Countries at the Crossroads 2007 - Swaziland

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

There is no tradition of democracy in Swazi politics. Since Swaziland emerged as a state in the early 19th century, Swazi political culture has been authoritarian, with power centralized in a hereditary monarchy, and the nation's politics and economy dominated by the royal lines of the Dlamini clans. The late colonial period and the first five years of independence introduced some choice and party-political competitiveness into the polity, but this ended in 1973 with the suspension of the independence constitution and the proscription of political parties.

Swaziland's political regime is a diarchic one, with two distinct but interrelated sets of institutions: those of the Swazi nation (the monarchy and its key advisory institutions); and those of the Swazi government, comprising the cabinet, parliament, and judiciary. It was in the latter that Britain vested constitutional authority at independence in 1968. However, then-King Sobhuza II was able to circumvent this dilution of his traditional authority by forming a political party, the Imbokodvo National Movement, which won all parliamentary seats in elections leading up to independence in 1968. Thus, although not a member of the legislature himself, Sobhuza was able to ensure that the body enacted no legislation of which he did not approve. The king's domination of the post-independence power arrangement was articulated by then-prime minister Prince Makhosini Dlamini, who stated "It is the king, not I, who leads the people."¹ This is the central principle of Swazi political life, and to challenge it is regarded by the ruling elite as treasonable.

This period of post-independence one-party rule gave way to no-party rule in 1973, when Sobhuza responded to an opposition group winning 3 out of 28 seats in the first elections held after independence and a successful high court challenge of controversial immigration legislation by abrogating the constitution. A state of emergency was declared (which de jure persists today, more than 34 years later), a detention-without-trial provision was introduced, parliament was dissolved, and all political parties, even the royalist Imbokodvo Movement, were banned. In an address to the Swazi people, Sobhuza justified his actions by declaring that the independence constitution was incompatible with Swazi tradition as it had "permitted the imposition into our country of highly undesirable political practices, alien and incompatible with the way of life in our society, and designed to disrupt and destroy our own peaceful and constructive and essentially democratic method of peaceful political activity."²

What Sobhuza was targeting as "undesirable" and "alien" was the political party as an institution. His words remain salient today, as they essentially inform the view of his successor, Mswati III, and his advisers. This group regards political parties as un-Swazi and incompatible with their concept of tradition. Therefore, to concede to the Swazi people the right to freely organize themselves politically would involve an ideological paradigm shift on the part of the monarchy.

Since 1973, Swaziland has functioned as a near-absolute monarchy. In 1996, the king appointed a constitutional review commission that five years later reported, without supporting evidence, that the Swazi nation preferred no change to the political status quo. The king then appointed a group headed by one of his brothers to draft a new constitution. This was unveiled in 2004, proposing a continuation of the monarchy's supreme executive, legislative, and judicial powers as well as the ban on political parties. Despite representations from a number of individuals and organizations objecting to the draft, in June 2005 the Swazi parliament adopted, with only minor changes, the document as proposed by the review committee. King Mswati III signed the constitution into law on July 26, 2005, announcing it would come into force six months hence. It took effect on February 7, 2006. It was anticipated that the king would then promulgate the repeal of the emergency proclamation of April 12, 1973, but he did not. Thus, a nine-year review process costing several million dollars resulted in basically nothing changing politically and with the king retaining absolute powers.

Swaziland is confronted by a human disaster of alarming proportions in the form of one of the highest, if not the highest, HIV/AIDS infection rate in the world. According to a 2005 survey by the Swazi Ministry of Health, the proportion of sexually active adults between the ages of 19 and 49 infected with HIV/AIDS was 42.6 percent in 2004, with the rate as high as 56 percent in the 25-to-29 age category. A follow-up survey in 2006 found that the figure had dropped to 39.2% for those between 19 and 49 years of age in 2005.³

With an economy performing weakly (growth in 2006 is estimated to have been at 2%, consistent with the rate over the past five years) while levels of corruption continued to rise along with government expenditure, food prices and unemployment levels, prime minister Themba Dlamini admitted in his 2007 New Year's message that Swaziland had an "increasingly negative international image".⁴

Accountability and Public Voice – 1.88

Free and fair electoral laws and elections: 0.25
Effective and accountable government: 1.75
Civic engagement and civic monitoring: 3.00
Media independence and freedom of expression: 2.50

Politically, Swaziland is an absolute monarchy with executive, legislative, and some judicial powers vested in the king, although there is a partially elected but thoroughly subordinated parliament. As noted above, a constitutional review process originally touted as reformist concluded with an affirmation of the political status quo. At the time of the draft's publication in 2004, the public was invited to comment on it, but only as private individuals and not as representatives of organized groups. Thus, local groups highly critical of the dispensation in Swaziland, like the Swazi Federation of Labor, the Swaziland Youth Congress (SWAYOCO) and human rights groups, were excluded from the process. Instead, four local groups coalesced as the National Constitutional Assembly and applied to the High Court for the draft to be set aside. While the court accepted the case, it eventually ruled against the group.

The promulgation of the constitution in July 2005 led to another round of critical comment from, among others, the British Trades Union Congress, the International Confederation of Free Trade Unions, the Congress of South African Trade Unions (COSATU), and the South African Communist Party. In early 2006, both the British High Commissioner to Swaziland and the Dutch ambassador strongly criticized the political system in Swaziland when presenting their diplomatic credentials to the king. Britain's Paul Boateng stated that "corruption, violence, intimidation and torture have no place in the new Africa of the 21st century. It is on issues such as these that the reputation of Swaziland rests."⁵

The draft constitution proposed no changes to the electoral system, but there seems to be some confusion around the status of political parties under the new charter. While the king has never repealed the 1973 emergency proclamation banning political parties, he is reported to have stated in April 2006 that the decree had lapsed when the constitution came into force in February. Days later, however, he told the international press that the country was "not ready for political parties." In May, the attorney-general stated that the constitution did not "disallow political parties because it did not address the issue, but that the Swazi people were not yet ready for them."⁶

Parliamentary elections are held every five years. These are conducted in terms of a traditional tinkundhla system: Candidates run only as individuals and not as representatives of any party or grouping. The number of candidates per constituency is limited to three, and their nomination is subject to a local screening process. This is conducted in public by a show of hands by the local chiefs in the area. The franchise is open to all adults over the age of 18, and votes are cast by secret ballot.

Despite the democratic form of this electoral process, Swazi elections do not conform fully to the now widely accepted "free and fair" criteria for democratic elections. The ban on party political activity limits the range of political choice. So does the local screening process, which inevitably results in a majority of candidates linked or sympathetic to the royalist structure. Finally, balloting is for only 55 of the 95 parliamentary seats. This means that 42 percent of legislative seats are non-elective and are the prerogative of the king himself. Thus, even in the unlikely case that a majority of elected members turned out to be reformists, their capacity for change would be neutralized by the nominated bloc of royalist-aligned members of parliament. Under current circumstances, therefore, a lawful or constitutional change in power in Swaziland is unlikely, if not impossible. Given that the executive branch of government, in the form of the monarchy, conceptualizes itself as not subject to statutory laws, there are obvious limitations on the capacity of the judicial and legislative branches to oversee the executive branch.

Recruitment into the civil service is largely by merit, and a high proportion of public servants hold university degrees and appropriate technical qualifications. At entry level, female applicants appear not to be discriminated against, and significant numbers of women occupy upper-level civil service positions. On the other hand, this situation is offset by the fact that most senior posts in the civil service tend to be filled by males regarded by the traditional authorities as politically reliable. These are often princes of the dominant Dlamini clan, or individuals with close ties to the royal family.

Civil society in Swaziland is weak, though this is not because the government makes it especially difficult for the sector to operate. The Coordinating Assembly of Non-Governmental Organisations (CANGO) has some 70 affiliates that are concerned with a range of social issues including child abuse, population control, women's empowerment, youth and orphan care, and the like. These groups can attempt to influence policy and legislation although, as noted above, they were barred from commenting on the draft constitution. They are not subject to onerous registration requirements, nor is there evidence that their funders are subject to state pressure. The disabilities they face are twofold. One is the political apathy of the majority of Swazis and the continuing internalization of a political culture that demands unquestioning subservience to the wishes and whims of the traditional royalist and chieftaincy authorities. The second is government's distrust of the sector, which it does not regard as a partner in the fight against poverty and other ills. Many of the groups are in fact regarded by the royalist sector as the agents or partners of foreign forces. A royalist spokesman was recently quoted as saying "Who are these groups? Where do they come from? We know their financing comes from abroad ... what is their agenda?"⁷

Suspicion and hostility characterizes the state's attitude toward the media. Freedom of speech and of the press in Swaziland is not legally protected, and the government has frequently acted against the media to discourage critical coverage of the royal family. This has included closing down newspapers and magazines as well as detaining and harassing journalists and broadcasters. There are two daily newspapers in Swaziland, one of which is government owned. The state has a monopoly over television and radio ownership. In 2003, a censorship policy for the state-owned Swaziland Broadcasting and Information Services was imposed to prohibit the dissemination of negative information about the government.

Libel laws and detention have been used by the government to intimidate journalists. For example, in 2004 Deputy Prime Minister Albert Shabangu sued the Times of Swaziland for defamation over an article in which the paper had noted Shabangu's past links to opposition groupings. In July 2005, he was awarded the equivalent of US$116,000 in damages by the High Court, a decision that was reversed in May 2006 by the Supreme Court, which also ordered Shabangu to pay the newspaper's legal costs.

In August 2006, Minister of Public Service and Information Themba Msibi warned the media against criticizing the king. This came after the state broadcaster had aired critical comments made by a local human rights lawyer following a visit to the kingdom by an African Union human rights group. Management of the radio station was told to "toe the line." In response, a senior journalist at the radio station told the Media Institute of Southern Africa that "censorship is an everyday occurrence here. As a government medium, there is very little we can do."⁸ There is no censorship body, nor are there censorship laws, operative in Swaziland. Such censorship as exists then is self-censorship in response to direct threats from state authorities.

The telecommunications network is poor by comparison with neighboring South Africa but the mobile telephony network is growing rapidly. There are about 36,000 regular internet subscribers in Swaziland and there are seven Internet service providers operative in the country, access to which is not blocked or hindered by the government. Government ministries do not have their own websites but there is a central government site which reflects the work of each ministry (www.gov.sz).

Recommendations

• All political offices should be opened to free and competitive elections under an independent election commission.
• The ban on political parties should be lifted, and all candidates should have the opportunity to campaign openly.
• The government should take all necessary steps to bring the 2006 constitution into compliance with Swaziland's international and regional human rights treaty obligations, and a vigorous and independent legal reform process should be instituted to facilitate such incorporation into domestic law. Ongoing training should be provided to all state officials on the professional and other implications of these obligations.
• An enabling environment should be created for the vigorous expression of views and opinions by freeing the press and broadcast media from all forms of threat or censorship, as well as through the creation of an independent media authority to ensure a nonpartisan state media.

Civil Liberties – 3.18

Protection from state terror, unjustified imprisonment, and torture: 2.57
Gender equity: 2.50
Rights of ethnic, religious, and other distinct groups: 2.75
Freedom of conscience and belief: 5.67
Freedom of association and assembly: 2.40

Swazi law does not prohibit the use of torture, and the increasing number of reports of torture and mistreatment of detainees suggest that such practice is becoming routine. While the Prison Act provides for the prosecution of officials suspected of torture or degrading treatment, there have been no reports of any such cases being mounted.

In September and October 2005, 10 pipe and gasoline bomb attacks were directed at the offices of two important traditional institutions as well as at the homes of three police officers and two politicians close to the royal family. No one was killed in these attacks, but one police officer suffered severe injuries. In December police detained 20 sympathizers of two opposition groups, the People's United Democratic Movement (PUDEMO) and the Swaziland Youth Congress (SWAYOCO). Of these, 15 were charged with the destruction of government property, attempted murder, and treason. Among them was Mduduzi Mamba, whose wife, LaFakudze, was detained late in December and who died of abdominal trauma only hours after her release from custody.⁹

The 15 accused of treason were released on bail in March 2006. Their freeing came after the acting chief justice of the High Court, Jacobus Allandale, stated that the prosecution had failed to make a convincing case of a link between the accused and the bombings. He also ordered an investigation into allegations that the accused had been beaten and tortured. No such investigation was conducted. A rally convened to welcome the release of the accused was dispersed by the police. In September, and in a further indication that there is little protection against arbitrary arrest, four of the accused were re-arrested on further charges of damage to property. As of February 2007 the accused were still awaiting trial amid indications that the state was having difficulty building its case.

Prison conditions in Swaziland are generally poor. A lack of basic hygiene and unsafe sexual practices contribute to the spread of HIV/AIDS within prisons. Moreover, pretrial detention facilities are overcrowded, a fact exacerbated by the introduction in the early 1990s of non-bailable provisions for a range of alleged criminal actions that include rape, murder, and public order and security offenses.

Although Swaziland has a functioning bail system, excessive pre-trial detention is a problem. Apart from the courts, which are unpredictable, there are few effective redress mechanisms, like ombuds offices, available to ordinary citizens when their rights are violated.

In 2004 Swaziland acceded to four core international human rights treaties, including the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). However, no attempt has been made to incorporate CEDAW's provisions into domestic law, as many of the convention's provisions would undermine key tenets of Swazi law and custom.

Men and women do not occupy an equal status in Swazi society. Women are subordinate in both civil and traditional marriages. The new constitution did grant certain new rights to Swazi women, notably in regard to property, inheritance, and financial issues. Thus, for example, married Swazi women will no longer lose their property and other inheritance rights upon the deaths of their husbands, nor will their spouses' permission be required to open bank accounts, acquire passports, travel abroad, purchase land, and undertake a host of other acts that men take for granted. Other legal discrepancies remain in force. In terms of customary law, Swazi men can practice polygamy, while women cannot. While not common, instances have occurred of young Swazi teenage girls – many of them still school-going – being forced into marriages with members of the royal family, the king included.

There is a long history of violence directed against women and girls in Swaziland. According to Amnesty International's 2006 report on Swaziland,¹⁰ incidents of rape and other forms of sexual abuse of women and girls, including the rape of minors 12 years of age and below, have been rising since 2002. The government responded by tabling a draft Sexual Offenses and Domestic Violence Bill, which proposed a new and tougher definition of rape and sought to criminalize marital rape. It also proposed new civil law remedies for victims of domestic violence. The disproportionately high incidence of HIV/AIDS among Swazi women (in contrast to Swazi males) reflects their generally unequal status socially and their disempowered sexual status in particular.

In October 2006, police in Mpumalanga province in South Africa, adjacent to Swaziland and Mozambique, announced that they were investigating a child-trafficking racket involving a trade in girls aged between 10 and 16 from Swaziland and Mozambique. After being lured into South Africa, the girls were forced into prostitution. Police stated that they believed the racket had been operating for some six years. There is no evidence of the Swazi police having acted in an attempt to combat such trafficking.

In May 2005 the international NGO Save the Children released the results of a survey that found that over a two-week period 59 percent of the 2,750 Swazi children surveyed revealed they had been subjected to corporal punishment at school.

Legislation and general practice in Swaziland are not sensitive to the needs of people with disabilities. While all new government buildings must provide ramps and easy-access facilities to disabled persons, no attempt has been made to equip existing public buildings for this purpose.

Given that Swaziland is largely homogeneous ethnically, issues of ethnic discrimination or disadvantage do not arise, nor is there any sustained record of religious discrimination. While there is no formal legal provision for religious freedom in Swaziland, the government generally respects freedom of religion in practice and respects the rights of nonbelievers and the beliefs of minority religious groups. The one exception is the Jehovah's Witnesses, against whom state action has from time to time been directed. New religious groups must register with the government, and state permission is required for the construction of religious buildings. There is no record of refusals in regard to these two requirements. On occasion prayer meetings have been disrupted or banned because they were considered political gatherings.

Freedom of association is not guaranteed in Swaziland and is often actively restricted. Police permission is required and routinely refused for meetings and demonstrations of a political nature. Where such gatherings or marches do occur, they are invariably broken up by force with the use of tear gas, baton charges, rubber bullets, and water cannons. Despite this antipathy to gatherings of a political nature, the government does respect the right to form and join trade unions. This has, however, not protected trade unionists from state action; the detention and general harassment of pro-democracy trade union leaders is common.

Recommendations

• The provisions of the CEDAW treaty should be incorporated fully and without any qualifications into Swazi domestic law. In addition, the government should accede to the Optional Protocol to the CEDAW so that Swazi women can lodge complaints with the UN treaty-monitoring body established under the Protocol.
• The state should institute effective measures to protect Swazi children from all forms of violence, including sexual violence and corporal punishment in schools and homes. Such measures could include a public campaign against domestic violence and an educational campaign aimed at school administrators and teachers.
• Laws requiring prior permission for meetings and protests should be repealed, and the use of force against peaceful demonstrators should be banned.

Rule of Law – 2.10

Independent judiciary: 2.00
Primacy of rule of law in civil and criminal matters: 2.17
Accountability of security forces and military to civilian authorities: 1.00
Protection of property rights: 2.33
Equal treatment under the law: 3.00

Swaziland operates a dual court system comprising traditional courts, in which presiding chiefs apply customary law, and a Roman-Dutch system of magistrate courts, a High Court, and a Court of Appeals. The last is not a permanent body but one currently staffed mainly by retired southern African judges who convene in Swaziland two to three times per year. Their rulings are, however, based on Swazi law. All judges, including those for the Court of Appeals, are appointed by the king, and their appointments are not subject to parliamentary approval or scrutiny. In the late 1990s, then-prime minister Sibusiso Dlamini unilaterally scrapped the commission originally set up to make recommendations for judicial appointments and replaced it with a special committee on justice composed of certain cabinet ministers, the attorney-general, the director of public prosecutions, the commissioner of police, heads of the security services, the chief justice, and palace advisers; all these officials are appointed by the king and are consequently subject to dismissal by him. Its brief went well beyond judicial appointments and involved a close scrutiny of the workings of the entire justice system.

With the promulgation of the new constitution, the king reinstated the Judicial Services Commission, comprising primarily representatives of the ministry of justice, the legal profession, the magistracy and serving judges. Their brief is to screen potential candidates for the bench and recommend suitable candidates to him. Since then, the king has appointed three acting judges supported by the commission.

Despite this advance, the coexistence of two legal traditions with fundamentally different conceptions of rights lies at the core of the political tensions that have afflicted Swaziland since the early 1970s. These tensions began with the declaration of the state of emergency in 1973, which was triggered in part by the fact that the High Court had acted to overturn the legislative will of parliament, which functioned then as the handmaiden of the monarchy. A dramatic manifestation was the 2002 resignation en bloc of the appeals bench, stemming from the monarchy's refusal to implement decisions with which it did not concur.

The political and legal crises stemming from this action on the part of the monarchy severely compromised the independence of the judiciary and threw the administration of the judicial system into disarray. Throughout 2003 and 2004 Swaziland remained without a Court of Appeals. This resulted in a continued violation of the rights of those villagers who had been forcibly removed from their homes as well as those numerous individuals whose civil and criminal cases were at the appeal stage and therefore could be neither heard nor concluded.

What the last three decades of Swazi political life have revealed is that in any clash between the two legal systems, it is the view of the Swazi king and his advisers and the law of custom that prevails. What this means politically is that an unelected and unaccountable monarchical order refuses to accept any constitutional or legal limits to its rule. The casualties of this ideological worldview have been numerous: the Swazi democratization process, the rule of law, the administration of justice, and perhaps above all, the economic and social development of the people.

Despite political pressures and attempts at intimidation, the collective body of judges – local and expatriate – that has since 1968 served in the High Court and the Court of Appeals of Swaziland has developed a reputation as able and competent judicial officials. For the most part, the Swazi bench has attempted to apply the law fairly and consistently, and it has at times resisted attempts by the state and traditional authorities to influence decisions through various forms of interference. Some of the instances cited above in this report illustrate this fact.

According to the "saved provisions" of the 1968 independence constitution, a High Court judge can be removed from office only on grounds of an "inability to perform the functions of his office, whether arising from infirmity of body or mind or any other cause or for misbehavior." This provision is supposed to be invoked only after the chief justice has requested that the king investigate the conduct of the judge in question, which must occur through a tribunal appointed by the king. None of these requirements were met in 2003, when Justice Thomas Masuku was "transferred" from the high to the industrial court. This de facto removal from the bench was challenged successfully in the High Court by the Swazi Law Society.

The presumption of innocence until proven guilty is undermined in Swaziland through the Non-Bailable Offenses Order. According to this legislation, Swazi courts are prohibited from granting bail to persons charged with one or more so-called scheduled offenses. These include murder, rape, robbery, and offenses referred to in public order and anti-subversion laws. In 2001, the Court of Appeals struck down the order, describing it as "draconian" and "inconsistent with the presumption of innocence and an ... invasion of the liberty of the subject." In the face of this rejection, the government issued Decree Number 3 of 2001, re-imposing the provisions of the 1993 order. Challenges to this decree were launched by two pretrial detainees denied bail, resulting in November 2002 in a second Court of Appeals ruling striking down the legislation. In response, the then-prime minister announced that the act would remain in force and that all government agencies had been instructed to ignore the court's ruling.

Citizens have the right to independent counsel of their choice. For most Swazis, however, this is nominal, given that approximately half of them are living below the poverty line and a huge percentage of the potential labor force is unemployed. There is no state system of legal aid for those unable to afford counsel.

Prosecutors rarely act independently, particularly in cases with political overtones. Likewise, the prosecution of public officials for wrongdoing is rare and nonexistent in the case of those officials related to, or with strong connections to, the royal family.

Any civilian state control of the security services by the judicial and legislative branches of government is ineffective, as the services essentially function as an enforcement arm of the traditional authorities in the executive branch. The services consequently do not refrain from interfering in the political process and there are no known cases of members being held accountable for any abuses of power. In their actions, the security services show scant respect for human rights. Thus, for example, the use of force to break up marches or demonstrations, even lawful ones, is routine.

The issue of property rights in Swaziland is complex. There is a dual land system with distinct freehold and leasehold sectors. This roughly corresponds with the urban-rural divide of the country. For those with freehold rights, all residents of the country have an equal right – though obviously not an equal capacity – to property ownership. This sector operates under normal market conditions, and the state adequately enforces and protects property rights and contracts. A very different situation prevails in the communal leasehold sector, in which the majority of Swazi citizens reside. In these areas, land cannot be bought and sold, and the tenure rights of the occupants are dependent on the good will of the chiefs who administer the land on behalf of the king. This situation can be manipulated for political and other reasons, and there is a long history in Swaziland of the precarious nature of tenure rights being used as a means to pressure or discipline commoners residing in the leasehold sector. In short, those who do not comply with their chiefs' orders can have their land taken from them, and forcible eviction of families or whole communities is not uncommon.

The most politically significant case in recent years involved 120 residents of the KaMkhweli and Macetjeni communities who were forcibly evicted from their homes by the police in October 2000, along with their chief, when they refused to accept the appointment of one of the king's brothers as their new chief. The evictees have on several occasions taken their case to court, and in all but one instance their right to return to their homes has been upheld. Finally, in November 2002, the Court of Appeals made such an order, and the government publicly stated it would not obey. This led to the resignation of the appeal bench. In its ruling the court also upheld an earlier High Court decision to jail the commissioner of police for contempt because he had not implemented earlier rulings allowing the residents to return to their homes. This order was never implemented. Even though the judges' strike was suspended in late 2004, their rulings on this land eviction case remain unimplemented, and the evictees in question have still not been allowed to return to their homes. In 2007 they remain displaced, without access to their traditional lands and homes.

Recommendations

• An urgent political will is required on the part of the executive to protect the independence of the judiciary by henceforth respecting and implementing the judgments of the courts.
• Steps need to be taken to restore the presumption of innocence to judicial and administrative practices by restoring to the courts the discretion to decide on matters of bail.
• The government must ensure in law and in practice that all residents of Swaziland are protected from forced evictions from their homes.
• The government should allow the immediate return to their homes of all members of the KaMkhweli and Macetjeni communities evicted in 2000 and an impartial body should be appointed to determine the level of financial reparations payable to the evictees.

Anticorruption and Transparency – 2.05

Environment to protect against corruption: 1.80
Laws and ethical standards between private and public sectors: 2.75
Enforcement of anticorruption laws: 1.50
Governmental transparency: 2.14

According to the 2006 Country Report on Swaziland compiled by the Economist Intelligence Unit (EIU), "corruption is endemic in Swaziland."¹¹ This is especially true of the monarchy and the institutions of the Swazi nation, where expenditure is lavish and rarely accounted for. For example, in recent years the king has sought state funds to purchase an executive jet for his personal use and to construct new royal palaces for his 14 wives, as well as supply each of them with expensive luxury vehicles. He himself is the owner of a Daimler Chrysler Maybach, reportedly one of the world's most expensive motor vehicles at about US$700,000. In April 2004, he spent US$600,000 on a party in the national stadium to celebrate his 34th birthday at a time of severe strain in the economy prompted by a fourth consecutive year of drought. Similar such lavish parties were staged to mark the king's 35th and 36th birthdays in 2005 and 2006.

Corruption in Swaziland is not a result of excessive bureaucratic regulations or registration requirements. It stems, rather, from the undemocratic nature of the political order and from a view within the Swazi political establishment that state resources are, as the EIU put it, "an entitlement ... corruption in Swaziland is estimated to cost up to 40 million Euros (US$54.3 million) monthly." ¹²

In response to criticism by various national and international groups and media reports of corruption, as well as threats of cuts in aid, parliament in 2006 passed the Prevention of Corruption Order. The act established an Anticorruption Commission and an Anticorruption Unit as dedicated entities for the investigation of corrupt activities involving public officials, companies, and public enterprises. This unit replaces an earlier one, established in 1998, that never produced any indictments, as it lacked powers to investigate and charge suspects. The institutions started functioning in July 2006. In February 2007, police arrested eight individuals, including senior officials in the Ministry of Finance and directors of private companies, four days after the commission issued a report on the plundering of some 50 million Euros (approximately US$68.2 million) from a fund set up for capacity building. There are no whistleblower-type laws on the statute book.

The Swazi economy is capitalist. Foreign investment is sought and encouraged, and there are few controls on the repatriation of profit. There is a well-developed private banking system. There is, however, considerable state involvement in the economy in the form of royalist-controlled investment corporations. The largest if these is the Tibiyo Take Ngwane Fund. At independence, control over Swaziland's mineral rights and royalties was vested in the Swazi nation and not the government. To administer the concession, the king established Tibiyo. Headed by a board whose majority are princes (male relatives of the king) and answerable only to the monarchy, Tibiyo pays no taxes, is not required to publish an annual statement (although it has done so for the last 10 years), and is not answerable to parliament. According to the EIU, "Tibiyo is a controversial institution that has some high-profile equity holdings in Swaziland, ostensibly made in the national interest, although some people have made accusations that its revenue is appropriated by the royal family."¹³

Over the years, Tibiyo has developed into a major corporation and a source of wealth for the royal family and those close to it. Funds were initially used to buy back freehold land from non-Swazis, much of which was developed into royally-owned maize and dairy estates. Tibiyo then moved into the retail sector, establishing butcheries, liquor stores, and taxi routes. Ultimately, the fund generated sufficient capital to begin acquiring equity (usually in the range of 40 percent to 49 percent) in practically every foreign company active in the economy. These have included huge agro-industrials in the sugar, timber, citrus, and fruit processing industries, large wholesalers, and banks, as well as mining, manufacturing, and tourist companies. In this way, Tibiyo has spread its net into all sectors of the economy, establishing a solid partnership with foreign capital, the dividend payments from which have become Tibiyo's largest source of revenue. It has also been the means by which the Swazi aristocracy has acquired for itself a considerable material base in the modern economy, complementing their control of the traditional agrarian sector, which is achieved through its monopoly over the right to allocate and withdraw land tenure rights. In other words, the Swazi aristocracy – the royalist lines within the Dlamini clan – is not just a privileged elite but a modestly wealthy capitalist class for whom a regime change or even a significant democratization of the system could have negative consequences.

No asset register exists to record the business and other interests of, or gifts to, public officials. Tax collection is reasonably efficient and accountable in the formal (that is, outside the institutions of the Swazi nation) sector of the economy and in regard to ordinary citizens/commoners. Swaziland has no independent auditing office such as an auditor-general or ombudsman. Bribes are not necessary to gain admission to higher education, although in some cases pressure has been applied successfully on the authorities of the University of Swaziland to admit members of the royal family lacking the necessary admission standards.

In May 2006, the European Union (EU) Ambassador to Swaziland announced the suspension of all direct funding to the Swaziland Government. The EU has been one of the major donors in Swaziland in recent years, having provided aid to the value of €4.1 million in 2005. Announcing the decision, Ambassador Peter Beck said the action was being taken "due to the absence of adequate fiscal controls" and would be reviewed only when "government implements a solid accounting and auditing mechanism to monitor its coffers.... Swaziland is behind other African countries," he noted.¹⁴

The public has little access to state information, and no legal mechanisms facilitate it. The process of awarding government contracts and tenders is public, but it is susceptible to corruption. The executive budget-making process is not transparent and government does not publish for public consumption detailed accounts of its expenditure. Nor are such details provided of expenditures by the king. Parliament does exercise a watchdog role over the budget and government expenditure. It has at times undertaken this function to good effect by reining in, for example, reckless spending on the part of some government ministries. The government does provide an enabling environment for the distribution of foreign assistance, not all of which is directed at the government. The nongovernmental sector is the recipient of some of this aid.

Recommendations

• An independent auditing watchdog in the form of an auditor-general's office should be established, as well as an independent complaints directorate in the form of an ombudsman's office.
• Legislation should be enacted to guarantee the public's right to both official state information and their individual personal records held by the state.
• The Tibiyo Fund and other such royalist-controlled private corporations should be converted into public corporations and required to operate in terms of relevant company laws. This would include subjecting their financial records to public scrutiny as well as rendering them taxable.
• Whistleblower-type legislation should be enacted to encourage the public to expose corruption while at the same time providing effective protection to whistleblowers.
• Parliament should ensure that the Anticorruption Commission and the Anticorruption Unit have sufficient funds, human resources, and legal guarantees to enable them to pursue cases of official wrongdoing vigorously and without fear.

Author

John Daniel is a former member of the political science department at the University of Swaziland and retired professor of political science at the University of Durban-Westville, South Africa.

Notes

1 See Johnson Vilane and John Daniel, "Swaziland: Political Crises, Regional Dilemma," Review of African Political Economy 35 (May 1986):

2 Vilane and Daniel, 56.

3 International Monetary Fund, Statement by Peter Gakunu, Executive Director for the Kingdom of Swaziland and Bhadala T.Mamba, Adviser to the Executive Director, January 31, 2007, appendix to The Kingdom of Swaziland: Staff Report for the 2006 Article Consultation. Washington DC, January 2007.

4 Southern African Contact(Denmark), [email protected] 45, 15 January 2007,2, http://uk.groups.yahoo.com/group/SAK-Swazinewsletter.

5 [email protected] 30, 5 March 2006, 3.

6 Country Profile 2006:Swaziland (London: Economist Intelligence Unit [EIU], 2007), 7.

7 [email protected] 46. 30 January 2007, 2.

8 [email protected] 40, 11 September 2006, 1.

9 See John Daniel and Marisha Ramdeen, "Swaziland" in Andreas Mehler, Henning Melber and Klaas van Walraven (eds.) Africa Yearbook 2: Politics, Economy and Society South of the Sahara in 2005. Brill: Leiden 2006.

10 Amnesty International. Annual Report on Swaziland. Cited in [email protected] 37, 3 July 2006, 1-3.

11 Country Profile 2006:Swaziland (London: EIU 2007), 15.

12 Ibid.

13 Country Profile 2004: Swaziland (London: EIU 2005), 6.

14 [email protected] 35. 5 June 2006. 1-2.