CONSTITUTION MATTERS

I am disappointed, disheartened and disturbed that parliamentary appointments made by the Palace disregard explicit provisions of the country’s Constitution.

The terms are quite simple: among the members of the House of Assembly appointed by the King, at least half shall be women: among the 20 for the Senate, at least eight shall be women. Out of 10 appointees to the House, only three were women. In the Senate, only seven women were appointed. These shortfalls show that gender equity is not a priority for the country’s most senior officials, which means that it will not be a priority for many others in Eswatini’s male-dominated leadership.

This failure to abide by the terms of the Constitution has an impact not only on women’s economic, political and social participation, but on all aspects of the rule of law in this country.  If senior leaders do not need to follow the rules laid out and agreed to, why should anyone else in the country have to abide by any rules?
Failure to uphold the rule of law has ramifications far beyond Parliament.

As Eswatini faces a critical fiscal crisis, foreign investment will be an important component of a multifaceted economic recovery and growth strategy. Foreign investors are attracted to or deterred by a range of factors, but rule of law is a major consideration. If the Constitution itself is treated as an optional guide or a collection of recommendations, this provides little comfort to investors who seek assurance that contractual matters will be addressed transparently in accordance with the law.

Beyond the potential impact on foreign direct investment, violation of the basic framework of governance will likely also have an impact on prospective foreign assistance mechanisms from the United States.

I have heard emaSwati say that the country is implementing the Constitution in a deliberate manner. This seems to be code for: “We’ll do things on our own timeline. Mind your own business.” I can understand the need for some transition period, but that should imply the country is actively moving to align outdated laws and proclamations with the Constitution. Twelve years after the Constitution came into effect, there really should be no excuse for disregarding constitutionally stipulated minimums.

Following the elections and the repeat of a low number of women being elected to Parliament, emaSwati are again entering a round of questioning what went wrong. If you look beyond the usual blaming of women and the cultural signaling from the Palace, you will see that a major obstacle for women was and will continue to be finances for campaigns. Because women are as under-represented in the halls of economic power as they are in political spheres, they cannot draw on the same campaign resources as men.

Political parties, with their pooled financial resources, could help to start levelling the playing field for women.
Given the way in which the system is stacked against any liSwati challenging unconstitutional action, I recognize it is highly unlikely that there will be a correction to such phenomenal disregard for the Constitution during the tenure of the 11th Parliament. There are, however, steps the government could take to address other fundamental governance problems.

The most obvious step now would be to start with serious discussion of the political party situation. After three rounds of elections in which international observers have noted that restrictions on the participation of political parties represent a structural flaw in the elections processes, it would seem that government should take a hint that it is time to open this space. As a starting point, government needs to make an explicit statement to its own people concerning the 1973 Decree.

Former Minister of Justice Edgar Hillary went to Geneva in 2017 and told the United Nations Human Rights Commission that the 1973 Decree had been repealed by the Constitution. If this can be said to the outside world, why can it not be explicitly stated to the Swati nation? And if the Decree has truly been repealed, why do officials act as if it is still in place?

The Constitution’s language on ‘individual merit as a basis for election or appointment to public office’ does not actually exclude the possibility of political parties.

In the privacy of the voting booth, voters are free to choose whichever candidate they believe will do the best job, regardless of the parties to which the candidate and the voter belong.

But parties are critical to enabling individuals to join forces around common issues and pool their resources – intellectual, financial and organizational – to advance policies and candidates they believe will best serve their communities. In this moment of severe financial adversity, emaSwati need such collective community advocacy more than ever. It is time to start a dialogue on this issue and plot a way forward.

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