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THROUGH GAZETTED BILL MPS CAN CHANGE KING’S POWERS

16/10/2022 16:24:00 Mfanukhona Nkambule

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MBABANE – Members of Parliament (MPs) can address His Majesty’s powers.

They can only amend the King’s powers through a Bill introduced at a joint sitting of Senate and House, with three-quarters of the membership passing it. After passing the Bill, the King is not allowed to assent it unless it has been taken to a referendum for voting. There are 103 parliamentarians, meaning 68 MPs would have to pass the Bill before referring it to the people. According to Section 245 of the supreme law, Parliament may amend ‘any provision of the Constitution’ by introduction of a Bill expressly providing that it shall be altered as proposed in that proposed legislation.

powers

However, it is provided in law that the Monarch’s powers should be treated as specially entrenched provisions. These are Sections 4, 5, 7 (2), 7 (3), 8(2), 9, 10 and 11. Specially entrenched clause or entrenched clause of basic law or Constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, referendum or the consent of the minority party in cases where there is partisan democracy. On Tuesday, the Times of Eswatini quoted Prince Mhlabuhlangene to have said that the “Monarch is a ‘no-go area’ for parliamentarians as their powers are limited to government matters.” Legal experts advised this newspaper that the chairman of the Elections and Boundaries Commission (EBC) meant the Monarch’s powers or prerogatives could not be addressed or altered, if not amended, through motions, speeches, oral questions, statements, point of privileges or point or clarifications or be criticised in the chambers in violation of the Constitution, which has prescribed procedure for MPs to raise royal issues.

immunity limited

The prince is said to have told chiefs at a meeting held at Pigg’s Peak Hotel and Casino that government was separate from the Monarch, with the authority of the MPs ending at government level. He reportedly pointed out that the lawmakers could say anything about government, but not the Monarch, as their immunity was limited. He also talked about certain treasonous statements. He said it was wrong of the MPs to use the forum in Parliament to criticise the King. In an interview yesterday, the prince said he was not individualising the issue but was simply referring to the institution of the monarchy. “I was also talking about the institution called government, not individuals in government,” he said. Prince Mhlabuhlangane was talking about the Monarch with a ‘y’ (monarchy), referring to its institution, not necessarily delving into the King.

He said the institution of the monarchy is not the King, but His Majesty is part of the institution of the monarchy, which he also happens to lead. The EBC chairman advised emaSwati to draw a line of demarcation between popular sovereignty (mostly republics) and monarchical sovereignty (kingdoms). He said these two sovereignties functioned differently. He said power in a popular sovereignty was constituent-based (bottom-top) wherein the president derived it from the masses. In a monarchical sovereignty, he said it was ‘top-bottom’ as guided by Section 12 and 79 of the Constitution. Reads Section 12: “The King and Ngwenyama shall upon his installation as King and Ngwenyama take and subscribe an oath for the due execution of his office in accordance with Swazi law and custom.” On the other hand, Section 79: “The system of government for Swaziland is a democratic, participatory, Tinkhundla-based system which emphasises devolution of State power from central government to Tinkhundla areas and individual merit as a basis for election or appointment to public office.”

strengthened powers

The Times SUNDAY has learnt how the MPs can address the King’s powers. They can even reduce or strengthened his powers. Pertaining to the powers of His Majesty and Her Majesty, Section 246 of the Constitution requires three-quarters of all the members of the two chambers to pass the Bill. Reads Section 246 (1): “Where a Bill in terms of this chapter contains provision for amending any of the specially entrenched provisions of this Constitution as set out in subsection (2), the Bill shall not be passed at the joint sitting unless it is supported on its final reading by the votes of not less than three-quarters of all the members of the two chambers.” Say both chambers pass the Bill, the presiding officers shall not present it to the King for assent until it has been approved by a majority of all votes validly cast at a referendum. Only people registered as voters at the time of the referendum are eligible to cast the votes.

Reads Section 246 (3); “Where a Bill in terms of this section has been duly passed at a joint sitting, that Bill shall not be presented to the King for assent unless it is approved by a simple majority of all votes validly cast at a referendum in such manner as may be prescribed, at which every person who at the time of the referendum is registered as a voter for purposes of the elected members of the House shall be entitled to vote.” It must be said that the royal prerogatives which MPs can amend through the tabling of the Bill refer to the office of the King and Ingwenyama as enshrined in Section 4. This is the section in which the King and Ingwenyama of Eswatini is lawfully declared as a hereditary Head of State. His powers and prerogatives as commander-in chief of the defence force, commissioner-in-chief of the police service and commissioner-in-chief of the correctional services are contained in Section 4 of the Constitution.

succession

Section 5 is about succession to the Throne, while Section 7(2) refers to the powers of Indlovukazi as Queen Regent, with Section 7 (3) as read with Section 8(2) address powers of the senior prince (umntfwanenkhosi lomkhulu). Section 9, which the MPs could amend through the Bill, refers to the King’s civil list, wherein it is provided that the King and Ingwenyama shall be paid such emoluments and shall have such civil list as may be prescribed. It is stated that any remuneration prescribed under Section 9 shall be charged or paid out of the Consolidated Fund and shall not be reduced during the continuance of King and Ingwenyama.

According to legal experts, Section 9 (2) can be amended through the Bill, but the MPs or nation at large cannot reduce the Monarch’s pay as long as he is the King and Ingwenyama.
Lomahasha MP Ndumiso Masimula said were to embrace what the EBC chairman talked about in Pigg’s Peak if he was referring to the Head of State in his capacity as Ingwenyama.
MP Masimula, a teacher by profession, said Ingwenyama is above law; hence it could be really impractical to alter his powers in that capacity. Nonetheless, he mentioned that the institution of the monarchy, in his understanding, is different from Ingwenyama; meaning that they could address it in Parliament. He said the institution of the monarchy, in actual fact, referred to the people whose welfare should be addressed by Parliament. One MP who preferred to speak on condition of anonymity said the King should not be elevated to the status of a dictator as the Constitution made it clear how his powers should be amended. In November 2021, Cyril Ramaphosa, the President of South Africa, in his capacity as the Chairperson of the SADC Organ on Politics, Defence and Security Cooperation talked about the importance of the Constitution of the Kingdom of Eswatini.

mandate

In his statement which he made after meeting His Majesty King Mswati III at Lozitha, Ramaphosa said: “The process towards the national dialogue will take into account and incorporate structures and processes enshrined in the Constitution of the Kingdom of Eswatini, including the role of the Parliament of the Kingdom, and the Sibaya convened by His Majesty King Mswati III.” Benedict Xaba, the Clerk to Parliament, said the mandate of Parliament was clear as it bordered on representation, oversight and legislation in line with the Constitution.
Xaba said Parliament procedures and Standing Orders did not allow the parliamentarians to criticise the King inside and outside the chambers in his capacity as Ingwenyama. However, he mentioned that the Parliament worked in conjunction with His Majesty the King in enacting laws and governance of the country. In a nutshell, he said Parliament is guided by the Constitution and Standing Orders in passing laws.