CANGO UNDER ITS POVERTY DIALOGUE INITIAVIVE COMMONLY REFERRED TO AS
UMCHUMANISI STRATEGY PARTNERS WITH THE INTERNATIONAL DEVELOPMENT LAW ORGANISATION
(IDLO) IN FACILITATING DIALOGUE ON CONSTITUTIONALISM INTRODUCTION
1. Introduction
In a bid to influence a pro-poor policy environment and in light of the on going tension between the Judiciary and the Executive Arms of government, CANGO under its poverty initiative secured a strategic partnership with the International Development Organisation (IDLO) to facilitate space for dialogue on Comparative Constitutional Principles: State Organization and Structure. A one-day conference, which drew speakers from many sectors of Swazi society, including international was held at Mpopoma, near Malkerns on the 2nd May 2003 . The two organisations were assisted by Parliament, the Ministry of Justice and Constitutional Affairs, the Attorney Generals Office and the Deputy Prime Minister and this historic event was officially opened by the Minister for Justice and Constitutional Affairs.
2. Objective
The main objective of the workshop was to bring together different branches of the state organisation, traditional institutions and civil society to exchange ideas and identify different options that will help in reviewing and examining various sections and clauses of the forthcoming country's constitution.
3. The conference discussed the following:
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The international constitutional law on the three branches of government
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The role of Parliament in elections, initiation of bills, executive general bills, impeachment and procedures in sanctioning certain Executive actions
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The role of the Executive in government organisation, revenue generation, resource allocation and accountability
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The Judiciary: addressing the concept of independence, remuneration, tenure and role on reviewing legislation
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The role of civil society - workers, women, youth, employers, farmers, and professional associations within the state organisations.
4. Issues Discussed
4.1. Key note address by the United States Ambassador - His excellency J McGee
Mr Mcgee highlighted the importance of understanding constitutional principles in particular to a changing society like Swaziland. He then provided analysis of the concept of democracy which he acknowledged to be messy yet a best form of government as it provides it provides a majority of people a meaningful role in shaping direction of their lives. He also emphasized the need for separation of powers between the three arms of government: the Executive, Judiciary and Legislature as well the need for checks and balances.
4.2. Comparative Constitutional Principles by Dr Nahum
Dr Nahum, who has played a significant role in the development of constitutions in some African countries, stated that a constitution should be a basis for protection of human rights. He described the constitution as an instrument that that establishes the government and provides distribution of power of sovereign. He emphasising that it is an expression of the peoples wishes and aspirations and is a supreme law in any country. Enshrined in any constitution should be the protection of human rights and freedoms.
He also articulated that a constitution deals with structures of government: the Executive, Legislature and Judiciary: stating powers, limitations and relationships between these organs of state. The Judiciary, however, has a responsibility to interpret a constitution.
4.3. Organizational management - Dr Gule
Dr Gule, who is a Swazi working in South Africa, made a presentation on the working relationships of the various government structures and organs. He stated that for institutions to work efficiently must be have a vision, and he then highlighted eight principles that make institutions to work.
These are:
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Participation in decision making
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Consensus
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Accountability
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Transparency aided by clear rules and regulations which must not be applied arbitrarily
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Equity in service delivery
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Efficiency and effectiveness an service delivery
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Observation of the rule of law
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System of evaluation to determine successes and failures
4.4. Role of Parliament by President of Senate Mr. M Mswane, Legal Drafts officer, SJK Matsebula and I. Shabangu Former Minister of Finance and Mr S Mkhombe member of the Swazi National Council Standing Committee
The three presenters made presentation on the roles of Parliament.
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The President of Senate highlighted the following in his presentation:
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Parliament make laws according to the laid down legal procedures
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Consientise the Executive on the affairs of the country through questions and oral answer questions and motions for debates
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Ensures that government delivers on expectations of the nations
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Move a motion calling for Ministries to table certain bills
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Debate and approve Bills
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Mr Matsebula elaborated on how laws are made in Swaziland. In his presentation he stated that laws are made in three ways: A king could make a decree in the absence of Parliament, laws could be promulgated by Council of Ministers and the King in the absence of parliament (Kings Order in Council) and Act of Parliament where bills are debated and approved by Parliament and taken to the King for assent. He then stated that the law provides for private bills which is not practical due to high cost.
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Mr Shabangu stated that the three arms of government hold equal power and no structure should bully the other. However, the Executive tends to wield more power as it could influence dissolution of Parliament and also revocation of Judges appointment. This tends to make other structures to be intimidated. He also pointed out that the legislature sometimes does not apply its mind in matters of policy such as the Appropriation Bill. A Minister could bring a bill worth millions in just one page and the tendency is that Parliament approves without getting a detailed breakdown of allocations.
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Mr Mkhombe stated that the system of government in Swaziland is viewed as dual yet in his assessment was integrated yet not harmonized. He then presented an organisational structure depicting how the traditional system is integrated with the modern government, as the all converge in His Majesty the King who is refereed as an Ingwenyama if he acts in his traditional role. He observed some overlaps in structures of government such as the joint Council where the Executive and the Kings advisory council meet to resolve issues of policy. He emphasized that the tendency was that the structures tend not to agree, which invariably polarizes situation.
From the above analysis, it became clear that the separation of powers is not well entrenched in the country's constitutional framework and that the Executive tends to be viewed as more powerful than other arms of government. This needs to be rectified in the new constitution so that people could get value for their money in terms of government deliver of services.
4.5. The role of the Judiciary - Justice Nderi Nduma, P Shilubane - President of the Law Society and advocate Maziya
The three speakers highlighted the following:
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Justice Nduma emphasized the following points: He defined the Judiciary independence as an ability of courts to hear matters independently, competently and impartially and this should be ensured through the system of appointment, remuneration and security of tenure. He also stated that the law is not only to interprets statutes but also to breathe life on statutes if there are inconsistencies, ambiguities and other shortcomings. He also emphasized that the Judiciary entirely relies on the Executive for enforcement of its decisions.
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Mr Shilubane stressed that for independence of the Judiciary to be guaranteed , it must be assisted by an independent bar which is able speak freely and advise government on legal issues. He stated that customary law should not be used to undermine court decisions as it is provided in the law that if there is a clash, the other laws and natural justice prevails.
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Mr Maziya then elaborated the current Judiciary crisis, which he blamed on the government stance not to recognize the Judgements. He stated that King Sobhuza II used to respect judgements even if they were against him. He stated that there is no provision for the King, even though above the law, could interfere with Judgements as the Prime Minister had done.
4.6. The role of Civil Society - Mr J Sithole Secretary General of Trade Unions and Mr Mhawu Maziya - Federation of employers
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Mr Sithole stated that civil society has a social contract with government as it pays taxes to government and government in turn has to deliver services for the common good of all citizens. He emphasized the need for government to be sensitive on the needs and aspirations of the people. Thus the constitutions should articulate those aspirations.
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Mr Maziya also reiterated the fact that the business sector has a social contract with government. They pay taxes and are expected to be good citizens. This relationship is underpinned by the belief that the success of business translates to the success of a country. He then stated that the existence of a constitution, good governance, separation of powers and the rule of law minimizes investment risks and thus its absence undermine the investment climate.
5. Emerging issues
During the open discussions the following issues emerged:
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There is need to understand that democracy is not just about freedom but it entails that the government listen to the electorate
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People participation in the constitution making process is crucial
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The constitution should clarify separation of powers in all structures of government including the traditional ones
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Civic education is crucial for people to understand the government structure and be made aware on what to expert in a constitution.
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The current law making process is complex and confusion and there is need for its streamlining
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The voice of civil society and business must be heard by government to inform its policy agenda
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