the
Government’s investments and priorities in HIV/AIDS interventions are tailored
along this trend of the epidemic.
180.
In addressing the enquiries by the delegation, the delegation was informed that:
there is an enabling legal and policy framework to address HIV/AIDS in the
country, including Constitutional provisions on equality and non-discrimination,
and the HIV/AIDS Policy (2006), but however that this framework has some
35
limitations, as for example, HIV programs in correctional facilities do not include the
distribution of condoms; stigma and discrimination against persons living with HIV
(PLHIV) is a challenge and sometimes results in the suicide of PLHIVs, and in this
regard NERCHA is working with the network of PLHIVs on addressing stigma in
the workplace and other places in the community; NERCHA is working with
commercial sex workers and LGBTI, specifically men having sex with men (MSM),
in order to address the prevalence rates among them, and also to ensure provision of
care to these vulnerable groups; NERCHA had prepared a Legal Assessment
Environment Report, due to be presented to the Government, which called for a
review of Government programs to include LGBTI persons; and there are sporadic
reports of forced sterilization of HIV positive women, in respect of which the
Ministry of Health needs to address the issue in a more concerted manner.
181.
Also, upon enquiry as to whether polygamy is a driver of HIV/AIDS in the country,
the delegation learnt that there is less than 2% infection among men in polygamous
marriages. However, it was observed that more needs to be done to get men to test
for HIV, and if required, to start treatment. In this regard, Mr. Mabuza observed that
there is inconsistent use of condoms by men who are not aware of their status,
which invariably results in the spread of the disease. He further noted that,
approximately 60 – 70% of men are uncircumcised, as this is not part of the Swazi
culture, and that this further contributes to the spread of the disease.
182.
In closing, it was noted that NERCHA is committed to ensuring that the
Government’s goal of attaining 0% prevalence by 2022, is achieved.
Meeting with the Under Secretary in the Ministry of Labour and Social Security
183.
The delegation held a meeting with the Under Secretary in Ministry of Labour and
Social Security, Mr. Norman Gamedze, and two senior officials from the Ministry.
184.
The Ministry was established in 2008, following a realignment of portfolios by the
Government. Accordingly, the Ministry’s responsibilities were drawn from a
number of Ministries, such as Labour Administration and Industrial Relations, from
the now defunct Ministry of Enterprise and Employment, the National Human
Resources Planning and Development, from the Ministry of Public Service,
Scholarships Administration from the Ministry of Education. The Ministry
endeavours to improve the standard of living through the provision of decent work
and social protection, and its core activities revolve around improving economic
growth through: ensuring an educated and skills nation; social dialogue;
harmonious industrial relations; protection and empowerment of vulnerable groups
through social security; and improved service delivery through decentralization of
most services. It operates through a tripartite structure comprising: the Department
of Labour; the Department of National Employment Services; and the Department of
Social Security. It also has: a National Steering Committee on Social Dialogue; a
Labour Advisory Board; a Conciliation, Me and Arbitration Commission; a National
Provident Fund; and an Essential Services Commission.
185.
In response to queries from the delegation, Mr. Gamedze noted, with regards to
applications for the registration of trade unions, that they were all registered, with
the exception of Amalgamated Trade Union of Swaziland (ATUSWA), which
36
required additional information of general nature, and would be duly registered
once the requested information was provided.
186.
With regard to social security, the delegation was informed that the Social Security
Board managed the Provident Fund, noting that the ILO had provided assistance in
establishing this Fund. With regards to the legal framework, it was noted that the
Ministry intended to establish a workman’s compensation fund through the
Workman’s Compensation Insurance Fund Bill, and furthermore that the Attorney
General’s office was in the process of drafting a National Pension Fund Bill, which
would covert the providence fund to a pension fund.
187.
In response to a question from the delegation regarding the right to strike, Mr.
Gamedze noted that this right was protected in the country, as provided in the
Industrial Relations Act; albeit subject to certain procedural requirements, which are
not heavy, and not meant to frustrate. It was noted that there many strikes and
protests in the country, in practices, and that any strike organized must relate to
terms and conditions of employment, Government policy and socio-economic issues
relating to workers’ rights, and not on civil or political related issues. Additionally, it
was noted that the law does not provide for sympathy strikes, but that sympathy
demonstrations are permitted, picketing on protected strikes. Furthermore, the
delegation learnt that the Cabinet was reviewing the Public Order Act, with the
assistance of the International Labour Organization (ILO), to effectively address
issues related to public order and strikes.
188.
As regards child labour, the delegation was informed that the Ministry’s National
Plan of Action contains provisions to address child labour, but however that this
issue is not prevalent in the country.
189.
In closing the delegation learnt that the key contentions between the Government
and trade unions pertain to police brutality, freedom of association, and registration
issues. It was also noted that codes-of-conduct were being drafted for all
stakeholders.
Meeting with representatives of Trade Unions
190.
Following the brief meeting with officials of the Ministry of Labour, the delegation
met with a number of representatives of Trade Unions in Swaziland, in a meeting
which was facilitated by the Ministry.
191.
Amongst others, the delegation requested information on the challenges faced by
the Trade Unions with regard to freedom of association and the right to unionize,
freedom of assembly, registration, minimum wage, the right to strike, and the
regulation of vulnerable sectors such as domestic workers and child workers.
192.
In response, the delegation was informed that registration of trade unions in
Swaziland had largely been resolved, following the amendment of the Industrial
Relations Act (2014). However, it was reported that there are outstanding concerns,
as for instance no time frame is provided for the registration of trade unions after
submitting an application, as a result of which registration is at the discretion of the
Minister of Labour.
37
193.
Another challenge that was noted is the lack of responses from the Ministry of
Labour, regarding reported complaints of human rights violations, and in this
regard, it was reported that the Ministry had only reacted to 2 out of 20 cases that
had been referred to it in accordance with the Employment Act.
194.
On workers’ wages, the delegation learnt about the situation of support staff
employed in national schools, who had not been paid their salaries in over 5 months.
In this regard, it was noted that when the Government initiated universal primary
education, schools began requiring parents of students to pay top up fees, because
the amount of money allocated to the schools was too little, and that these top up
fees are then used to pay the support staff. In response to complaints about this
incidence, the Ministry set up a task team to look into the matter, but the report of its
findings was not made public.
195.
With regard to domestic workers, the trade union representatives reported that
these are the most vulnerable in the employment sector, while the representative of
the Ministry of Labour present at the meeting noted the difficulty in monitoring and
assessing the situation of domestic workers in all households in the country, as this
would entail invasion of privacy, but indicated on a positive note that there is a
proposal for domestic workers to benefit from the Swazi Provident Fund, which is
yet to be implemented.
196.
On freedom of expression, it was observed that this is curtailed primarily though the
Public Order Act, and that this law would need to be amended in order to address
restrictions on freedom of expression in Swaziland.
197.
The meeting also observed that the Trade Unions require cooperating partners, to
build their capacity, so that they would be better positioned when negotiating
collective bargaining agreements and be capacitated to lobby Members of
Parliament on crucial issues.
198.
Regarding the registration of Trade Unions, the Trade Union representatives noted
that ATUSWA was awaiting its registration, and in this regard, the representative
from the Ministry of Labour noted that 50% of the registration issues on the
application from ATUSWA had been addressed, but that there remained a number
of issues to be finalized on the application.
199.
A final issue noted was the Public Services Bill, which seeks to prevent public
workers from being active in trade unions and organisations, which the Government
considers to be political. The Bill makes it an offence for a public officer to hold an
office in or be visibly associated with a political formation or organisation. In this
regard, the representative from the Ministry of Labour noted that the Bill was still
being discussed in the Portfolio Committee. The delegation also learnt that the
Employment Act was being reviewed to ensure that the law met international
standards for the protection of migrants.
Meeting with the Law Society of Swaziland
38
200.
The delegation also met with the Treasurer of the Law Society of Swaziland, Mr.
Lucky Howe, and Mr. Nkosiwathi Manzini, a member of the law society. The
discussions centred around access to justice, law reforms, separation of powers,
freedom of association and freedom of expression in the country.
201.
During the discussions, the delegation was informed of the challenges being faced
by the Judiciary. While it was noted that indeed, the Judiciary is faced with an acute
shortage of facilities and resources, including the shortage of magistrates and
judges; lack of electricity in some courtrooms; lack of recording systems in some
courtrooms; and inadequate furnishing and lack of security in the magistrate’s
chambers; very poor facilities for rural courts; it was observed that there was also
the problem of inadequate management of the available resources, Judges and staff
of the Judiciary. An example was given of litigants going to Court expecting to
receive a judgment, but finding the courtrooms empty because the Judges did not
sit.
202.
Additional issues, which were noted as regards the Judiciary, are the lack of
objectivity in the dispensation of justice, lack of access to court’s records, failure to
allocate matters to the right judges, poor governance and inefficiency.
203.
On legal aid, it was reported that a draft Legal Aid Bill had been developed
following a UN led process, but that this law had not yet come into force. The
delegation also learnt that the Law Society was not appropriately consulted in the
drafting of this Bill, and that while there is no substantive legal framework for legal
aid yet, about 40% of the work done by lawyers in Swaziland is for free, even
though these efforts are barely acknowledged. It was noted that the pro deo counsel
currently offered by the State in capital cases is grossly under-paid, but yet Swazi
lawyers provide these services most diligently. The inadequate capacity of the
Government to appropriately finance the legal aid scheme when it comes into force
was also highlighted.
204.
Concerning the issue of separation of powers, the view was expressed that this can
never be the reality in the country, given that the ultimate authority belongs to the
King. An example was given of the vote of no confidence that was passed against
the Prime Minister, but reversed by the King.
205.
Finally, the meeting discussed the issue of political parties, in respect of which it was
noted that during a Sibaya gathering in 2012, citizens expressed their interest in
multi-party democracy, but however that the Report of the meeting was not released
to the general public. Accordingly, the representatives of the Law Society noted that
they had taken the matter to Court, seeking the release of the 2012 Sibaya report.
Meeting with the Minister of Natural Resources and Energy
206.
The delegation also held a meeting with the Minister of Natural Resources and
Energy, Honourable Senator Jabulile Mashwama, and senior officials in the
Ministry.
207.
After a briefing on the mandates and works of the Commission, in particular, its
special mechanism on Extractive Industries, Environment and Human Rights
39
Violations, the delegation sought the following responses and clarifications from the
Minister: the types of natural resources in Swaziland; the policies and legal
instruments in place for purposes of transparent and beneficial negotiation of
concessions in the extractive industries; the process of negotiation of concessions
and the extent of its transparency; consultation and participation of members of
affected communities in concession negotiation; procedures for expropriation, and
guarantees provided in law, including for compensation.
208.
In response, the delegation was informed that Swaziland engages in the mining of
gold and coal, while it also has diamond, asbestos and iron ore, which are yet to be
explored. The delegation learnt that Swaziland is taking measures to ensure that the
revenues from the oil and gas extracted in the country are used for the benefits of all
the citizens, and in this regard, it has put in place laws and policies to regulate the
industry, including the Constitution and the Mines and Minerals Act (No. 4 of 2011).
The delegation also learnt that the Constitution sets the tone for the exploration of
minerals in the country, stipulating amongst others, ownership of minerals, and the
right to property and compensation in case of expropriation. On its part, the Mines
and Minerals Act (No. 4 of 2011) was reported as incorporating all beneficiation
principles and best practices; however, it was noted that the subsidiary legislation to
the Act was pending. It was also reported that Swaziland had been admitted as a
full participant of the Kimberley Process family, since 2011.
209.
It was also reported that a multi-stakeholders Minerals Management Board (the
Board) had been set up, which appraises applications for mineral concessions, and
reports directly to Government. The Board is established in terms of the
Constitution, and consists of the Commissioner of Mines, mine engineer, economist,
legal practitioner and three other persons all of whom, including Chairperson, are
appointed by the King on the advice of the Minister responsible for minerals. The
Commissioner of Mines is the only legally authorized person in terms of the
Constitution to administer the provisions of all mining legislation, and is the
authority who issues mining licenses, and the overall administrator of all mines in
the country. A person who seeks to acquire a mineral right would apply to the
Commissioner of Mines, who will then present the application to the Board for
consideration, for appraisal, following which recommends the most comprehensive
project proposal – the for consideration for a grant of a mining right.
210.
Concerning prior consultation of affected communities, it was reported that this is
conducted by the Office of the Commissioner of Mines, in an open and transparent
matter, but that members of such communities are not represented in decisionmaking bodies regulating mining concession. It was also reported that prior
Environmental Impact Assessment and Comprehensive Mitigation Plans are
required to be developed in advance of mining projects, and that the relevant
reports are discussed in a fully open and transparent manner, with room for all
stakeholders to make their contribution. Furthermore, it was noted that these
assessments are conducted throughout all the phases of the mining concession, up to
closure.
211.
On land ownership and the impact of extractive industries, it was noted that while
individuals own land, they do not own the natural resources, which belong to the
whole nation. Accordingly, negotiations with individual landowners affected by
40
extractive industries are around land ownership/rights only. It was also noted that
there are instances where the natural resources are found not on individually owned
lands, but on Swazi nation lands, held by the King for the people. It was reported
that in all cases, fair compensation is paid, and due resettlement is made, and that
when a request is received for natural resources extraction, the land is re-zoned, and
the appropriate means for compensation is agreed and distributed to the affected
people.
212.
Concerning land ownership generally, the delegation learnt that, under the tinkundla
administration, the Chiefs allocate land to Swazi citizen. With regard to access to
land by women, it was reported that women can own land privately in their own
name; but require their spouse’s consent to dispose of land. Commonly owned
property also now reflects the names of both husband and wife and requires their
joint consent for disposal.
213.
On the distribution of the revenue from natural resources, it was reported that 25%
of these goes to the Swazi government, 25% to the King in trust for the people, and
50% to the mining company. Additionally, it was noted that the mining companies
have a legal obligation to invest in the local community where the resources are
being extracted, in projects which are responsive to the local population, and that for
this purpose, guidelines have been out in place and as well, the
companies/investors are required to submit quarterly reports to the Commissioner
of Mines. The Ministry of Natural Resources and Energy also submits quarterly
reports to Parliament on the concessions granted, licenses paid and revenues
received from the mining industry.
Meeting with the UN Resident Coordinator, United Nations Development Program
(UNDP)
214.
The delegation also met with the UN Resident Coordinator in Swaziland, Mr. Israel
Dessalegne. Mr. Dessalegne briefed the delegation on the work of the UNDP office
in the country, which includes human rights issues in the context of governance.
215.
He noted that UNDP’s programs include strengthening the capacity of key
institutions, for example strengthening oversight bodies such as the Parliament. In
this regard, he noted that UNDP was providing support to the Parliament in
drawing up a strategic plan, with capacity-building targets. He also noted that
UNDP is committed to assisting with the domestication of the conventions signed
by the Government but however noted that this process has proven to be quite
prolonged as a result of the system of Government, which combines modern and
traditional forms of governance. He further noted that, within the limits of its
mandate, UNDP provides support to CSOs in the country.
216.
With regards to the law reform process, Mr. Dessalegne noted that UNDP is always
ready to assist the Government.
217.
Mr. Dessalegne also noted that UNDP works very closely with the Judiciary. In this
regard, he reported that UNDP had assisted with the development of a case
management system, but however further noted that a systematic and
comprehensive analysis of the needs of the Judiciary was required, in order to
41
determine in which areas to provide assistance, and that this was being undertaken
by UNDP. He also noted that UNDP had faced some challenges dealing with the
previous Chief Justice, who was not responsive.
218.
In closing, Mr. Dessalegne noted that the political dynamics in the country and lack
of political will to take the necessary decisions often undermine capacity building
and other interventions, and he underscored the need for full commitment to the
implementation of requisite activities, and to also adopt a bottom-up approach in
dealing with issues.
Meeting with the Minister of Justice and Constitutional Affairs
219.
The delegation also held an additional meeting with H.E. Mr. Edgar Hillary, the
Minister of Justice and Constitutional Affairs, with senior officials in the Ministry in
attendance.
220.
In this meeting, the delegation gave preliminary observations on the mission. With
regards to issues related to the Ministry of Justice and Constitutional Affairs, the
delegation noted that the law reform process had been highlighted as an area of
concern, specifically with regards to the very slow process of reviewing laws which
are in conflict with the Constitution. An additional area of concern is the nonimplementation of the Constitution, including the appointment of unqualified
persons into constitutional positions, coupled with lack of due process in doing so,
contrary to the provisions of the Constitution. Furthermore, on the Constitution, the
need to fully operationalize the Constitution and its provisions was highlighted. On
the Judiciary, the shortage of Judges, the shortage of infrastructure and facilities
such as courtrooms and recording systems, in addition to the low budgetary
allocation to the Judiciary were also raised. Additionally, issues such as the
prolonged processes for the adoption of laws, training and professionalization of the
Police Force, and the separation of powers were raised.
221.
In response, it was acknowledged that the law reform process has indeed stalled and
is causing problems, and it was noted as a preliminary point, that the Parliament has
the duty to take the lead in the law reform process. Nonetheless, it was reported that
on the part of the Ministry, there were plans to set up a constitutional review
unit/law reform unit, which would be dedicated to the law reform process.
However, it was noted that there are not so many draft legislations because of the
few numbers of legal drafters in the Ministry, which has impacted the development
of requisite draft legislation.
222.
Regarding reports of delay by the Ministry in sending draft laws to Parliament, it
was noted that Parliament needs to prioritize bills, and to develop an annual
legislative program, in order to ensure that laws were adopted at a faster pace.
223.
Regarding the Judiciary, it was noted that the Government was in the process of
recruiting additional Judges, which would assist in reducing the backlog of cases. It
was further noted that the Government is committed to constructing new
42
courtrooms and providing adequate infrastructure and facilities for the Judiciary but
has been hindered by limited resources. In addition, it was observed that the Judges
on ground are not fully engaged as some of them are not fully committed to their
work and thus abscond from duty. Other issues highlighted in this regard are the
possibility of creating geographical divisions in the High Court to facilitate case
handling, as well as the recommendation by the World Bank to the Government to
cut down on wage bill, which impacts recruitment.
224.
On the procedure for appointment of Judges, it was noted that the JSC, which is
headed by the Chief Justice, had developed its own process for these appointments.
225.
Concerning the independence of the Judiciary, it was noted that this is
constitutionally guaranteed and entails both administrative and financial
independence. However, with regard to its budget, it was noted that this is
submitted by the Chief Justice to the Minister of Justice who presents it to
Parliament, since the Chief Justice does not appear before Parliament.
226.
Additional issues which were discussed included the following: transmission of
documents to and from the Commission, with a focal point in the Ministry of Justice
being proposed; the visit to the prisons, in respect of which the delegation made its
preliminary observations; the delegation commended the candidness of all the
stakeholders met; and it was proposed that the country could consider holding a
referendum on the issue of political parties, in order to settle the matter definitively.
227.
In closing, the delegation thanked the Minister of Justice and Constitutional Affairs
for facilitating the various meetings which had been held, and underscored the
importance of submitting Periodic Reports, in accordance with obligations under the
African Charter and the Maputo Protocol.
Meeting with the Ambassador of the European Union Delegation to the Kingdom of
Swaziland
228.
The delegation also held a brief meeting with the European Union Ambassador to
Swaziland, Mr Nicola Bellomo. During this meeting, Mr. Bellomo raised a number
of issues of concern. Regarding pending legislation, he noted that the Sexual
Offences and Domestic Violence Bill does not have provisions criminalizing marital
rape and further noted the lack of progress on amending the Public Order Act and
the Suppression of Terrorism Act, which both have provisions that limit human
rights. Additionally, he noted with concern the provisions of the Public Services bill,
which would have the effect of limiting the rights of civil servants and also raised
the issue of the lack of representation of women in the current Parliament and the
failure to implement the constitutional.
229.
On the work on the work of the EU delegation in the country, Mr. Bellomo noted
that the EU office had supported the UPR process and had also submitted a shadow
report. He also indicated that the EU was exploring the potentials for collaboration
between Government and non-State actors.
230.
Additionally, Mr. Bellomo noted the untapped renewable energy potential in the
country, which could increase domestic power generation. In this regard, he
43
observed the need for new measures specifically geared towards encouraging the
sugar industry to invest in energy-efficient machinery and equipment to boost
bagasse-based electricity production.
Exit briefing with the Prime Minister and thereafter a press Conference
231.
On the last day of the Mission, the delegation attended an exit briefing with the
Prime Minister, which was also attended by the Minister of Justice and
Constitutional Affairs, the Chairperson of the SCHPRA, the Director of Public
Prosecutions, senior officials in the Prime Minister’s Office and the office Minister of
Justice, as well as members of the media from the national broadcasting television
station.
232.
The delegation provided a preliminary briefing on its observations and findings
from the Mission and took the opportunity to thank the Prime Minister and the
Ministry of Justice for facilitating access to the various stakeholders, and to
commend the open and candid manner in which the various meetings with
stakeholders were conducted. On his part, the Prime Minister thanked the
delegation for accepting the invitation to undertake the Mission to make an
assessment of the state of human rights in Swaziland and expressed gratitude for the
feedback on findings and experiences. He reiterated the commitment of the
Government of Swaziland to the respect of the African Charter, and particularly to
its State-reporting obligation.
233.
On some of the issues raised during this meeting, the Prime Minister sought the
advice of the Delegation. Most notably, he noted that on the issues facing the
judiciary the government faced a dilemma as reforms it initiates are seen as breach
of the independence of the judiciary. The delegation observed that one option for
achieving judicial reform without charge of political interference was the use of an
independent commission that has the participation of international experts.
234.
Lastly, the delegation held a press conference, which was attended by journalists
from both the print and electronic media. The head of the delegation read a press
statement, which contained the preliminary assessment of the mission and
highlighted some areas of concern and recommendations. This was followed by a
question-and-answer session with the media, where the delegation provided
additional information in response to the questions, which were asked. The head of
the delegation also conducted a number of interviews with some members of the
press in attendance.
VI.
OBSERVATIONS AND ANALYSIS
235.
This section of the Report provides the general observations and findings of the
Promotion Mission based on the visits and information gathered from the meetings
and discussions with the different stakeholders.
236.
The mission lasted for five days during which the delegation visited the capital city,
in addition to visiting correctional facilities in Manzini. During the mission, the
delegation had the opportunity to meet and interact with a cross-section of the
relevant stakeholders working in the field of human rights.
44
237.
The Mission took place under excellent conditions and enjoyed the full support of
the Ministry of Justice and Constitutional Affairs which ensured that all the
scheduled meetings and visits were carried out, to the satisfaction of the delegation.
The delegation is therefore satisfied that it met a wide segment of relevant
stakeholders, which gave it a general idea about the human rights situation in the
country and which forms the basis of the following observations.
POSITIVE ASPECTS
238.
The Commission notes and appreciates the following as positive factors in the
promotion and protection of human rights in Swaziland:
i.
The authorization granted to the Commission to undertake the
Promotion Mission, indicating the Government’s willingness to
cooperate with the Commission in addressing human rights issues in the
country;
ii.
Notes the opportunities presented by the Bill of Rights and other
progressive provisions of the Constitution (2005), for the promotion and
protection of human rights in the country;
iii.
Commends the ratification of the Maputo Protocol on 05 October 2012;
iv.
Further commends the establishment and operationalization of the
Swaziland
Commission
on
Human
Rights
and
Public
Administration/Integrity (SCHRPA);
v.
Welcomes the fact that the death penalty has not been implemented
since 1982, in addition to the commutation of a number of death
sentences to life in prison;
vi.
Notes the efforts made by the Swazi Government to enhance the proper
functioning of the Judiciary;
vii. Applauds to efforts undertaken to increase the number of women in the
Police force;
viii. Commends the use of alternative sentencing for first and second time
offenders;
ix.
Notes with appreciation the resettlement program for previous
offenders;
x.
Commends the incorporation of human rights in the training of the
Royal Swaziland Police, as well as efforts towards professionalizing the
force;
xi.
Notes with satisfaction the educational and other skills acquisition
facilities provided to prisoners;
45
xii. Further commends the adoption of the Children’s Protection and
Welfare Act (2012), which prohibits child marriage and urges the
Government to ensure the full and effective implementation thereof;
xiii. Welcomes the development of a policy towards ensuring universal free
primary education in the country;
xiv. Acknowledges the strategies and measures put in place by the
Government, in the fight against HIV/AIDs pandemic in the country;
xv. Notes the commitment to address the effects of climate change,
including through declaring climate change a national emergency.
AREAS OF CONCERN
239.
The delegation however noted and remains concerned about certain challenges
which inhibit the full realization and enjoyment of human rights by the citizens, and
in this regard wishes to highlight the following:
General
i.
The failure to domesticate regional and international human rights
instruments duly ratified by Swaziland, including the African Charter
and the Maputo Protocol;
ii.
The failure to submit periodic reports in fulfillment of its obligations
under the African Charter and the Maputo Protocol;
iii.
The delay in initiating a comprehensive law reform process, in order to
align all existing laws with the Constitution, and in with particular the
Bill of Rights;
iv.
The lack of full and effective implementation of some of the provisions
of the Constitution, including as regards appointment to constitutional
positions;
v.
The delay in enacting relevant enabling legislation to operationalize the
provisions of the Constitution with regards to the Swaziland
Commission on Human Rights and Public Administration/Integrity
(SCHRPA);
vi.
The delay in the appointment of the requisite staff to ensure the effective
functioning of the SCHRPA;
vii. Inadequate financial independence and funding for oversight
institutions, including the Commission on Human Rights and Public
Administration/Integrity and the Election and Boundaries Commission;
viii. The delay in enacting bills and policies which have the potential to
enhance the enjoyment of human rights, including the following:
46
-
the Human Rights Bill;
the Sexual Offences and Domestic Violence Bill;
the Access to Information Bill;
the Employment Bill;
the National Pension Bill;
the Workmen’s Compensation Insurance Fund Bill;
the Swaziland Broadcasting Bill;
the Swaziland Broadcasting Corporation Bill; and
the draft Land Policy;
ix.
The existence of draft laws which have the potential to inhibit the
enjoyment of human rights, such as the Public Service Bill and the
Electronic Evidence Bill;
x.
The lack of effective and adequate separation of powers, which hinders
the full and effective performance of the oversight role of Parliament and
the delivery of justice by the Judiciary;
Ratification and domestication of international instruments
xi. Swaziland has not ratified a number of important regional and
international instruments, as noted in Paragraph 40 of this Report;
Equality and non-discrimination
xii.
The failure to ensure gender parity in the Judiciary and Parliament,
including the non-implementation of Section 86 of the Constitution;
xiii.
The absence of a clear policy to address the obstacles which hinder
women’s election to positions in Parliament;
The death penalty
xiv. The continued existence of the death penalty in the statute books,
despite the fact that no death sentence has been carried out since 1983;
Torture
xv. The lack of concrete information on the process of the domestication of
CAT, in addition to the delay in enacting legislation which criminalizes
torture;
xvi. The absence of an independent mechanism to investigate allegations of
torture committed by the Police and Correction Officers;
xvii. The failure to incorporate the Robben Island Guidelines and the Luanda
Guidelines in the training manuals of the Police and Correction Officers;
Prisons
xviii. The overcrowding in the Matsapha prisons;
xix. The need to upgrade the detention facilities which were built during the
colonial era;
47
xx. The challenges faced by the Correctional Services, including shortage of
professionals, lack of operational equipment, budgetary constraints and
inadequate training;
xxi. The lack of categorization between rehabilitated and violent prisoners in
prison cells;
Access to and administration of justice
xxii. The acute shortage of Judges, inadequate facilities for the Judiciary and
alleged poor management, resulting in the backlog of cases and
inhibition of access to justice;
xxiii. The lack of funds for the training of Judges and other judicial officials;
xxiv. The provisions of the Bill on Chiefs protecting traditional Chiefs from
being taken to Court, which would have the effect of preventing access
to legal redress;
xxv. The absence of a national policy on legal aid;
Freedom of expression and access to information
xxvi. The continued existence in the statute books of several laws which
restrict the right to freedom of expression, such as the Suppression of
Terrorism of Act, in addition to laws criminalizing defamation and
sedition;
xxvii. The absence of legislation on access to information;
xxviii. The lack of full enjoyment of the right to freedom of expression, in
particular media freedom resulting in self-censorship by the media, and
also creating the potential for the inhibition of academic freedom;
xxix. The Public Service Broadcasting Guidelines which limit access to the
media and restrict the freedom of expression of Members of Parliament;
xxx.
The absence of a law that will facilitate the establishment of community
radio stations in Swaziland;
Freedom of Association and Assembly
xxxi. The lack of full enjoyment of the right to freedom of association, in
particular non-registration and participation of political parties;
xxxii. The absence of legislation governing registration, regulation, funding
and financial control of political parties;
xxxiii. The provisions of the draft Public Service bill which could curtail the
rights of freedom of association and assembly of civil servants;
48
Economic, social and cultural rights
xxxiv. The reports which indicate that 65% of the country lives in poverty;
xxxv. Reports of low budgetary allocation to health, resulting in the lack of
provisions in medical facilities, with reports of some lacking basic
medicine, and in some cases requiring citizens to purchase crucial
vaccinations;
xxxvi. Reported cases of criminalization of abortion, contrary to the provisions
of the Maputo Protocol and the provisions in the law which permit
abortion in certain circumstances;
xxxvii. The absence of a clear policy to ensure protection of the rights of
domestic workers;
xxxviii. Reported cases of forced eviction following the sale of land to private
owners or parastatals;
xxxix. While commending universal access to primary education, the
complaints on the poor allocation of funds from the Government, which
has resulted in reports of situations where parents are required to pay
top-up fees;
Women and Children
xl.
The failure to adequately address cultural practices which prevent
women’s access to land, or require a male family member for registration
of land;
xli.
The lack of a legal framework to promote gender equality and enhance
women’s rights, including on issues such as access to land and gender
equality in marriage;
xlii.
Reported cases of child marriage, regardless of the provisions of the
Children’s Protection and Welfare Act of 2012 which prohibits child
marriage;
xliii.
Reports of the disbandment of the National Children’s Coordinating
Council, established under the Office of the Deputy Prime Minister;
xliv.
The lack of a clear policy for the protection of children with disabilities;
Extractive Industries
xlv.
While commending the adoption of the Mines and Minerals Act (2013),
which aims at ensuring beneficiation of mineral resources to Swazi
citizens, the follow up legislation on the Act is still pending;
xlvi.
The failure to provide detailed information, as requested, regarding the
process of consultation and compensation of communities affected by
extractive industries;
HIV/AIDS
49
xlvii.
The need for a concerted policy to address involuntary sterilization of
women living with HIV/AIDS;
xlviii. The unprecedented rise in infections rates among young girls and
women, aged between 15 and 24 years old, despite measures put in place
by the Government;
xlix.
The lack of distribution of condoms in Correctional facilities in spite of
reported cases of sodomy, which leaves incarcerated people vulnerable
to HIV/AIDS and other sexually transmitted diseases;
l.
The need for a review of Government HIV programs to include LGBTI
persons, and specifically men having sex with men (MSM) where there
are reportedly high prevalence rates;
Human Rights Defenders
li.
Reports of restrictions imposed on civil society organizations and other
non-State actors involved in the promotion and protection of human
rights in Swaziland;
Protection of the rights of LGBTI persons
lii.
The absence of legislation or policy to ensure protection of LGBTI
persons from attacks, such as violence and abuse, committed on the
basis of their imputed or real sexual orientation or gender identities.
RECOMMENDATIONS
240.
The delegation however noted and remains concerned about certain challenges
which inhibit the full realization and enjoyment of human rights by the citizens, and
in this regard wishes to highlight the following:
General
i.
Domesticate all regional and international human rights instruments
which have been duly ratified by Swaziland, including the African
Charter and the Maputo Protocol;
ii.
Submit periodic reports in fulfilment of its obligations under the African
Charter and the Maputo Protocol;
iii.
Urgently expedite a comprehensive law reform process, in order to align
all existing laws with the Constitution, and in with particular the Bill of
Rights;
iv.
Ensure full and effective implementation of some of the provisions of the
Constitution, including as regards appointment to constitutional
positions;
v.
Enact all relevant enabling legislation to operationalize the provisions of
the Constitution with regards to the Swaziland Commission on Human
Rights and Public Administration/Integrity (SCHRPA);
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vi.
Ensure the appointment of the requisite staff to ensure the effective
functioning of the SCHRPA;
vii. Ensure the financial independence and funding for oversight
institutions, including the Commission on Human Rights and Public
Administration/Integrity and the Election and Boundaries Commission;
viii. Expedite the enactment of bills and policies which have the potential to
enhance the enjoyment of human rights, including those referenced
under the Areas of Concern;
ix.
Review all draft laws which have the potential to inhibit the enjoyment
of human rights, such as the Public Service Bill and the Electronic
Evidence Bill;
x.
Ensure effective and adequate separation of powers, in order to enable
the full and effective performance of the oversight role of Parliament and
the delivery of justice by the Judiciary;
Ratification and domestication of international instruments
xi. Ratify the regional and international instruments noted in Paragraph 40
of this Report, in addition to making the declaration under Article 34(6)
of the Court Protocol allowing individuals and NGOs to directly access
the African Court;
Equality and non-discrimination
xii.
Ensure gender parity in the Judiciary and Parliament, including by
implementing Section 86 of the Constitution;
xiii.
Develop a clear policy to address the obstacles which hinder women’s
election to positions in Parliament;
The death penalty
xiv. Repeal the provisions in the statute books which provide for the death
penalty, in addition to formalizing the moratorium on the death penalty, as
a step towards effective abolition of the death penalty;
Torture
xv. Ensure the domestication of CAT, in addition to enacting legislation
which criminalizes torture;
xvi. Establish an independent mechanism to investigate allegations of torture
committed by the Police and Correction Officers;
xvii. Incorporate the Robben Island Guidelines and the Luanda Guidelines in
the training manuals of the Police and Correction Officers;
Prisons
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xviii. Take measures to address overcrowding in the Matsapha prison,
including through adopting alternative sentencing policies and imposing
non-custodial sentences;
xix. Upgrade the detention facilities which were built during the colonial era;
xx. Ensure provision of adequate human and material resources to the
Correctional Services, and increase the training programs provided to
Correctional Officers;
xxi. Ensure categorization of prisoners so as to separate rehabilitated
prisoners from violent ones;
Access to and administration of justice
xxii. Address the acute shortage of Judges, in addition to the inadequate
facilities provided to the Judiciary;
xxiii. Ensure provision of adequate funds for the training of Judges and other
judicial officials;
xxiv. Amend the Bill on Chiefs, which seeks to protect Chiefs from being
taken to Court, in order to avoid restriction on access to justice;
xxv. Establish a comprehensive national policy on legal aid;
Freedom of expression and access to information
xxvi. Urgently amend all laws which restrict the right to freedom of
expression, including the Suppression of Terrorism of Act and the laws
which criminalize defamation and sedition;
xxvii. Adopt legislation on access to information;
xxviii. Ensure enjoyment of the right to freedom of expression, in particular
with regards to media freedom and academic freedom;
xxix. Amend the provisions of the Public Service Broadcasting Guidelines,
which have the effect of restricting the freedom of expression of
Members of Parliament;
xxx.
Enact a law regulating community radio stations in Swaziland;
Freedom of Association and Assembly
xxxi. Consider holding a referendum concerning the participation of political
parties, in order to address the issue definitively;
xxxii. Consider adoption of legislation governing registration, regulation,
funding and financial control of political parties;
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xxxiii. Amend the provisions of the draft Public Service bill which curtail the
rights of freedom of association and assembly of civil servants;
Economic, social and cultural rights
xxxiv. Take immediate and effective measures to combat poverty;
xxxv. Scale up efforts to ensure that medical facilities have the requisite
material resources, including basic medicine and vaccinations;
xxxvi. Adopt legislation or policy to ensure that abortion is not criminalized,
contrary to the provisions of the Maputo Protocol and the provisions in
the national law which permit abortion in certain circumstances;
xxxvii. Develop a clear policy to ensure protection of the rights of domestic
workers;
xxxviii. Investigate the reported cases of forced evictions, following the sale of
land to private owners or parastatals, and establish a clear policy on
addressing cases of forced evictions;
xxxix. Ensure adequate allocation of funds to schools in the National Budget, to
facilitate the universal primary education program;
Women and Children
xl.
Develop concrete policies to address cultural practices which prevent
women’s access to land, and conduct the necessary sensitization among
the general public;
xli.
Establish a legal framework to promote gender equality and enhance
women’s rights, including on issues such as access to land and gender
equality in marriage;
xlii.
Investigate the reported cases of child marriage which are in violation of
the Children’s Protection and Welfare Act of 2012, with the view to
bringing the perpetrators to justice;
xliii.
Take all necessary measures to re-establish the National Children’s
Coordinating Council, established in the Office of the Deputy Prime
Minister;
xliv.
Urgently develop a clear policy for the protection of children with
disabilities;
Extractive Industries
xlv.
Ensure adoption of the follow-up legislation to the Mines and Minerals
Act (2013);
HIV/AIDS
xlvi. Urgently develop a concerted policy to address involuntary sterilization
of women living with HIV/AIDS;
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xlvii.
Take all necessary measure to address the unprecedented rise in
infections rates among young girls and women, aged between 15 and 24
years old;
xlviii. Consider distribution of condoms in Correctional facilities, to ensure the
protection of incarcerated people vulnerable to HIV/AIDS and other
sexually transmitted diseases;
xlix.
Develop HIV/AIDS programs on LGBTI persons, and specifically men
having sex with men (MSM);
Human Rights Defenders
l.
Address the restrictions imposed on civil society organizations and other
non-State actors, which have the effect of restricting the freedom of
assembly and association and limit the operationalization of NGOs
Reports of involved in the promotion and protection of human rights in
Swaziland;
li.
Develop a legal framework for the protection of human rights defenders
in conformity with the UN Declaration on Human Rights Defenders
1998 and the Commission’s Resolutions on Human Rights Defenders
including ACHPR/Resolution 69 (XXXV) 04, ACHPR/Resolution 119
(XXXXII) 07, and ACHPR/Res.196 (L) 11;
Protection of the rights of LGBTI persons
lii.
Develop legislation or policy to ensure protection of LGBTI persons from
attacks, such as violence and abuse, committed based on their imputed
or real sexual orientation or gender identities.
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