6 July 2018

Swaziland: Court Test for Swaziland Name Change

Photo: Cédric Duchamp/Flickr
(File photo).

The decision by King Mswati the absolute monarch to change the name of Swaziland to Eswatini is to be challenged in court.

The King made the pronouncement on his 50th birthday in April 2018 and later signed a legal notice.

The Institute for Democracy and Leadership (IDEAL) is challenging the notice in the Swazi High Court. The King is above the law and cannot be challenged so the respondents in the case are the Government and the Attorney General.

Human Rights Lawyer Thulani Maseko for IDEAL said the order contravened the Swaziland Constitution as no public discussions was held before the King's announcement.

The Times of Swaziland reported on Friday (6 July 2018) that in his founding affidavit Maseko said Section 58(1) of the constitution stated people had the right to be involved when the decision to change the name of the kingdom was taken.

The section provides that: 'Swaziland shall be a democratic country dedicated to principles which empower and encourage the active participation of all citizens at all levels in their own governance.'

The newspaper reported Maseko saying, 'The name change has constitutional implications in as much as the name is entrenched is Section 1 and is mentioned at least 200 times in other provisions of the Constitution.'

The King's unilateral decision to change the name of the kingdom demonstrates his power. Political parties are barred from taking part in elections and the monarch chooses the Prime Minister, government ministers and top judiciary.

The European Union Election Experts Mission (EEM), one of a number of international groups that monitored the conduct of Swaziland's last election in 2013, made much of how the kingdom's absolute monarchy undermined democracy.

In its report it stated, 'The King has absolute power and is considered to be above the law, including the Constitution, enjoying the power to assent laws and immunity from criminal proceedings. A bill shall not become law unless the King has assented to it, meaning that the parliament is unable to pass any law which the King is in disagreement with.

'The King will refer back the provisions he is not in agreement with, which makes the parliament and its elected chamber, the House of Assembly, ineffective, unable to achieve the objective a parliament is created for: to be the legislative branch of the state and maintain the government under scrutiny.'

The EEM went on to say the 'main principles for a democratic state are not in place' in Swaziland.

It stated, 'Elections are a mechanism for the popular control of government and ensure the government accountability to the people. The King appoints the Cabinet. A vote of no confidence in the prime minister and government from more than two-thirds of the members of the House, in October [2012], was easily reversed although the Constitution provides that in such cases the prime minister shall be removed from office.

'In this context, an analysis of the legal framework for elections seems quite a redundant exercise, as the main principles for a democratic state are not in place. Although the electoral legal framework contains the technical aspects required for the proper administration of elections, it does not conform to international principles for the conduct of democratic elections, as it does not respect one of the fundamental rights for participation -the freedom of association.'

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