Preamble
Whereas We the People of the Kingdom of Swaziland do hereby under-take in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation; Whereas as a Nation it has always been our desire to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty; Whereas various vusela consultations, economic and constitutional commissions, political experiments and Sibaya meetings have been established and undertaken in the last thirty years in search of a sustainable home-grown political order; Whereas it has become necessary to review the various constitutional documents, decrees, laws, customs and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi nation; Whereas it is necessary to blend the good institutions of traditional law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation; 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 Organs and Agencies of the Government; Whereas it is necessary that the Courts be the ultimate Guardians of the Constitution if government of laws is to prevail; Whereas as a Nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good government, and the happiness and welfare of ALL our people; Now, THEREFORE, WE, ….. hereby Enact, Proclaim And Give to Ourselves the following Constitution as the Supreme Law of the Land. CHAPTER I
THE KINGDOM AND ITS CONSTITUTION
1: The Kingdom and its territory
1. Swaziland is a unitary, sovereign, democratic Kingdom.
2. The territory of Swaziland comprises all the land that immediately before the 6th September 1968 comprised the former Protected State of Swaziland together with such additional land as may from time to time be declared to form part of Swaziland in accordance with international law.
2: The Constitution
1. This Constitution is the supreme law of Swaziland and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.
2. The King and all the citizens of Swaziland have the right and duty at all times to uphold and defend this Constitution.
3. Unless otherwise provided for in this Constitution, any person who -
a. by himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or
b. aids and abets in any manner any person referred to in paragraph (a); commits the offence of treason.
3: The Anthem, Flag and Languages
1. The National Anthem and Flag of Swaziland shall be the Anthem or Flag lawfully in use at the time of commencement of this Constitution or such other Anthem or Flag as may from time to time be prescribed.
2. The official languages of Swaziland are siSwati and English.
3. Notwithstanding the provisions of subsection (2), the authoritative text of any law or document shall be the text in which that law or document was originally passed or produced.
CHAPTER II RELIGION
4: The official religion
b. The official religion of Swaziland is Christianity.
c. The provisions of subsection (1) shall not prevent the existence or practice of other religions.
CHAPTER III MONARCHY
5: The King
1. The King of Swaziland is an hereditary Head of State and shall have such official name as shall be designated on the occasion of his ascension to the Throne.
2. The King is a symbol of unity and the eternity of the Swazi nation.
3. The King is the-
a. Commander-in-Chief of the Defence Forces;
b. Commissioner-in-Chief of the Police Force; and
c. Commissioner-in-Chief of the Correctional Services
4. The King has such rights, prerogatives and obligations as are conferred on him by this Constitution or any other law, including Swazi law and custom, and shall exercise those rights, prerogatives and obligations in terms of this Constitution.
6: Succession to the Throne
1. Succession to the office of King is hereditary and governed by Swazi law and custom.
2. Where the office of King becomes vacant the successor to the Throne shall be determined and declared in accordance with Swazi law and custom.
7: Crown Prince (Umntfwana)
1. Until he ascends to the Throne, a person declared a successor in terms of section 6, shall be designated as Crown Prince.
2. The Crown Prince shall not ascend the Throne unless he has attained the age of eighteen years.
3. The Crown Prince, before ascending the Throne as King, shall be declared Ngwenyama in accordance with Swazi law and custom.
4. The Crown Prince shall not assume any of the duties of the office of King until he ascends the Throne.
5. The Crown Prince shall be entitled to such training, allowance and other privileges as may be prescribed appropriate to his status.
8: The Ndlovukazi
1. Without derogating from the provisions of section 230, the Ndlovukazi is traditionally the mother of the Ngwenyama and is appointed in accordance with Swazi law and custon.
2. Until the King has been installed, that is to say, until he has publicly assumed the functions and responsibilities of King in accordance with Swazi law and custom, or during any period when he is by reason of absence from Swaziland or any other cause unable to perform the functions of his office, those functions shall be performed, save as otherwise provided in this section, by the Ndlovukazi acting as Regent.
3. In her capacity as Regent the Ndlovukazi shall be assisted and advised by the Authorised Person-in-Libandla.
4. In the event of a disagreement between the Regent and the Authorised Person, (acting as mentioned in subsection (3)) the matter shall be referred by the Ndlovukazi for the consideration and advice of Bantfwabenkhosi and chiefs, whose advice shall be binding, unless the Ndlovukazi and the Authorised Person otherwise agree.
9: The Authorised Person
1. Without prejudice to the provisions of section 234, the Authorised Person is appointed in accordance with Swazi law and custom.
2. Where the Ndlovukazi in her capacity as Regent is temporarily out of the Kingdom or for any reason temporarily unable to perform the functions of her office, subject to any requirements in terms of Swazi law and custom, the Authorised Person may perform those functions subject to any specific instructions she may make.
3. The office of Authorised Person remains in abeyance to be activated when the Ndlovukazi becomes the Queen Regent.
10: Civil List of the King, etc
1. The King shall be paid such emoluments and shall have such Civil List as may be prescribed.
2. The Regent and Authorised Person shall be entitled to such remuneration as may be prescribed.
3. Any remuneration prescribed under this section shall be a charge on and paid out of the Consolidated Fund and shall not be reduced during the continuance in office of the King, Regent or Authorised Person respectively.
11: Immunity of the King, etc
1. The King shall be immune from taxation in respect of his Civil List, all income accruing to him and all property owned by him in his private capacity.
2. The Regent and Authorised Person shall be immune from taxation in respect of-
a. any remuneration received in terms of section 10 (2);
b. all income accruing to them in their private capacities; and
c. all property owned by them in their private capacities in so far as the taxation relates to the period of regency.
12: Protection of the King, etc, in respect of legal proceedings
1. The King shall be immune from-
a. suit or legal process in any civil cause in respect of all things done or omitted to be done by him in his private capacity; and
b. being summoned to appear as a witness in any civil or criminal proceeding.
2. Civil proceedings shall not be instituted or continued in respect of which relief is claimed against the Regent or Authorised Person in respect of anything done or omitted to be done by either of them in their private capacities and neither shall be summoned to appear as a witness in any civil or criminal proceedings.
3. Where provision is made by law limiting the time within which proceedings of any description may be brought against a person, the period during which that person held a position of Regent or Authorised Person shall not be taken into account in calculating the period of time prescribed by that law which determines whether any such proceedings as are mentioned in this section may be brought against that person.
13: Oaths by King, etc
1. The King shall upon his installation as King take and subscribe the oath for the due execution of his office as set out in the Second Schedule.
2. The Ndlovukazi shall, before commencing to act as Regent and the Authorised Person shall, before assuming the functions of that office, take and subscribe the oath of allegiance and the oath for the due execution of the office of Regent or Authorised Person, as the case may be, as set out in the Second Schedule.
3. The oaths referred to in this section shall be administered by the Chief Justice or, in the absence of the Chief Justice, by any Judge of the Superior Court of Judicature.
14: The King’s Advisory Council
1. There shall be the King’s Advisory Council, which shall be appointed by the King, consisting of such members as the King may determine.
2. The King as Ngwenyama shall appoint the Senior Prince (Umntfwanenkhosi Lomkhulu) to be chairman of the Council.
3. A member of Parliament shall not at the same qualify to be a member of the Council.
4. A member of the Council shall hold office for a period not exceeding five years and shall be eligible for re-appointment and shall vacate office where the member -
a. dies;
b. resigns; or
c. is removed from office by the King.
5. The Council shall advise the King on whatever issue or matter on which the King may seek advice.
6. A member of the Council shall, before assuming office, take and subscribe the oath of allegiance and due execution of office as set out in the Second Schedule.
7. Where the provisions of sections 8(2) and 9(2) become activated the Council shall become a Libandla whose members may be removed or appointed by the Ndlovukazi as Regent.
CHAPTER IV PROTECTION AND PROMOTION OF
FUNDAMENTAL RIGHTS AND FREEDOMS
15: Fundamental rights and freedoms of the individual
1. The fundamental human rights and freedoms of the individual enshrined in this Chapter are hereby declared and guaranteed, namely –
a. respect for life, liberty, security of person and equality before the law and equal protection of the law;
b. freedom of conscience, of expression and of peaceful assembly and association;
c. protection of the privacy of the home and other property of the individual; and
d. protection from deprivation of property without compensation except as otherwise provided by law.
2. The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government and, where applicable to them, by all natural and legal persons in Swaziland, and shall be enforceable by the courts as provided in this Constitution.
3. A person of whatever gender, race, place of origin, political opinion, colour, religion, creed, age or disability shall be entitled to the fundamental rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.
16: Protection of right to life
1. A person shall not be deprived of life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted.
2. The death penalty shall not be mandatory.
3. A sentence of life imprisonment shall not be less than twenty five years.
4. Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are mentioned in this subsection, a person shall not be regarded as having been deprived of life in contravention of this section if death results from use of force to such extent as is reasonably justifiable and proportionate in the circumstances of the case -
a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or
d. in order to prevent the commission by that person of a serious criminal offence.
5. Abortion is unlawful except -
a. on medical or therapeutic grounds including where a doctor certifies that –
i. continued pregnancy will endanger the life or constitute a serious threat to the physical health of the woman;
ii. continued pregnancy will constitute a serious threat to the mental health of the woman;
iii. there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped;
b. where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a female idiot or imbecile; or
c. on such other grounds as Parliament may prescribe.
17: Protection of right to personal liberty
1. A person shall not be deprived of personal liberty save as may be authorised by law in any of the following cases -
a. in execution of the sentence or order of a court, whether established for Swaziland or another country, or of an international court or tribunal in respect of a conviction of a criminal offence;
b. in execution of the order of a court punishing that person for contempt of that court or of another court or tribunal;
c. in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law;
d. for the purpose of bringing that person before a court in execution of the order of a court;
e. upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence under the laws of Swaziland;
f. in the case of a person who has not attained the age of eighteen years, for the purpose of the education care or welfare of that person;
g. for the purpose of preventing the spread of an infectious or contagious disease;
h. in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of the care or treatment of that person or the protection of the community;
i. for the purpose of preventing the unlawful entry of that person into Swaziland, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Swaziland or for the purpose of restricting that person while being conveyed through Swaziland in the course of the extradition or removal of that person as a convicted prisoner from one country to another; or
j. to such extent as may be necessary in the execution of a lawful order -
i. requiring that person to remain within a specified area within Swaziland or prohibiting that person from being within such an area;
ii. reasonably justifiable for the taking of proceedings against that person relating to the making of any such order; or
iii. reasonably justifiable for restraining that person during any visit, which that person is permitted to make to any part of Swaziland in which, in consequence of that order, the presence of that person would otherwise be unlawful.
2. A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which that person understands, of the reasons for the arrest or detention and of the right of that person to a lawyer chosen by that person.
3. A person who is arrested or detained –
d. for the purpose of bringing that person before a court in execution of the order of a court; or
e. upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence, shall, unless sooner released, be brought without undue delay before a court.
4. Where a person arrested or detained pursuant to the provisions of subsection (3), is not brought before a court within forty-eight hours of the arrest or detention, the burden of proving that the provisions of subsection (3) have been complied with shall rest upon any person alleging that compliance.
5. Where a person is brought before a court in execution of the order of a court in any proceedings or upon any suspicion of that person having committed or being about to commit an offence, that person shall not be further held in custody in connection with those proceedings or that offence save upon the order of a court.
6. Where a person is arrested or detained -
a. the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the arrest or detention and place of the arrest or detention.
b. b. the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access and confidentiality to that person; and
c. c. that person shall be allowed reasonable access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
7. If a person is arrested or detained as mentioned in subsection (3)(b) then, without prejudice to any further proceedings that may be brought against that person, that person shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that that person appears at a later date for trial or for proceedings preliminary to trial.
8. A person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.
9. Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person has spent in lawful custody in respect of that offence before the completion of the trial of that person shall be taken into account in imposing the term of imprisonment.
18: Protection from slavery and forced labour
1. A person shall not be held in slavery or servitude.
2. A person shall not be required to perform forced labour.
3. For the purposes of this section, the expression “forced labour” does not include any labour –
a. required in consequence of the sentence or order of a court;
b. required of any person while that person is lawfully detained which, though not required in consequence of the sentence or order of the court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which that person is detained;
c. required of a member of a disciplined force in pursuance of the duties of that member or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labour that that person is required by law to perform in place of that service;
d. required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of that labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or
e. reasonably required as part of reasonable and normal parental, cultural, communal or other civic obligations, unless it is repugnant to the general principles of humanity.
19: Protection from inhuman or degrading treatment
1. The dignity of every person is inviolable.
2. A person shall not be subjected to torture or to inhuman or degrading treatment or punishment.
20: Protection from deprivation of property
1. A person has a right to own property either alone or in association with others.
2. A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied -
a. the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health;
b. the compulsory taking of possession or acquisition of the property is made under a law which makes provision for -
i. prompt payment of fair and adequate compensation; and
ii. a right of access to a court of law by any person who has an interest in or right over the property;
f. the taking of possession or the acquisition is made under a court order.
21: Equality before the law
1. All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
2. For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.
3. For the purposes of this section, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethnic origin, birth, tribe, creed or religion, or social or economic standing, political opinion, age or disability.
4. Subject to the provisions of subsection (5) Parliament shall not be competent to enact a law that is discriminatory either of itself or in its effect.
5. Nothing in this section shall prevent Parliament from enacting laws that are necessary for implementing policies and programmes aimed at redressing social, economic or educational or other imbalances in society.
22: Right to fair hearing
1. In the determination of civil rights and obligations or any criminal charge a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adjudicating authority established by law.
2. A person who is charged with a criminal offence shall be-
a. presumed to be innocent until that person is proved or has pleaded guilty;
b. informed as soon as reasonably practicable, in a language which that person understands and in sufficient detail, of the nature of the offence or charge;
c. entitled to legal representation at the expense of the government in the case of any offence which carries a sentence of death or imprisonment for life;
d. given adequate time and facilities for the preparation of the defence;
e. permitted to present a defence before the court either directly or through a legal representative chosen by that person;
f. afforded facilities to examine in person or by a legal representative the witnesses called by the prosecution and to obtain the attendance of witnesses to testify on behalf of that person on the same conditions as those applying to witnesses called by the prosecution; and
g. permitted to have, without payment, the assistance of an interpreter if that person cannot understand the language used at the trial.
3. Except with the consent of the person concerned and for purposes of subsection (2), the trial shall not take place in the absence of that person unless that person acts so as to render the continuance of the proceedings in the presence of that person impracticable and the court has ordered that person to be removed and the trial to proceed in the absence of that person.
4. Where a person is tried for any criminal offence, the accused person or person authorised by the accused person shall, if the accused person or person authorised by the accused person so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
5. A person shall not be charged with or held to be guilty of a criminal offence on account of any act or omission that did not, at the time the act or omission took place, constitute an offence.
6. A penalty shall not be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
7. A person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall not again be tried for that offence or for any other criminal offence of which that person could have been convicted at the trial for the offence, save upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
8. A person shall not be tried for a criminal offence where that person has been pardoned for that offence.
9. A person who is tried for a criminal offence shall not be compelled to give evidence at the trial.
10. Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
11. All proceedings of every court or adjudicating authority shall be held in public.
12. Notwithstanding the provisions of subsection (11), a court or adjudicating authority -
a. may, unless it is otherwise provided by Act of Parliament, exclude from its proceedings persons other than the parties and their legal representatives to such extent as the court may consider -
i. in circumstances where publicity may unduly prejudice the interests of defence, public safety, public order, justice, or public morality or would prejudice the welfare of persons under the age of eighteen years or as the court may deem appropriate; or
ii. in interlocutory proceedings;
g. shall, where it is so prescribed by a law that is reasonably required in the interests of defence, public safety, public order, justice, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of the persons concerned in the proceedings, exclude from its proceedings persons, other than the parties and their legal representatives, to such extent as is so prescribed.
13. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of -
a. subsection (2) (a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
b. b. subsection (2) (e) to the extent that the law in question prohibits legal representation before a Swazi Court or before any Swazi court hearing appeals from such a court;
c. c. subsection (2) (f) to the extent that the law in question imposes conditions that should be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or
d. d. subsection (7) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying and convicting that member shall in sentencing that member to any punishment take into account any punishment awarded under that disciplinary law.
14. In the case of a person who is held in lawful detention, the provisions of subsections (1), (2) (e) and (f) and (3) shall not apply in relation to the trial of that person for a criminal offence under the law regulating the discipline of persons held in such detention.
15. In this section “criminal offence” means a criminal offence under the law of Swaziland, and “proceedings” in relation to a court or adjudicating authority includes the announcement of the decision of the court or adjudicating authority.
23: Protection against arbitrary search or entry.
1. A person shall not be subjected –
a. to the search of the person or the property of that person;
b. to the entry by others on the premises of that person;
c. to the search of the private communications of that person; except with the consent of that person first obtained.
2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that -
a. is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;
b. is reasonably required for the purpose of promoting the rights or freedoms of other persons;
c. authorises an officer or agent of the Government or of a local government authority, or of a body corporate established by law for public purposes, to enter on the premises of any person in order to inspect those premises or anything on those premises for the purposes of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to that Government, authority, or body corporate as the case may be;
d. authorises, for the purposes of enforcing the judgement or order of a court in any civil proceedings, the entry upon any premises by order of a court, except so far as, in respect of paragraph (c) or (d) that provision or, as the case may be, the thing done under the authority of that Government, local authority or body corporate is shown not to be reasonably justifiable in a democratic society.
24: Protection of freedom of conscience or religion
1. A person has a right to freedom of thought, conscience or religion.
2. Except with the consent of that person, a person shall not be hindered in the enjoyment of the freedom of conscience, and for the purposes of this section freedom of conscience includes freedom of thought and of religion, freedom to change religion or belief, and freedom of worship either alone or in community with others.
3. A religious community is entitled to establish and maintain places of education and to manage any place of education which that community wholly maintains, and that community may not be prevented from providing religious instruction for persons of that community in the course of any education provided at any place of education which that community wholly maintains or in the course of any education which that community otherwise provides.
4. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. that is reasonably required in the interest of defence, public safety, public order, public morality or public health; or
b. that is reasonably required for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of members of any other religion or belief.
25: Protection of freedom of expression
1. A person has a right of freedom of expression and opinion.
2. A person shall not except with the consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say -
a. freedom to hold opinions without interference;
b. freedom to receive ideas and information without interference;
c. freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and
d. freedom from interference with the correspondence of that person.
3. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
b. that is reasonably required for the purpose of -
i. protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;
ii. preventing the disclosure of information received in confidence;
iii. maintaining the authority and independence of the courts; or
iv. regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication; or
h. that imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.
26: Protection of freedom of assembly and association
1. A person has the right to freedom of peaceful assembly and association.
2. A person shall not except with the consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.
3. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
b. that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
c. that imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.
4. Without prejudice to the generality of subsection (2), nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. for the registration of trade unions, employers organisations, companies, partnerships or co-operative societies and other associations including provision relating to the procedure for registration, prescribing qualifications for registration and authorising refusal of registration on the grounds that the prescribed qualifications are not fulfilled; or
i. for prohibiting or restricting the performance of any function or the carrying on of any business by any such association as is mentioned in paragraph (a) which is not registered.
5. A person shall not be compelled to join or belong to an association.
27: Protection of freedom of movement
1. A person shall not be deprived of the freedom of movement, that is to say, the right to move freely throughout Swaziland, the right to reside in any part of Swaziland, the right to enter Swaziland, the right to leave Swaziland and immunity from expulsion from Swaziland.
2. Any restriction on the freedom of movement of a person or residence that is involved in the lawful detention of that person shall not be held to be inconsistent with or in contravention of this section.
3. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
a. for the imposition of restrictions on the movement or residence within Swaziland of any person or on the right of any person to leave Swaziland that are reasonably required in the interests of defence, public safety or public order;
b. for the imposition of restrictions on the movement or residence within Swaziland of persons generally or any class of persons that are reasonably required in the interests of defence, public safety, public order, public morality or public health, and except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society;
c. for the imposition of restrictions, by order of a court, on the movement or residence within Swaziland of any person or on the right of any person to leave Swaziland either in consequence of having been found guilty of criminal offence under the law of Swaziland or for the purpose of ensuring the appearance of that person before a court at a later date for the trial of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to the extradition or lawful removal from Swaziland of that person;
d. for the imposition of restrictions on the freedom of entry or movement of any person who is not a citizen of Swaziland;
e. for the imposition of restrictions on the movement or residence within Swaziland of any person who holds or is acting in any public office;
f. for the removal of a person from Swaziland to be tried or punished in some other country for criminal offence under the law of that other country or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted; or
g. for the imposition of restrictions on the right of any person to leave Swaziland that are reasonably required in order to secure the fulfilment of any obligation imposed on that person by law.
4. If any person whose freedom of movement has been restricted by virtue of such a provision as is referred to in subsection (3) (a) so requests at any time during the period of that restriction not earlier than three months after the order imposing that restriction was made or three months after he last made such a request, as the case may be, the case of that person shall be reviewed by an independent and impartial tribunal presided over by a person appointed by the Chief Justice from among persons entitled to practise in Swaziland as advocates or attorneys and qualifying to hold high judicial office.
5. On any review by a tribunal in pursuance of subsection (4) of the case of any person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered and, unless it is otherwise provided by law, that authority shall be obliged to act in accordance with any such recommendations.
6. Nothing contained in or done under the authority of any provision of Swazi law and custom shall be held to be inconsistent with or in contravention of this section to the extent that that provision authorises the imposition of restrictions upon the freedom of any person to reside in any part of Swaziland.
28: Rights and protection of the family
1. Men and women of marriageable age have a right to marry and found a family.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental unit of society and is entitled to protection by the State.
4. Motherhood and childhood are entitled to special care and assistance by society and the State.
5. Society and the State have the duty to preserve and sustain the harmonious development, cohesion and respect for the family and family values.
6. Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of the needy and the elderly.
29: Rights and freedoms of women
1. Women have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.
2. Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.
3. A woman shall not be compelled to undergo or uphold any custom to which she is in conscience opposed.
30: Rights of the child
1. A child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child.
2. A child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.
3. The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.
4. Children whether born in or out of wedlock shall enjoy the same protection.
5. Children have the duty to respect their parents at all times and to maintain those parents in case of need.
6. Every Swazi child shall have the right to free education in public schools at least up to end of primary school within three years of the commencement of this Constitution.
7. Parliament shall enact laws necessary to ensure that -
a. a child has the right to the same measure of special care, assistance and maintenance as is natural for its development from its natural parents, except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law;
b. a child is entitled to reasonable provision out of the estate of its parents;
c. parents undertake their natural right and obligation of care, maintenance and proper upbringing of their children; and
d. children receive special protection against exposure to physical and moral hazards within and outside the family.
31: Rights of persons with disability
1. Persons with disabilities have a right to respect and human dignity and the Government and society shall take appropriate measures to ensure that those persons realise their full mental and physical potential.
2. Parliament shall enact laws for the protection of persons with disabilities so as to enable those persons to enjoy productive and fulfilling lives.
32: Abolition of the status of illegitimacy
The status of illegitimacy of persons born out of wedlock is abolished.
33: Rights of workers
1. A person has the right to practise a profession and to carry on any lawful occupation, trade or business.
2. A worker has a right to –
a. freely form, join or not to join a trade union for the promotion and protection of the economic interests of that worker; and
b. collective bargaining and representation.
3. The employer of a female worker shall accord that worker protection before and after child birth in accordance with law.
4. Parliament shall enact laws to -
a. provide for the right of persons to work under satisfactory, safe and healthy conditions;
b. ensure equal payment for equal work without discrimination;
c. ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay as well as remuneration for public holidays; and
d. protect employees from victimisation and unfair dismissal or treatment.
34: Right to administrative justice
1. A person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.
2. A person appearing before any administrative authority has a right to be given reasons in writing for the decision of that authority.
35: Property rights of spouses
1. A surviving spouse is entitled to a reasonable provision out of the estate of the other spouse whether the other spouse died having made a valid will or not and whether the spouses were married by civil or customary rites.
2. Parliament shall, as soon as practicable after the commencement of this Constitution, enact legislation regulating the property rights of spouses including common-law husband and wife.
36: Enforcement of protective provisions
1. Where a person alleges that any of the foregoing provisions of this Chapter has been, is being, or is likely to be, contravened in relation to that person or a group of which that person is a member (or, in the case of a person who is detained, where any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
2. The High Court shall have original jurisdiction –
a. to hear and determine any application made in pursuance of subsection (1);
b. to determine any question which is referred to it in pursuance of subsection (3); and may make such orders, issue such writs and make such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Chapter.
3. If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of this Chapter, the person presiding in that court may, and shall where a party to the proceedings so requests, stay the proceedings and refer the question to the High Court unless, in the judgement of that person, which shall be final, the raising of the question is merely frivolous or vexatious.
4. Where any question is referred to the High Court in pursuance of subsection (3) the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Supreme Court, in accordance with the decision of the Supreme Court.
5. An appeal shall not lie, without the leave of the Supreme Court, from any determination by the High Court that an application made in pursuance of subsection (1) is merely frivolous or vexatious.
6. Provision may be made by or under an Act of Parliament for conferring upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or expedient for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.
7. The Chief Justice may make rules for purposes of this section with respect to the practice and procedure of the High Court (including rules with respect to the time within which applications to that court may be made).
37: Declaration of emergency
1. The King may, on the advice of the Prime Minister, by proclamation which shall be published in the Gazette, declare that a state of emergency exists in Swaziland or any part of Swaziland for the purposes of this Chapter.
2. The provisions of subsection (1) shall not apply and a proclamation shall not be issued under that subsection and where issued that proclamation shall not be effective in law unless -
a. Swaziland is at war or circumstances have arisen making imminent a state of war between Swaziland and a foreign State;
b. there is in Swaziland a natural disaster or imminent threat of a natural disaster; or
c. there is action taken or immediately threatened by a person or body of persons of such a nature or on so extensive a scale as to be likely to endanger the public safety or to deprive the community or a significant part of that community of supplies or services essential to the life of the community.
3. Copies of the Gazette containing the proclamation of a state of emergency shall as soon as practicable and at any rate not later than seven days from date of publication of that proclamation be laid before Parliament by the Prime Minister.
4. A declaration under subsection (1) if not sooner revoked, shall cease to have effect -
a. in the case of a declaration made when Parliament is sitting or has been summoned to meet within three days, at the expiration of a period of seven days beginning with the date of publication of the declaration;
j. in any other case, at the expiration of a period of twenty-one days beginning with the date of publication of the declaration, unless, before the expiration of that period, the declaration is approved by a resolution passed by a two-thirds majority at a joint sitting of all the members of the Senate and the House.
5. Subject to the provisions of subsection (12), the joint sitting referred to in subsection (4) shall not dissolve but only be adjourned to be reconvened from time to time by the President until the emergency is ended.
6. A declaration approved by a resolution passed at a joint sitting under subsection (4) shall continue in force until the expiration of a period of three months beginning with the date upon which that declaration was so approved or until such earlier date as may be specified in the resolution.
7. Notwithstanding the provisions of subsection (6), the declaration may be extended from time to time for periods of not more than three months at a time by a resolution passed by a three-fifths majority at a joint sitting of all the members of Senate and the House.
8. Where a person is detained or restricted by virtue of a power exercised in the absolute discretion of any authority and conferred by any such law as is referred to in section 38(1), the following shall apply, that is to say -
a. that person shall, as soon as reasonably practicable and in any case not more than seventy two hours after the detention or restriction, be furnished with a statement in writing in a language that the person understands specifying in sufficient detail the grounds upon which that person is detained or restricted;
k. not more than five days after detention or restriction, a notification shall be published in the Gazette stating that the person has been detained or restricted and giving particulars of the provision of law under which the detention or restriction is authorised;
l. not more than fourteen days after detention or restriction and thereafter at intervals of three months, the case of that person shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice from among persons entitled to practise in Swaziland as advocates or attorneys and who qualify to be judges;
m. the detained or restricted person shall be afforded reasonable facilities to consult a legal practitioner who shall be permitted to make representations to the tribunal; and
n. at the hearing before the tribunal, that person may appear in person or by legal representative.
9. On any review by a tribunal of the case of a detained or restricted person the tribunal may make recommendations concerning the necessity or expediency of continuing the detention or restriction to the authority by which the detention or restriction was ordered and the authority shall be obliged to act in accordance with any such recommendations.
10. Where movement of persons is restricted or curfew imposed, that restriction or curfew, unless lifted within twenty-one days, shall be reviewed by the tribunal appointed in terms of subsection (8) (c) at intervals of not more than one month and any person or group of persons affected by the restriction or curfew may make submissions to the tribunal.
11. Where the public emergency has been extended beyond twenty-one days, the Prime Minister shall make a report to a joint sitting of the Senate and the House stating among other things, the number of persons, if any detained or restricted in terms of this section, the status of the emergency and the public reaction to the continued state of emergency.
12. The provisions of the First Schedule shall apply with respect to the summoning and procedure of the joint sitting of the Senate and the House.
38: Derogations during public emergency
1. Without prejudice to the power of Parliament to make provision in any situation or the provisions of section 39, nothing contained in or done under the authority of a law shall be held to be inconsistent with or in contravention of any provision of this Chapter to the extent that the law authorises the taking, during any period of public emergency, of measures that are reasonably justifiable for dealing with the situation that exists during that period.
2. A law that is passed during a period of public emergency and is expressly declared to have effect only during that period shall have effect in terms provided in the section of this Chapter under which that law is passed.
39: Prohibition of certain derogations
Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms -
a. life, equality and security of person;
b. the right to fair hearing;
c. freedom from slavery or servitude;
d. the right to an order in terms of section 36 (1); and
e. freedom from torture, cruel, inhuman or degrading treatment or punishment.
40: Saving clauses and interpretation
1. Save as may otherwise be expressly indicated, nothing contained in section 22 (2) or section 37 (8) shall be construed as entitling a person to legal representation at public expense.
2. Nothing contained in section 21, 25 or 26 shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to the communication or association with other persons or as to the movements or residence of those officers.
3. In relation to a person who is a member of a disciplined force of Swaziland, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 16, 18, or 19.
4. Measures taken in relation to a person who is a member of a disciplined force of a country with which Swaziland is at war and any law, to the extent that it authorises the taking of any of those measures shall not be held to be inconsistent with or in contravention of any of the provisions of this Chapter.
5. The provisions of section 37 (8) do not apply in the case of a detained or restricted person who is a citizen of a country which is at war with Swaziland or has been engaged in hostilities against Swaziland in association with or on behalf of that country or otherwise assisting that country.
6. In this Chapter, unless the context otherwise requires - “contravention”, in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly; “court” means a court of law having jurisdiction in Swaziland, but does not include, save in sections 16 and 18, a court established by a disciplinary law; “disciplinary law” means law regulating the discipline of any disciplined force; “disciplined force” means –
a. an air, military or naval force;
b. the Swaziland Royal Police Force;
c. the Swaziland Correctional Services. “member” in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline; “period of public emergency” means any period so declared under section 37. “property” means property, movable or immovable, corporeal or incorporeal, of any description whatever including Swazi nation land and any right or interest lawfully held by any person in that property.
CHAPTER V CITIZENSHIP
Part 1
Acquisition of Citizenship
41: Citizen of Swaziland
A person who, on the commencement of this Constitution, is a citizen of Swaziland shall continue to be such citizen.
42: Citizenship by descent
1. A person born, whether before or after the commencement of this Constitution and whether in or outside of Swaziland, is a citizen by descent if by birth that person is a descendant of a citizen of Swaziland.
2. A child adopted, whether before or after the commencement of this Constitution, under the legislation relating to the adoption of children or under customary law, shall, if not already a citizen, be deemed to be a citizen of Swaziland by birth if, at the time of adoption the adoptive parent was a citizen of Swaziland or would have been a citizen if this Constitution were in force.
43: Citizenship by operation of law
1. A person born in or outside Swaziland before the commencement of this Constitution shall be a citizen of Swaziland by operation of law if at the birth of that person one of the parents was a citizen of Swaziland.
2. In this section “citizen by operation of law” refers to a person who was born before the existence of the status of a citizen of Swaziland and was a member of a class of persons -
a. generally regarded as Swazi by descent; and
b. subsequently declared by law to be citizens of Swaziland.
3. This section shall cease to apply to a person being a citizen of another country who, on being so required by the Board in terms of section 50 (1) (d), has failed to renounce that other citizenship -
a. within one year after that person attains the age of majority
(or within such extended period as the Board may allow); or
b. where that person attained the age of majority before the commencement of this Constitution, within one year after that commencement (or within such extended period as the Board may allow).
44: Citizenship by birth
1. A person born in Swaziland after the commencement of this Constitution is a citizen of Swaziland by birth if at the time of birth the father of that person was a citizen of Swaziland in terms of this Constitution.
2. A person born outside Swaziland after the commencement of this Constitution is a citizen of Swaziland if at the time of birth the father of that person was a citizen of Swaziland in terms of this Constitution.
3. A person born outside Swaziland who becomes a citizen by virtue of subsection (2) shall cease to be a citizen if the father of that person was also born outside Swaziland unless, within one year after attaining the age of majority (or within such extended time as the Board may allow) that person notifies the Board in writing of the desire to retain the citizenship of Swaziland.
4. Where a child born outside of marriage is not adopted by its father or claimed by that father in accordance with Swazi law and custom and the mother of that child is a citizen of Swaziland, the child shall be a citizen of Swaziland by birth.
45: Citizenship by marriage
1. A woman who is not a citizen of Swaziland at the date of her marriage to a person who is a citizen (otherwise than by registration) shall become a citizen by lodging a declaration in the prescribed manner with the Minister responsible for citizenship or with any Diplomatic Mission or Consular Office of Swaziland or at any other prescribed office, either before or at any time during the marriage, accepting Swaziland citizenship.
2. A woman who lodges a declaration in terms of subsection (1) shall be a citizen from the date of her marriage, where the declaration is lodged before the marriage, or where the declaration is lodged after marriage, from date of lodgement.
3. This section applies to marriage whether before or after the commencement of this Constitution.
46: Citizenship by registration
1. A person may acquire citizenship by registration where that person satisfies the Board on the conditions set out in subsection (2), (3) or (4).
2. The conditions for registration of a person are that the person-
a. has been ordinarily and lawfully resident in Swaziland,
i. for a continuous period of at least twelve months immediately preceding the date of application for registration; and
ii. for periods amounting in the aggregate to not less than five years during the seven years preceding the date of application for registration.
o. is of good character;
p. has an adequate knowledge of siSwati or English;
q. intends, in the event of citizenship being granted, to reside in Swaziland;
r. has adequate means for support whilst in Swaziland; and
s. has contributed and shall contribute to the development of the country.
3. A person who is ordinarily resident in Swaziland and has been so resident for a period of at least ten years and whose application is supported by a Chief after consultation with bandlancane or three reputable citizens, may be registered as a citizen.
4. Citizenship by registration shall not be granted to any person under this section until that person has taken the oath or affirmation of allegiance in the Second Schedule or such other oath or affirmation as may be prescribed.
5. The person to whom citizenship is granted in terms of this section shall be a citizen from the date on which a certificate of registration as a citizen is granted.
1. In this section, “bandlancane” means a Chief’s council established in accordance with Swazi law and custom.
47: Posthumous children
A child born after the death of the father shall be deemed to be a citizen under this Chapter on the same conditions as if the father were alive when that child was born.
48: Foundlings
A deserted child of not more than seven years found in Swaziland shall, unless the contrary is proved, be deemed to have been born in Swaziland and shall be treated for the purposes of this Chapter as a citizen by birth.
49: Birth aboard a ship or aircraft
1. A person born aboard a ship or aircraft registered in Swaziland wherever it may be shall be deemed to be born in Swaziland.
2. A person born aboard an unregistered ship or aircraft of the Government shall be deemed to be born in Swaziland.
Part 2 Loss of Citizenship
50: Deprivation of citizenship
1. A person who is a citizen of Swaziland by registration may be deprived of that citizenship by order of the Board where the Board is satisfied that –
a. the issue of the relevant certificate has been declared by a court to have been procured by fraud, misrepresentation or concealment of material facts;
b. the person has shown himself by any overt act other than marriage to have acquired another citizenship;
c. the person has by any voluntary act other than marriage acquired another citizenship;
d. the person has, on being so required by the Board, failed to renounce the citizenship of any other country;
e. the person has been resident outside Swaziland (otherwise than in the public service) for a continuous period of seven years and during that period has failed without reasonable excuse to register with the Board at such times and in such manner as may be prescribed a declaration of intention to retain citizenship of Swaziland, and that on any of these grounds it is not conducive to the public good that the person should continue to be a citizen of Swaziland.
2. A woman who acquired citizenship as a consequence of her marriage to a citizen of Swaziland, may be deprived of that citizenship where the marriage was entered into merely for the purpose of acquiring citizenship.
3. Before making a revocation order, the Board shall give notice to the person concerned of the fact that the revocation of the citizenship of that person is being considered, stating the grounds for revocation and the right of that person to apply to the Board within the period stipulated in the notice challenging the revocation order and giving reasons in support of the challenge.
4. The Board shall investigate the case and where reasonably practicable hear the person or the legal representative of that person.
5. In depriving a person of Swaziland citizenship, the Board shall endeavour not to render the person stateless.
6. In this section “registration” includes naturalisation or registration (otherwise than as of right) under any law that existed before the commencement of this Constitution.
51: Renunciation of citizenship
If a citizen of Swaziland who has attained the age of majority, or being a woman is or is about to be married, is or is about to become a citizen of another country and for that reason desires to renounce his or her citizenship of Swaziland, that citizen may do so by lodging with the Board a declaration of renunciation of that citizenship and, upon lodgement of the declaration or, if not then a citizen of that other country, upon becoming that citizen, he or she shall cease to be a citizen of Swaziland.
52: Preservation of obligations on cessation of citizenship.
Where a person ceases to be a citizen of Swaziland that cesser shall not of itself operate to discharge any obligations, duty or liability undertaken, imposed or incurred before the cessation.
53: Death of citizen or loss of citizenship
1. The death of a citizen of Swaziland shall not affect the citizenship of a surviving spouse or child or another dependant.
2. Loss of Swazi citizenship by a person shall not of itself affect the citizenship of a spouse or child.
54: Citizenship Board
1. There shall be a Citizenship Board which shall have the exclusive authority to -
a. grant or cancel citizenship by registration;
b. investigate and where appropriate revoke the citizenship of any person under section 50;
c. advise the Minister responsible for citizenship on any other aspects relating to citizenship; and
d. do such things as are incidental or related to the exercise of its powers.
2. The Board shall consist of a Chairman and not more than seven members appointed by the King on the advice of the Minister responsible five of whom shall constitute a quorum and the Chief Immigration Officer shall be ex officio member.
3. At least one of the members of the Board shall have such qualification as is required for appointment as a Judge of the High Court.
4. The Chairman and members of the Board shall hold office for a period not exceeding five years and shall be eligible for a single reappointment.
5. The Chairman and members of the Board may be removed from office by the King, acting on the advice of the Minister responsible, for incapacity (whether from infirmity of the body or mind) or for misbehaviour.
6. A person who has a case before the Board shall have the right to be heard and to be represented by a legal practitioner at the hearing.
7. All matters submitted for consideration by the Board shall be finalised within a period of six months.
55: Certificate of citizenship
1. The Board shall cause to be issued on request to a citizen of Swaziland a certificate of citizenship in prescribed form certifying that that person is a citizen of Swaziland.
2. A certificate of citizenship shall be the property of Government and shall be delivered up on demand by or on behalf of the Board.
3. The Board may revoke a certificate of citizenship for good cause.
56: Provision for other matters
1. Subject to the provisions of this Chapter Parliament may make law relating to the acquisition or loss of citizenship by registration or naturalisation, including but not limited to, the following –
a. keeping of record of citizens;
b. registration of births abroad;
c. certificate of citizenship;
d. offences; and
e. incidental matters to the above.
CHAPTER VI DIRECTIVE PRINCIPLES OF STATE POLICY AND DUTIES OF THE CITIZEN
57: General objectives
1. The Directive Principles of State Policy contained in this Chapter shall guide all organs and agencies of the State, citizens, organisations and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just, free and democratic society.
2. The Prime Minister shall report to Parliament at least once a year all the steps taken to ensure the realization of the directive principles contained in this Chapter.
3. The provisions of sections 58 to 64 inclusive are not enforceable in any court or tribunal.
4. The distribution of powers and functions as well as checks and balances provided for in this Constitution among the various organs and institutions of Government shall be supported through the provision of adequate resources for their effective functioning at all levels.
58: Law enforcement objectives
1. Law enforcement officials shall at all times fulfil the duty imposed upon them by the law by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.
2. In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
3. Law enforcement officials may not inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
4. Law enforcement officials shall not commit any act of corruption. They shall also rigorously oppose and combat all those acts.
59: Political objectives
1. Swaziland shall be a democratic country dedicated to principles which empower and encourage the active participation of all citizens at all levels in their own governance.
2. In the conduct of public affairs the State shall be guided by the principle of decentralisation and devolution of governmental functions and powers to the people at appropriate levels where the people can best manage and direct their own affairs.
3. The State shall cultivate among all the Swazi people through various measures including civic education respect for fundamental human rights and freedoms and the dignity of the human person.
4. All political and civic associations aspiring to manage and direct public affairs shall conform to democratic principles in their internal organisations and practice.
5. All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.
6. The State shall promote, among the people of Swaziland, the culture of political tolerance and all organs of State and people of Swaziland shall work towards the promotion of national unity, peace and stability.
7. The State shall provide a peaceful, secure and stable political environment which is necessary for economic development.
60: Economic objectives
1. The State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximise the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Swaziland and to provide adequate means of livelihood and suitable employment and public assistance to the needy.
2. The State shall, in particular, take all necessary steps to establish a sound and healthy economy whose underlying principles shall include -
a. the guarantee of a fair and realistic remuneration for production and productivity in order to encourage continued production and higher productivity;
b. affording ample opportunity for individual initiative and creativity in economic activities and fostering an enabling environment for a pronounced role of the private sector in the economy;
c. ensuring that individuals and the private sector bear their fair share of social and national responsibilities including responsibilities to contribute to the overall development of the country;
d. undertaking even and balanced development of all regions and in particular improving the conditions of life in the rural areas, and generally, redressing any imbalance in development between the rural and urban areas; and
e. the recognition that the most secure democracy is the one that assures the basic necessities of life for its people as a fundamental duty.
3. The State shall take appropriate measures to promote the development of agriculture and industry.
4. Foreign direct investment shall be encouraged subject to any law regulating investment.
5. The State shall afford equality of economic opportunity to all citizens and, in particular, the State shall take all necessary steps so as to ensure the full integration of women into the mainstream of economic development.
6. The State shall endeavour to settle the “land issue” and the issue of land concessions expeditiously so as to enhance economic development and the unity of the Swazi people.
61: Social objectives
1. The State shall guarantee and respect institutions which are charged by the State with responsibility for protecting and promoting human rights and freedoms by providing those institutions with adequate resources to function effectively.
2. The State shall guarantee and respect the independence of nongovernmental organisations which protect and promote human rights.
3. The State shall give the highest priority to the enactment of legislation for economic empowerment of citizens.
4. The State shall ensure gender balance and fair representation of marginalized groups in all constitutional and other bodies.
5. The State shall make reasonable provision for the welfare and maintenance of the aged and shall protect the family and recognise the significant role of the family in society.
6. The State and society shall recognise the right of persons with disabilities to respect and human dignity. .
7. The State shall promote recreation and shall ensure that adequate facilities for sports are provided throughout the country and that sports are provided as a means of fostering national integration, health and selfdiscipline as well as international friendship and understanding.
8. Without compromising quality the State shall promote free and compulsory basic education for all and shall take all practical measures to ensure the provision of basic health care services to the population.
9. The State shall institute an effective machinery for dealing with any hazard or disaster arising out of natural calamities or any situation resulting in general displacement of people or serious disruption of their normal life. .
10. The State shall take steps to encourage the integration of appropriate customary values into the fabric of national life through formal and informal education and shall ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole.
11. The State shall endeavour to preserve and protect places of historical interest and artefacts and the environment.
12. All public offices shall be held in trust for the people and the State shall do everything to ensure transparency in the conduct of public affairs.
62: Foreign policy objectives
1. In its dealings with other nations, the Government shall –
a. promote and protect the interests of Swaziland;
b. seek the establishment of a just and equitable international economic and social order;
c. promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means;
d. be opposed to all forms of domination, racism and other forms of oppression and exploitation.
2. Swaziland shall actively participate in international and regional organisations that stand for peace and for the well-being and progress of humanity.
63: Objectives on independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the constitution. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue is within its competence as defined by law.
4. There shall be no interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review in accordance with the law.
5. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments or promotion for improper motives.
6. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
64: Duties of the citizen
The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen to -
a. uphold and defend this Constitution and the law;
b. promote the prestige and good name of Swaziland and respect the symbols of the nation;
c. further the national interest and to foster national unity;
d. respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons;
e. promote democracy and the rule of law;
f. work conscientiously in the lawfully chosen occupation of that citizen;
g. protect and preserve public property, and to combat misuse and waste of public funds and property;
h. co-operate with lawful agencies in the maintenance of law and order; and
i. protect and safeguard the environment.
CHAPTER VII THE EXECUTIVE
65: Executive authority of Swaziland
1. The executive authority of Swaziland vests in the King as Head of State and shall be exercised in accordance with the provisions of this Constitution.
2. The King shall protect and defend this Constitution and all laws made under or continued in force by this Constitution.
3. Subject to the provisions of this Constitution, the King may exercise the executive authority either directly or through the Cabinet or a Minister.
4. The King in his capacity as Head of State has authority, in accordance with this Constitution or any other law, among other things to -
a. assent to and sign bills;
b. summon and dissolve Parliament;
c. receive foreign envoys and appoint diplomats;
d. issue pardons, reprieves or commute sentences;
e. declare a state of emergency; and
f. confer honours.
66: Exercise of King’s functions
1. In the exercise of the functions under this Constitution or any other law the King shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except where -
a. any function under this Constitution is expressed (in whatever terms) to be exercisable by him acting in his discretion or on the advice or the recommendation of or after consultation with any other person or authority;
b. any function conferred by any other law is expressed (in whatever terms) to be exercisable by him in his discretion; and
c. the provisions of section 159(5), 160(5), 176(4) or paragraph 1(1) of the First Schedule apply.
2. Where, in terms of subsection (1), the Cabinet or a Minister gives advice to the King, the King may in writing refer back that advice for further consideration by the Cabinet, and Cabinet shall meet within ten days to reconsider the advice as required by the King.
3. Where the King is required to exercise any function on the advice or recommendation of any person or authority, he shall exercise that function on that advice or recommendation, save that the King may before acting on the advice or recommendation, in his discretion, once refer back that advice or recommendation in whole or in part for reconsideration within ten days by the person or authority concerned.
4. Where the King is required by this Constitution to exercise any function after consultation with any person or authority, the King may or may not exercise that function on the advice of that person or authority.
67: The Cabinet of Ministers
1. There shall be a Cabinet which shall consist of the Prime Minister, Deputy Prime Minister and such number of Ministers as the King, after consultations with the Prime Minister, may deem necessary for the purpose of administering and executing the functions of the Government.
2. The Prime Minister shall be the chairman of the Cabinet and leader of Government business in Parliament.
68: Appointment of Prime Minister and other Ministers
1. The King shall appoint the Prime Minister from among members of the House acting on recommendation of the King’s Advisory Council.
2. The King shall appoint Ministers from both chambers of Parliament on the recommendation of the Prime Minister.
3. At least half the number of Ministers shall be appointed from among the elected members of the House.
69: Vacation of office of Prime Minister or Minister
1. The office of the Prime Minister shall become vacant where –
a. the King revokes the appointment for incompetence;
b. the Prime Minister is declared an insolvent;
c. the Prime Minister ceases to be a member of the House;
d. the Prime Minister resigns from office;
e. after a resolution of no confidence in the Prime Minister is passed by at least two thirds majority of all members of the House, the King removes the Prime Minister;
f. the Prime Minister is removed from office for misbehaviour or inability to perform the functions of that office (whether arising from infirmity of body or mind); or
g. the Prime Minister dies.
2. Where the King considers the question of removing the Prime Minister from office in terms of subsection (1) (f) -
a. the King shall appoint a tribunal, which shall consist of a chairman who shall be the Chief Justice and two other reputable persons one of whom should have held the position of a Minister, Speaker of the House or President of the Senate;
b. b. the tribunal shall enquire into the matter and report to the King whether or not to remove the Prime Minister from office for inability or misbehaviour.
3. The Prime Minister shall not hold office for more than two consecutive terms.
4. The office of a Minister shall become vacant where -
a. the King, acting on the recommendation of the Prime Minister, revokes that appointment;
t. the Minister is declared an insolvent;
u. the Minister ceases to be a member of Parliament;
v. the Minister resigns from office;
w. after a resolution of no confidence is passed by at least two thirds majority of all the members of the House on the Minister, the King removes the Minister;
x. the Minister dies; or
y. the Minister is removed from office for misbehaviour or inability to perform the functions of that office.
5. Where a resolution of no confidence is passed on the Cabinet by a three-fifths majority of all members of the House the King shall dissolve the Cabinet.
6. A Minister shall not be in office for more than three consecutive terms.
7. For purposes of this section -
a. a vote of no confidence in the Cabinet, Prime Minister or Minister shall not be moved more than once in a session;
b. any period served in an office within the life of Parliament constitutes a “term of office”.
70: Responsibility of Cabinet
1. The Cabinet shall keep the King fully informed about the general conduct of the government of Swaziland and shall furnish the King with such information as the King may require in respect of any particular matter relating to the government of Swaziland
2. The Cabinet shall be collectively responsible to Parliament for any advice given to the King by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in the execution of the office of Minister.
3. The Cabinet shall formulate and implement the policy of the Government in line with any national development strategy or plan and perform such other functions as may be conferred by this Constitution or any other law.
71: Assignment of responsibilities
The King may, after consultation with the Prime Minister, assign to the Prime Minister or any other Minister responsibility for the conduct of any business of the Government including the administration of any department of Government.
72: Exercise of the Prime Minister’s functions during absence or illness
Where the Prime Minister is absent from Swaziland or is by reason of illness or any other cause unable to exercise the functions conferred on the Prime Minister by this Constitution or any other law, those functions shall be exercised by the Deputy Prime Minster or where the Deputy Prime Minister is for any reason unable to exercise the functions of the office of the Prime Minister, by such other Minister as the King may authorize in writing for a maximum period not exceeding three months.
73: Exercise of Minister’s functions during absence or illness
Where a Minister is absent from Swaziland or is by reason of illness or any other cause unable to exercise the functions of the office of that Minister the Minister may, after consultation with the Prime Minister, delegate those functions to another Minister in writing for a maximum period not exceeding six months.
74: Oaths of office
A Prime Minister, Deputy Prime Minister or Minister shall, before assuming the duties of office take and subscribe the oath of allegiance and the oath for the due execution of office as set out in the Second Schedule.
75: Secretary to Cabinet
1. There shall be a Secretary to the Cabinet who shall be the head of the public service and whose office shall be a public office.
2. The King, in appointing the Secretary to Cabinet, shall act on the advice of the Prime Minister after recommendation by the Civil Service Commission.
3. The Secretary to Cabinet shall, in addition to any other functions, which may be conferred by the Prime Minister or by any other law -
a. be chief adviser to the Prime Minister on management systems, structures and organization of Ministries;
b. review and monitor the overall performance of each Ministry in implementing government policies and programmes, including the discharge by the Principal Secretaries of their functions;
c. have charge of Cabinet office and be responsible in accordance with the instructions given by the Prime Minister, for arranging the business and keeping the minutes of the Cabinet and for conveying decisions made in Cabinet to the appropriate authorities.
76: Direction of government departments
1. Where a Minister has been charged with the responsibility for any department of government, the Minister shall be responsible for the policy and general direction and control over such department.
2. Two or more government departments may be placed under the supervision of one Principal Secretary.
77: Principal Secretaries
1. The King, shall appoint Principal Secretaries on the advice of the Civil Service Commission.
2. Subject to the provisions of this Constitution, a Ministry or a department of the Government shall be under the supervision of a Principal Secretary whose office shall be a public office.
78: Attorney-General
1. There shall be an Attorney-General for Swaziland whose office shall be a public office and who shall be appointed by the King acting on the recommendation of the Minister responsible for Justice after consultation with Cabinet.
2. A person shall qualify to be appointed Attorney-General where that person qualifies for appointment as a judge of the superior courts.
3. The Attorney-General shall –
a. be the principal legal adviser to the Government;
b. be ex-officio member of the Cabinet; and
c. represent chiefs in their official capacity in legal proceedings.
4. The Attorney-General shall, whenever requested so to do, advise the King on any matter of law including any matter relating to any function vested in the King by this Constitution or any other law.
5. Without prejudice to the general functions under subsection (3), the functions of the Attorney-General shall be to -
a. draft and sign all Government Bills to be presented to Parliament;
b. draw or peruse agreements, contracts, treaties, conventions and documents, by whatever name called, to which the Government is a party or in respect of which the Government has an interest;
c. represent the Government in courts or in any legal proceedings to which Government is a party;
d. be available for consultations with the Director of Public Prosecutions in terms section 163 (7);
e. assist Ministers in piloting bills in Parliament and provide guidance in legal matters to Parliament.
f. perform such other functions as may be assigned to the Attorney-General by law.
6. The functions of the Attorney-General under subsection (5)(a), (b) (c), (e) and (f) may be exercised by the Attorney-General in person or by subordinate officers acting in accordance with the general or special instructions of the Attorney-General.
7. Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the Government has an interest, shall not be concluded without the legal advice of the Attorney-General in person or by subordinate officers acting in accordance with the general or special instruction of the Attorney- General, except in such cases and subject to such conditions as Parliament may prescribe.
8. In the exercise of the functions vested in the Attorney-General by this Constitution, the Attorney-General shall not be subject to the direction or control of any other person or authority.
9. The Attorney-General shall be disciplined or removed from office by the King in terms of the recommendations following an inquiry by a tribunal consisting of a chairman recommended by the Chief Justice and two other members appointed by the King.
79: Prerogative of Mercy
1. The King may, in respect of a person sentenced to death or life imprisonment –
a. grant a pardon, either free or subject to lawful conditions;
b. grant to any person a respite, either indefinite or for a specified period;
c. substitute a less severe form of punishment for any punishment imposed on any person for such an offence; or
d. remit the whole or part of that sentence, penalty or forfeiture otherwise due to the Government on account of that offence.
2. In the exercise of the powers conferred upon him by subsection (1), the King shall act on the advice of a Committee on the Prerogative of Mercy made up of two persons appointed by the King drawn from the King’s Advisory Council, the Attorney-General, the Minister responsible for justice and a suitably qualified medical practitioner recommended by the Minister responsible for health and appointed by the King..
3. The King shall designate one of the members of the Committee as chairman.
4. The Committee may act notwithstanding any vacancy in its membership or the absence of any member, and the validity of the transaction of business by the Committee shall not be affected by the fact that some person who was not entitled to do so took part in the proceedings.
5. Whenever any person has been sentenced to death by any court in Swaziland other than a court-martial, the chairman shall cause a report on the case by the judge who presided at the trial (or, if a report cannot be obtained from that judge, a report on the case by the Chief Justice), together with such other information derived from the record of the case or elsewhere as the chairman may require, to be taken into consideration at the meeting of the Committee so that the Committee may advise the King whether or not to exercise the powers in terms of subsection (1).
6. The provisions of this section shall not apply in relation to any conviction by a court established under a law of a country other than Swaziland that has jurisdiction in Swaziland in pursuance of arrangements made between the Government of Swaziland and another Government or an international organization relating to the presence in Swaziland of members of the armed forces of that other country or in relation to any punishment imposed in respect of any such conviction or any penalty or forfeiture resulting from any such conviction.
7. Nothing in this section shall be construed as precluding an Act of Parliament from making provision of general application under which any sentence of imprisonment shall be reduced where such conditions (being conditions relating to good behaviour by the person on whom the sentence was imposed whilst serving that sentence) as are prescribed are fulfilled.
CHAPTER VIII THE LEGISLATURE
Part 1(a)
System of Government
80: System of government
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.
81: Tinkhundla
1. (1) For purposes of political organisation and popular representation of the people in Parliament, Swaziland is divided into several areas called tinkhundla.
2. (2) An inkhundla _
a. is established by the King on the recommendation of the Elections and Boundaries Commission;
b. consists of one or more chiefdoms which act as nomination areas for the elected members of the House (the primary level elections);
c. is, among other things, also used as a constituency for the election of the elected members of the House (the secondary level elections).
3. The tinkhundla units or areas, inspired by a policy of decentralisation of state power, are the engines of development and the central pillars underpinning the political organisation and economic infrastructure of the country through which social services to the different parts of the Swazi community are facilitated and delivered.
82: Bucopho (Inkhundla Committee)
1. An inkhundla, as a local authority area, is under the general administration of an executive committee called Bucopho.
2. Bucopho consists of persons elected from the chiefdoms or polling divisions within an inkhundla.
3. Bucopho operates under the chairmanship of the elected member of Parliament who supervises the activities of the inkhundla and also convenes and presides over meetings of the inkhundla.
4. An inkhundla represented by the bucopho has a corporate status and may perform acts as bodies corporate may perform.
83: Regional Administration
1. Swaziland is divided into four administrative Regions, namely, Hhohho, Lubombo, Manzini and Shiselweni.
2. Each Region is divided into as many tinkhundla as may be recommended by the Elections and Boundaries Commission.
3. Each Region has a Regional Council consisting of persons nominated by each inkhundla in that Region from among the Bucopho members in the Region.
4. A Regional Council shall advise the Regional Administrator, on the administration of the Region and coordinate social and economic development of the Region and perform such other functions within the Region as may be prescribed.
5. A Regional Council may be subdivided into portfolio committees.
84: Regional Administrator
1. Each Region is headed by an administrative official called the Regional Administrator.
2. The Regional Administrator is appointed by the King on the advice of the Minister responsible for tinkhundla from among the members of the House such that at least half of the Regional Administrators are elected members of the House.
3. The Regional Administrator shall convene and preside over meetings of the Regional Council and perform such other functions as may be prescribed.
4. A Regional Administrator has the status of a deputy minister and has such other benefits and privileges as may be prescribed.
5. A Regional Administrator may resign from office or be removed from office by the King on the advice of the Cabinet or after a resolution of no confidence passed by the Regional Council.
Part 1(b)
Representation of the people
85: Right to representation
1. Subject to the provisions of this Constitution, the people of Swaziland have a right to be heard through and represented by their own freely chosen representatives in the government of the country.
2. Without derogating from the generality of the foregoing subsection, the women of Swaziland and other marginalized groups have a right to equitable representation in Parliament and other elective public structures.
86: Right to vote at elections
1. Subject to the provisions of this Constitution, every Swazi or person ordinarily resident in Swaziland has a right to vote at any election of members of the House or members of the Bucopho.
2. A person is not entitled to vote in terms of subsection (1) if that person is for any reason unable to attend in person at the place and time prescribed for polling except as it may otherwise be prescribed.
3. A person shall not vote at any election in terms of this section except at an inkhundla where that person is registered as a voter unless a special polling arrangement has been prescribed.
4. A person is not entitled to stand as a candidate for election in terms of this section or section 87 unless that person is registered as a voter in that inkhundla or Region.
87: Representation of women
1. Where at the first meeting of the House after any general election it appears that female members of Parliament do not constitute at least thirty percentum of the total membership of Parliament, then, and only then, the provisions of this section shall apply.
2. For the purposes of this section, the two chambers of Parliament shall form an electoral college and elect four women on a regional basis to the House in accordance with the provisions of section 96(3).
88: Election by secret ballot
1. The election of persons to any chamber of Parliament or Bucopho shall be by secret ballot at both primary and secondary levels or any other level in accordance with the first-past-the-post system in which the person receiving the highest number of votes is elected.
2. For the purposes of subsection (1), the votes shall be cast in ballot boxes of a design calculated to ensure efficiency and reliability.
3. Notwithstanding the principle of secrecy, a voter who is handicapped may be assisted in casting the vote.
4. All nominations for Bucopho, or member of Parliament shall be open and supported by at least ten persons qualified to vote in that inkhundla.
5. At the primary level, there shall be no canvassing for votes as persons are nominated (that is, invited to serve) on the basis of their being known to that community.
6. For purposes of this section, nomination or election at “primary” or “secondary” level means nomination or election of the elected member of Parliament or Bucopho as the case may be at the level of chiefdom or polling division or inkhundla respectively.
89: Qualification as a voter
1. Subject to the provisions of section 90, a person is qualified to be registered as a voter if, and is not otherwise qualified unless, that person has attained the age of eighteen years and is a citizen of or is ordinarily resident in Swaziland.
2. A person qualified for the purposes of this section is entitled to be registered as a voter in one inkhundla only.
3. A person is “ordinarily resident” in Swaziland where that person has lived in, or has been associated with, that inkhundla for a period of not less than five years or is permanently resident in Swaziland and has relevant documents to that effect.
90: Disqualification as a voter
A person is not qualified to be registered as a voter or to vote where that person _
a. is certified to be insane or otherwise adjudged to be of unsound mind under any law for the time being in force in Swaziland;
b. is, for an act which is a criminal offence under the law of Swaziland, under sentence of death or life imprisonment imposed on that person by a court in any country; or
c. is disqualified for registration as a voter under any law for the time being in force in Swaziland relating to offences connected with elections.
Part 1 (c)
Elections and Boundaries Commission
91: Elections and Boundaries Commission
1. There shall be an independent authority styled the Elections and Boundaries Commission (“the Commission”) for Swaziland consisting of a chairman, deputy chairman and three other members.
2. The members of the Commission shall be appointed by the King on the advice of -
a. as to the chairman and deputy chairman, the Judicial Service Commission;
b. as to the other members, the Minister responsible for elections after consultation with the Minister responsible for local government.
3. A person shall not be appointed member of the Commission where that person –
a. is a member of Parliament;
b. is or has been in the last five years actively engaged in politics;
c. is a public officer other than judge of a superior court or magistrate;
d. is an unrehabilitated insolvent;
e. has been convicted of an offence involving dishonesty in any country during the last ten years.
4. A person shall be deemed to be “actively engaged in politics” or to have been so engaged during the relevant period or any part of that period where that person _
a. is or was at any time during that period a member of the House or a Senator;
b. is or was at any time during that period, nominated as a candidate for election to the House or Bucopho Committee; or
c. is or was at any time during that period the holder of an office in any organisation that sponsors or supports or has at any time sponsored or supported a candidate for election as a member of the House or Bucopho committee.
5. The members of the Commission shall be appointed for a period not exceeding twelve years without the option for renewal.
6. The chairman, deputy chairman and the other members of the Commission shall possess the qualifications of a Judge of the superior courts or be persons of high moral character, proven integrity, relevant experience and demonstrable competence in the conduct of public affairs.
7. The functions of the Commission shall be _
a. to oversee and supervise the registration of voters and ensure fair and free elections at primary, secondary or other level;
b. to facilitate civic or voter education as may be necessary in between elections;
c. to review and determine the boundaries of tinkhundla areas for purposes of elections;
d. to perform such other functions in connection with elections or boundaries as may be prescribed;
e. to produce periodic reports in respect of work done.
8. Three members of the Commission including either the chairman or deputy chairman shall constitute a quorum.
9. A member of the Commission shall not enter upon the duties of that Commission until that member has taken and subscribed the oath of allegiance and oath for the due execution of office that are set out in the Second Schedule.
10. The provision of this Constitution relating to the removal of judges of the superior courts from office shall, subject to any necessary modifications, qualifications or adaptations, apply to the removal from office of the chairman and other members of the Commission.
11. The office of any member of the Commission shall become vacant where that member resigns or circumstances arise that would disqualify that member for appointment as such.
12. If before the Commission has submitted its report under section 93 the office of chairman or any other member of the Commission falls vacant or the holder of that office becomes unable for any reason to discharge the functions as chairman or member of the Commission the King shall appoint another person to be chairman or member as provided under subsection (2).
13. In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of any other person or authority.
92: Review of tinkhundla boundaries
1. During the fourth year of Parliament, the Elections and Boundaries Commission shall review the number and boundaries of tinkhundla (constituencies) into which Swaziland is divided and submit to the King a report with recommendations to change or retain the existing position.
2. The report under this section shall be made at least nine months before the dissolution of Parliament in terms of section 135(2).
3. The boundaries of each inkhundla shall be such that the number of inhabitants of an inkhundla is as nearly equal to the population quota as is reasonably practicable having regard to the terrain, the means of communication (transport) within that inkhundla and any other relevant community interest.
4. The boundaries of an inkhundla shall not extend over more than one Region.
5. In this section “population quota” means the number obtained by dividing the number of inhabitants of the Region (as ascertained by reference to the latest national population census) by the number of tinkhundla into which the Region is to be divided under section 81.
93: Report of the Elections and Boundaries Commission
1. The Commission shall as soon as practicable after every election produce and submit a report on that election to the minister responsible for elections, stating _
a. the general conduct of the elections and the number of voters who participated;
b. any irregularities or abnormalities observed;
c. whether any nomination or election was disputed and with what result;
d. any observed or remarkable peculiarities;
e. recommendations, if any.
2. The report of the Commission in terms of section 92 shall state, among other things, whether -
a. any alteration is necessary to the boundaries of any inkhundla;
b. any one additional inkhundla or more should be established; or
c. any inkhundla should be abolished or merged with any other.
3. The report of the Commission under section 92 shall also contain the proposed boundaries of the affected inkhundla or tinkhundla.
4. The King shall as soon as practicable after the submission of the report of the Commission and in any event not later than six months before the dissolution of Parliament in terms of section 135(2), by proclamation in the Gazette declare the boundaries of an inkhundla or tinkhundla as delimited by the Commission to be effective at the next dissolution of Parliament or so soon thereafter as may be convenient for the next general elections..
Part 2 Composition of Parliament
94: Parliament
The Parliament of Swaziland shall consist of a Senate and a House of Assembly.
95: Senate
1. The Senate shall consist of not more than thirty-one members (in this Constitution referred to as “Senators”) who shall be elected or appointed in accordance with this section.
2. Ten Senators, at least half of whom shall be female, shall be elected by the members of the House at their first meeting so as to represent a cross_section of the Swazi society.
3. Twenty Senators, at least eight of whom shall be female, shall be appointed by the King acting in his discretion after consultation with such bodies as the King may deem appropriate.
4. The Senators appointed in terms of subsection (3) shall be persons who, in the opinion of the King –
a. are able by reason of their special knowledge or practical experience to represent economic, social, cultural/traditional or marginalized interests not already adequately represented in Parliament; or,
b. are by reason of their particular merit, able to contribute substantially to the good government and progressive development of Swaziland.
96: House of Assembly
1. Subject to the provisions of this Constitution, the House of Assembly shall consist of not more than seventy-six members composed as follows –
a. not more than sixty members elected from tinkhundla areas serving as constituencies;
b. not more than ten members nominated by the King acting in his discretion after consultation with such bodies as the King may deem appropriate;
c. four female members specially elected from the four Regions subject to subsection (3);
d. the Attorney-General who shall be an ex officio member.
2. The nominated members of the House shall be appointed by the King _
a. so that at least half of them are female; and
b. so as to represent interests, including marginalized groups, not already adequately represented in the House.
3. The members elected on a regional basis, under subsection (1)(c), shall continue to be so elected, whenever the provisions of section 87 (1) are true, in terms of the following paragraphs _
a. at the instance of the Elections and Boundaries Commission, the elected members from each Region shall on their first meeting nominate not less than three and not more than five women from each Region qualified to be members of Parliament;
z. the list of nominated candidates shall be published in at least two local newspapers and the electronic media on at least three consecutive days and the public may make comments on the suitability, representativity or otherwise of the candidates;
aa. after two weeks from the date of last publication the two Houses shall meet to vote for one woman from each of the Regions, taking into consideration any relevant in-put in terms of paragraph (b).
97: Qualifications for membership of Parliament
Subject to the provisions of this Constitution, a person qualifies to be appointed, elected or nominated, as the case may be, as a Senator or a member of the House if that the person –
a. is a citizen of, or ordinarily resident in, Swaziland;
b. has attained the age of eighteen years and is a registered voter;
c. has paid all taxes or made arrangements satisfactory to the Commissioner of Taxes; and
d. is registered as a voter in the inkhundla in which that person is a candidate (in the case of elected members)
98: Disqualifications for membership of Parliament
1. Notwithstanding the provisions of section 97, a person does not qualify to be appointed, elected or nominated as the case may be, a Senator or member of the House if that person –
a. has been adjudged or otherwise declared-
i. insolvent under any law and has not been rehabilitated; or
ii. to be of unsound mind;
bb. is under sentence of death or of imprisonment for more than ten years for an act which is a criminal offence in Swaziland;
cc. is a member of the armed forces of Swaziland or is holding or acting in any public office and has not been granted leave of absence for the duration of Parliament;
dd. is not qualified to be voter under any provision of this Constitution;
ee. is otherwise disqualified by law in force in Swaziland relating to general elections;
ff. has been found to be incompetent to hold public office under any law relating to tenure of public office whether elected or not;
gg. is a party to, or is a partner in, a firm or a director or manager, of a company which is a party to any subsisting Government contract and has not made the required disclosure of –
i. the nature of the contract;
ii. the interest of that person in the contract;
iii. the interest of that firm or company in the contract;
hh. holds or is acting in any office the functions of which involve any responsibility for or in connection with the conduct of any election or the compilation or a revision of any electoral register.
2. For the purposes of subsection (1)(g), the required disclosure shall be _
a. in the case of an elected Senator, to the elected members of the House through the Speaker of the House soon after the election;
b. in the case of an appointed Senator or nominated member of the House, to the King through the President of the Senate or the Speaker of the House as the case may be soon after appointment is made;
c. in the case of an elected member of the House, during the period commencing with the writ for election in the Gazette and ending three days before the date of the election by publication of a notice in English in the Gazette and in English and Siswati in a newspaper circulating in Swaziland.
3. Any disclosure made in terms of subsection 1(g) shall be posted conspicuously for a period of at least one month within the Parliament building.
4. In this section “Government contract” means any contract with the Government for or on any account of the public service the consideration for which exceeds five thousand Emalangeni or such other amount as Parliament may prescribe or which forms part of a larger transaction or series of transactions in respect of which the amount or value or the aggregate amount or value of the transaction exceeds five thousand Emalangeni.
99: Tenure of seats of members of Parliament
1. The seat of a Senator or of a member of the House shall become vacant where _
a. Parliament is dissolved;
b. the holder of that seat resigns in writing addressed to the President or the Speaker or the Clerk to Parliament;
c. the holder is absent from twenty sittings of the chamber during any meeting of that chamber without the permission in writing of the presiding officer and is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges;
d. the holder is recalled from Parliament by a resolution of the inkhundla of that holder in terms of any law providing for recall;
e. circumstances arise that would cause the holder to be disqualified or ineligible for election or appointment to Parliament;
f. the holder is expelled by resolution of a chamber for contempt of Parliament;
g. the holder becomes a member of the other chamber of Parliament;
h. the holder becomes a party to any Government contract contrary to section 98 (1) (g).
2. If in the circumstances it appears to them to be just to do so, the Senate or the House as the case may be, may by resolution exempt the holder of a seat from vacating the seat as required under subsection (1) (h) where the holder before becoming a party to the contract or before or as soon as practicable after becoming otherwise interested in the contract discloses to the President or the Speaker as the case may be the interest of that holder.
100: Vacation of seat on sentence, etc
1. Where a member of the Senate or the House is for an offence which is a criminal offence in Swaziland sentenced by a court in any country to death or imprisonment (by whatever name called) for a term of or exceeding six months, including a suspended sentence, that member shall forthwith cease to be such a member and the seat of that member shall become vacant at the expiration of a period of sixty days from date of that sentence.
2. The provisions of subsection (1) shall not apply where before the expiration of the period of sixty days the member receives a free pardon or the conviction is set aside or the sentence is reduced to a term of less than six months or a punishment other than imprisonment is substituted.
3. Where in terms of subsection (2) the sentence of the member has been reduced to a term less than six months but more than two months the member shall be deemed to have been suspended by the Senate or House as the case maybe for the duration of the effective term of imprisonment unless the concerned chamber resolves otherwise.
101: President of Senate
1. When the Senate first meets after any general election, and before it proceeds to despatch any other business, it shall elect, from within the Senate or outside the Senate, a person to be the President of the Senate in accordance with the Standing Orders.
2. Where the office of the President falls vacant at any time before the next dissolution of Parliament the Senate may elect as soon as practicable another person to the office of President.
3. A person shall not be elected President unless that person has some parliamentary experience and is otherwise able to maintain order in the Senate and properly guide the Senators in their business in terms of the Standing Orders.
4. A person shall not be elected President from outside the Senate unless that person qualifies in terms of this Constitution to be elected or appointed as a Senator.
5. A person shall not hold the position of President of Senate and that of a Cabinet Minister simultaneously.
6. The salary and other allowances payable to the President shall not be varied to the disadvantage of the President during tenure of office.
7. The office of President shall become vacant _
a. where the President resigns in writing addressed to the Clerk to Parliament;
b. where the Senate passes a resolution by not less than two thirds of all its members to that effect;
c. where circumstances arise which would render that President disqualified or ineligible to be a Senator under this Constitution or any other law; or
d. where the President for any reason ceases to be a member of the Senate.
8. The person elected President of Senate shall not enter upon the duties of the office unless that person has taken and subscribed before the Senate the oath of allegiance set out in the Second Schedule.
102: Deputy President of Senate
1. The Deputy President of Senate shall be elected from among the Senators at the first meeting of the Senate after any general election or whenever such office has become vacant, in accordance with the Standing Orders.
2. The Deputy President shall perform the functions of the President whenever the President is absent or is for any reason unable to perform the functions of that office or when the President authorises the Deputy to do so.
3. The provisions of section 101(5), (6), (7) and (8) shall apply to the office of the Deputy President as they apply to the office of President.
4. The office of Deputy President shall also become vacant where the Deputy is elected President of the Senate.
103: The Speaker of the House
1. When the House of Assembly first meets after any general election and before it proceeds to the despatch of any other business, it shall elect a person from within or outside the House to be the Speaker of the House of Assembly, in accordance with the Standing Orders.
2. Where the office of Speaker falls vacant at any time before the next dissolution of Parliament, the House may elect as soon as practicable another person to that office.
3. A person shall not be elected Speaker of the House unless that person has some parliamentary experience and is otherwise able to maintain order in the House and properly guide the members of the House in the discharge of the business of the House in terms of the Standing Orders.
4. A person shall not be elected Speaker from outside the House if that person would be disqualified to be a member of the House under this Constitution or any other law.
5. A person elected shall not hold the position of Speaker of the House and that of a Cabinet Minister simultaneously.
6. The salary and other allowances payable to the Speaker shall not be varied to the disadvantage of the Speaker during the tenure of office.
7. The office of Speaker of the House shall become vacant where _
a. the Speaker resigns in writing addressed to the Clerk to Parliament;
b. the House passes a resolution by not less than two-thirds of all its members to that effect;
c. any circumstance arises which would render the Speaker disqualified or ineligible to be a member of the House under this Constitution or any other law; or
d. for any reason the Speaker ceases to be a member of the House.
8. The person elected Speaker of the House shall not enter upon the duties of the office unless that person has taken and subscribed the oath of allegiance set out in the Second Schedule.
104: Deputy Speaker of the House
1. When the House first meets after any general election it shall elect from among the members of the House a person to be Deputy Speaker of the House of Assembly.
2. Where the office of Deputy Speaker falls vacant at any time before the next dissolution of Parliament the House may elect as soon as practicable another person to that office.
3. The provisions of section 103 (5), (6), (7) and (8) shall apply to the office of Deputy Speaker as they apply to the office of Speaker.
4. The office of Deputy Speaker shall also become vacant where the Deputy is elected Speaker of the House.
105: Acting President and Speaker
1. Where the office of President or Deputy President is vacant or the holder of the office of President or Deputy President is for any reason unable to perform the functions of that office, the Senate may elect a person (not being a Minister) from among the members of the Senate to act as President until the President or Deputy President has been elected or as the case may be, the President or Deputy President has resumed the functions of that office.
2. Where the office of Speaker or Deputy Speaker is vacant or the holder of the office of Speaker or Deputy Speaker is for any reason unable to perform the functions of that office the House may elect a person (not being a Minister) from among the members of the House to act as Speaker until the Speaker or Deputy Speaker is elected or, as the case may be, the Speaker or Deputy Speaker has resumed the functions of that office.
3. The provisions of sections 101 (5),(6), (7) and (8) and 103 (5),(6),(7) and (8) shall apply in relation to a person elected under this section as they apply in relation to the holder of the office of President or Speaker.
106: Decision as to membership of Parliament
1. The High Court shall have jurisdiction to hear and determine any question whether –
a. any person has been validly elected or appointed as a Member of Parliament;
b. any person has been validly elected as President, Deputy President, Speaker or Deputy Speaker; or
c. any person, having been validly elected as President, Deputy President, Speaker or Deputy Speaker, has validly vacated that office.
2. A person aggrieved by the determination