8 October 2012

Swaziland: No-Confidence Vote Is Legal

Photo: Taurai Maduna/IRIN
King Mswati III: According to the Constitution, if the prime minister does not resign the king must sack either the government or the entire Parliament.


Barnabas Dlamini, the Prime Minister of Swaziland, is wrong to say the no-confidence vote passed against him and his government was illegal because it sought to force Cabinet to break the law.

Parliamentarians wanted him out of office because of the way the government forced the parastatal Swaziland Posts and Telecommunication Corporation (SPTC) to switch off its Fixedfones and data components which left thousands of people with expensive and useless gadgets.

Dlamini's case is that he and his ministers were obliged by the International Court of Arbitration (ICA) to make the move, implying that he did not want to do so, but his hand was forced.

Dlamini, in an interview with the Times Sunday newspaper in Swaziland, said to disobey the ICA would be to go against the rule of law. But this is not true, because despite its name the International Court of Arbitration is not a court: it is a forum where business enterprises that are in dispute can come together to settle differences in front of a panel of arbitrators.

Presumably, PM Dlamini knew this to be true since on its website the International Court of Arbitration states clearly that it exists 'to resolve disputes outside of formal litigation in court'.

Since it is not a court, any decision the ICA makes is not legally binding. Discussions at the ICA are confidential, but what seems to have happened was that the SPTC agreed after arbitration with its rivals the MTN cellphone company to close down its own services and allow MTN a free hand in the market. If the case for SPTC had been better argued, a different decision might have been reached and the closure of services avoided.

There are rules that can make an arbitration binding on the parties involved. These are in the New York Arbitration Convention, but Swaziland has not signed up to this, so there is nothing to force the government to comply with the ICA decision.

Since the Swazi House of Assembly passed a vote of no confidence in the Cabinet on Wednesday (3 October 2012), Dlamini has been refusing to abide by the Constitution and resign. His main reason has been that he had no choice but to close down the SPTC services because the ICA had ruled that it must and not to do so would be to break the law.

Dlamini is also claiming that the Swaziland High Court has ruled that SPTC must close the services, but in fact, the court has not delivered on the case.

Now, it is clear that there are no legal rulings, he has no excuse. Nor has King Mswati III, sub-Saharan Africa's last absolute monarch, who, if he is to abide by the Constitution should sack the government immediately.

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