LLB, LLM Candidate (UNISA).
Attorney of the Courts of Eswatini
Legal Clinic Principal at the University of Eswatini
The Kingdom of Eswatini was almost wiped away by the HIV/AIDS pandemic. It was, therefore, important for the country to act swiftly to contain COVID-19 before it repeats the devastating experience of HIV-AIDS. In doing so, some fundamental human rights and freedoms were compromised in the process. This article seeks to interrogate and discuss Eswatini’s response to the COVID-19 and its effect to constitutionalism.
Once the first case of COVID-19 was reported on 14 March 2020, Eswatini introduced emergency measures to contain the spread of the virus, as per the powers granted under the Constitution in the event of emergency. Government responded quickly by temporarily limiting personal freedoms guaranteed by the Constitution, thus disrupting the constitutional dispensation. As of 16 May 2020 Eswatini, had a total of 190 COVID-19 cases with two deaths and 66 recoveries. The number of infections is worrying in view of the fact that Eswatini is a country with a population slightly over one million, with an HIV-prevalence rate of 27 per cent.
Constitutional and legal framework
Eswatini adopted a new constitution in 2005 (the Constitution) ending almost a 33-year-old rule by a royal decree. The Constitution has a bill of rights in which fundamental human rights and freedoms are protected and guaranteed. Eswatini is a unique country in that the King is a Head of State while the Prime Minister is the Head of Government reporting directly to the King. Since political parties in Eswatini are banned and are not allowed to contest for power, the Prime Minister is appointed by the King. Section 79 of the Constitution states that: -
The system of Government for Eswatini 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
The Constitution in terms of section 64(4)(e) gives the King, the responsibility to declare a state of emergency. The Constitution in terms of section 36(1) further gives the King authority to declare a state of emergency on the advice of the Prime Minister. Section 36(2)(b) of the constitution provides that. ‘The provisions of subsection (1) shall not apply and a proclamation shall not be issued under that subsection and were issued that proclamation shall not be effective in law unless… (b) There is in Eswatini a natural disaster or imminent threat of a natural disaster.’ The Constitution does accept the limitations of certain rights in case of an emergency. However, in section 38 prohibits certain derogations;
Prohibition of certain derogations.
38. Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms —
(a) life, equality before the law 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 35(1); and
(e) freedom from torture, cruel, inhuman or degrading treatment or punishment
The enjoyment of rights and protection of civil liberties as well as freedoms of the individuals, enshrined in the bill of rights is limited due to the clawback clause. The rights given are subject to limitations, the effect of which is to undermine the very rights the Constitution seeks to protect and guarantee. The Disaster Management Act, 2006 (the Act) provides for the establishment of the National Disaster Management Agency (NDMA) a parastatal under the Deputy Prime Minister’s Office – being the Minister responsible for disasters in Eswatini, to coordinate national preparedness and response to the various risks and disasters that occur in the country. The Act provides for a decentralized response mechanism and promotion of sectoral approach in disaster risk management. The Act also provides for a participative approach to risk management.
It is often said that when South Africa sneezes Eswatini, catches flu. This is due to geopolitics and due to the fact that Eswatini largely relies on South Africa, economically. Both countries are members of the Southern African Customs Union (SACU). Eswatini’s national budget is largely dependent on the SACU receipts. Just after the South African President Cyril Ramaphosa announced a national lockdown, Eswatini followed promptly as the Prime Minister, Ambrose Mandvulo Dlamini, on Friday 27 March 2020 announced a partial lockdown. During the announcement, Prime Minister Dlamini stated that he had been commanded by his Majesty the King to do so, yet the Act does not make reference to His Majesty. The Act enjoins the Prime Minister alone to announce a state of National or Regional disaster after consulting the Minister, that is the Deputy Prime Minister, and the National or Regional Disaster Management Council (the Council) established in terms of section 8 of the Act.
The effects of the lockdown were that domestic travel restrictions imposed, non-essential travel between towns, cities and regions were banned except for food transportation and medical reasons. Unlike South Africa, Eswatini has no provinces but has four administrative regions. Public transportation would only operate for essential movement and only during restricted hours. Initially, gatherings of no more than 20 individuals were permitted, but when the lockdown was pronounced, all gatherings including congregating for prayer are prohibited, with the exception of funerals that were capped at 20 people attending. Security forces were deployed to enforce the lockdown (consisting of the army, the Police and Correctional Services). Movement in Eswatini was thus limited despite the fact that the lockdown, as announced, did not prohibit buying of food and household necessities.
Flowing from the decision to lockdown the kingdom, the National Commissioner of Police, William Dlamini, imposed further travel restrictions requiring people to have letters of permission to be travelling. While in terms of section 10 (1) (d) of the Act the Commissioner of Police or a person appointed by him is a member of the National Disaster Management Council he has no power in terms of the Act to make any pronouncements on national disaster. The Commissioner stated that drivers will be questioned about the purpose of their journey and if they did not have a valid reason they would be turned back. The National Commissioner announced that police will not recognize letters from traditional leaders such as community headman or chief’s offices, as well as local authorities. Instead, they would only recognize letters from employers, for medical attention and those that are in essential services. It is not clear where Commissioner of Police derived powers to impose such restrictions as in terms of the relevant legislation such powers lie with the Prime Minister. Therefore, the National Commissioner in imposing the said restrictions acted ultra vires and went afoul of the Constitution.
Due to the massive internal repression in Eswatini based on the political system security forces are generally brutal. There were reported incidents of people being harassed and beaten for travelling to town for one reason or another. The brutality contradicts some of the measures put in place that allow people to go out only for essential purposes, such as buying food and medication. There right to privacy of people was also grossly violated by the security forces as people taking chronic medication were required to produce their medical cards. People Living with HIV, for example, were forced to produce their cards as proof that their date of refill of the ARVs was due. The actions of the security personnel were unlawful as its net effect was to force people to disclose their HIV status against their will. The right to privacy is constitutionally guaranteed and protected.
Access and administration of justice in times of the COVID-19 pandemic
Sections 138 and 141 of the Constitution proclaim the independence of the judiciary. However, the constitutional and legislative framework does not respect the separation of powers nor does it provide the necessary safeguards for the independence of the Judiciary. The Eswatini courts are faced with the mammoth task of applying the Constitution to eliminate deeply entrenched human rights violations, which can be traced back to the colonial era. The fact that the King’s Proclamation to the Nation remains unrepealed, neither by way of a court decision nor by any other legislative means, signifies that political rights will remain in limbo until a progressive court interprets the Constitution to strike down that royal decree.
The rule of law is weak in Eswatini, and the country has a long history of disregard for the independence of the Judiciary and violations of human rights including the right to a fair trial. The Chief Justice, Bheki Maphalala, and the Law Society of Swaziland (LSS) have been at loggerheads for quite some time on the administration of Justice in Eswatini. For some time, the LSS has been seen by the head of the judiciary as a rabble-rouser that needed to be dealt with. It was expected at least that they would see eye to eye at the outbreak of the pandemic.
However, that was not to be as the LSS was of the view that lawyers are not an essential service hence they had to observe the lockdown – the court be only opened for extremely urgent and maintenance matters. The Chief Justice, on the other hand, issued a Practice Directive No. 02 of 2020 in which he stated that court sessions would continue undisturbed, despite the outbreak of the pandemic. He hastened to add that caution must be taken including sanitizing, social distancing as well as a courtroom not having more than 50 people. However, this was difficult to observe as motion court, for instance, is generally overcrowded, thus putting lawyers, litigants and witnesses at risk.
In one matter it was reported that a judge of the High Court refused to postpone a matter citing a directive from the Chief Justice for refusing to do so. The Chief Justice is reported to have told judges that it was unacceptable to postpone matters on condition of the coronavirus. This was disclosed by Judge John Magagula in court on Wednesday 1 April 2020. Judge Magagula reportedly told the attorneys that the Chief Justice had called them (judges) and specifically stated that no matter should be postponed on condition of the Coronavirus.
While the actions of the Chief Justice ensured that people continue to access justice at the face of the pandemic his actions did put people at risk. The Industrial Court of Appeal session scheduled to run from 6 April to 8 May 2020 also proceeds as normal. It is worth mentioning that no matter was brought before the courts challenging the lockdown or any of its regulations, but quite a number of people were brought before the court for contravening the lockdown regulations.
Parliamentary oversight: A pipe dream
Parliament in Eswatini is not autonomous and oversight is insufficient as the King is the supreme legislator which therefore reduces Parliament’s ability to hold the executive accountable. The main problem is that the executive is appointed by the King and it is assumed that in whatever they do they act on the instructions of the King. Therefore, to challenge the executive or to attempt to hold the executive accountable is seen as a direct affront to the King’s power and authority. Former Chief Justice, the late Michael Ramodibedi, once issued a practice directives to all judges and registrars of courts, not to entertain matters in which the King was cited. Given this edict, it is highly probable that judges might have engaged in self-censorship, especially in dealing with constitutional challenges, which are largely viewed as an attack on the King himself. Parliament in Eswatini is different in that in terms of section 106 of the constitution states that:
Subject to the provisions of this Constitution —
(a) the supreme legislative authority of Swaziland vests in the King-in-Parliament;
(b) the King and Parliament may make laws for the peace, order and good Government of Swaziland
In essence, the King has power over parliament which means the Parliamentarians have little or nothing they can do to hold the executive accountable.
The COVID-19 pandemic has shown once again that rights are by their nature not absolute. In a constitutional democracy which Eswatini claims to be, they can be lawfully limited, provided the limitation passes the test in section 37 of the Constitution. This includes the principle of proportionality. In essence, this means that the government may only use a least restrictive measure for achieving its aim, one that causes the least damage to the protected rights and interests.
Similarly, the regulations issued in a national disaster must comply with the provisions of the bill of rights. A court can declare specific regulations unconstitutional if they impose limitations on rights in a way not justified by the limitation where there is a legitimate interest in restricting rights of access to a court, provided the limitation is not disproportionately restrictive and such measures are temporary. Laws and regulations limiting individual rights should be proportional to the injury identified. They should also be designed in such a way that they do not encroach on other rights. Once the COVID-19 harm has been contained or restrained, the need for the limitation of freedoms will also diminish.
The COVID-19 regulations cover an array of measures considered to be necessary to prevent the spread of the virus, but it limits freedoms and fundamental rights contained in the bill of rights.