MBABANE – Government says the agreement to transfer the five immigrants to Eswatini does not impose any international obligation on Eswatini.
According to government, the agreement is of an administrative nature, therefore, not subject to ratification.
Government provided the explanation in points of law it raised in the urgent court application filed by the Swaziland Litigation Centre and others seeking, among other prayers, to declare the agreement with the United States to host immigrants unconstitutional and void.
They argue that the ‘unilateral agreement’ to host third- country immigrants in the kingdom is inconsistent with the provisions of Section 69(2) read together with Section 238(1) of the Constitution.
The applicants, who also include Mzwandile Masuku, Swaziland Rural Women’s Assembly and Melusi Simelane, are also seeking an order directing Prime Minister Russell Dlamini to produce/publish and furnish them with the agreement signed with the United States of America to receive and detain immigrants.
They are further praying for an order directing the prime minister to disclose the financial benefits of the unconstitutional agreement it signed with the United States of America, with immediate effect.
Government is vehemently opposed to this application and has raised points/questions of law in which it clarified that the agreement in question is of an executive or administrative nature and imposes no international obligation on Eswatini.
“The keeping of detainees at Correctional facilities is an administrative act by the Executive through the technical expertise of Correctional Services personnel.
“Such is the agreement envisaged under Section 238(3) of the Constitution, requiring neither ratification nor accession,” reads government’s notice to raise points/questions of law.
According to Section 238 of the Constitution of the Kingdom of Eswatini, under International Agreements: (1) The government may execute or cause to be executed an international agreement in the name of the Crown. Subsection 2 states that an international agreement executed by or under the authority of government shall be subject to ratification and become binding on the government by:
- An Act of Parliament; or
- A resolution of at least two-thirds of the members at a joint sitting of the two Chambers of Parliament.
However, Subsection 3 provides that the provisions of Subsection 2 do not apply where the agreement is of a technical, administrative or executive nature or is an agreement which does not require ratification or accession.
Government also argues in the points of law that the application by the applicants is not urgent and not within the provisions of Rule 6(25) of the High Court Rules.
“The applicants have not demonstrated that they cannot obtain substantive relief at a hearing in due course. They stand to suffer no irreparable harm if urgent enrolment is refused.
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