ARE HUMAN RIGHTS REALLY UN-SWATI?

The Eswatini Constitution was once hailed by the erstwhile Secretary General of the Commonwealth, Don McKinnon, as one of the best and most progressive. I do not recall his actual words but I remember that it was after the Commonwealth had provided technical support to the kingdom during the constitution-making process.

McKinnon, to the great delight of those who fancied the ‘new’ political order, and to the chagrin of those who were aggrieved by the entire process and its final product, McKinnon, on behalf of his employer, gave the document an emphatic thumbs-up. I want to imagine that one of his reasons was paragraph six of the preamble in the Constitution which reads: “Whereas it is necessary to protect and promote the fundamental rights and freedoms of all in our kingdom in terms of a constitution which binds the Legislature, the Executive the Judiciary and the other agencies of the government”.

How unequivocal can a nation be in expressing its desire to embrace human rights! The Constitution goes on, in chapter 111, to state what those rights are in the Bill of Rights. You may want to note that in this very paragraph, for emphasis, the word ‘all’ is in upper-case, and that is exactly how it appears in the document. This was by no means sheer embellishment by the draughtsmen but, in my educated opinion, was done for emphasis. The word ‘all’ denotes society in all its diverse glory; men, women and children, with no distinction to social status, education, wealth, sexual orientation, religious or political views.

I hasten now to get into the conceptual issues around human rights. Human rights can be rather elusive, especially in an African society like ours. My most simple and easy-to-understand definition of human rights is that they are fundamental entitlements which we are all entitled to by virtue of being human beings. Literally every word in this definition hits the spot.

 Translation

The vernacular translation I like to give to this concept is: “Emalungelo ngemagunya tsite labalulekile lesinawo ngekutsi nje sibantfu”. Now, several things can be gleaned from this definition. Firstly, it is that human rights are fundamental. The preamble of our Constitution also makes reference to that. The literal meaning of fundamental is that human rights are of central importance. That means they are not just there to rhetorise as a political tool but are at the root of human existence. They are entitlements in the sense that every human being has claim to them: An entitlement as opposed to a favour or reward. Human rights are inherent in every human being which means they exist in every person as permanent and essential.

The import of that, in our unique society, is that one does not have rights because he is man, woman, educated, wealthy, a prince, son or daughter of a chief or any of the statuses that we may think place us high in the social pecking order. Equality is central and a basis of human rights.

The country’s constitutional history will tell that us that Act 1 of 2005 is not the first document to contain a Bill of Rights. It is common cause that the independence constitution of 1968 did contain a Bill of Rights. Even before that, the kingdom, out of its own volition, joined other nation states in aligning itself with the Universal Declaration of Human Rights.  

This document, in the very first sentence of its preamble, states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The African Charter, which we are proud signatories of as a country, also reaffirms the kingdom’s commitment to human rights. It is important, at this stage to mention that reference, at this stage only restricted to what we have committed ourselves to on paper, not practice.

Purpose

The legal documents referred to above, both domestic and international, it must be emphasised, do not, confer human rights on people. Their purpose is only to state what the rights are and guarantee them. If, as I said earlier, we have rights only by virtue of being human beings, then no document can confer these rights per se, because, after all, we are born with them. In the case of Eswatini, we recognise this right even before a child is born, which explains why abortion remains criminalised. I would hope at this point, we can agree that human rights are not foreign or un-Swati. They have expression in our own autochthonous constitution and other international instruments which we are party to. We shall explore next week what the roles of government and us as ordinary citizens are in relation to human rights.

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