In a crucial test of the powers of King Mswati III, the Swazi High Court has been asked to strike down the king’s unilateral change of Swaziland’s name to eSwatini earlier this year.
Human rights lawyer Thulani Maseko and the Institute of Democracy and Leadership (Ideal), of which he is director, want the court to set aside Legal Notice No. 80 of 2018, which confirmed the name change announced by Mswati at his birthday celebrations in April. They are also seeking an order nullifying all decisions taken by government in terms of the disputed legal notice.
They argue that that the king acted unconstitutionally by failing to take the name change through legislative processes.
The Swazi constitution of 2005 bars rule by decree, stipulating that the king can only make laws in conjunction with Parliament.
The matter will be heard by a full bench of the High Court.
Maseko is one of Swaziland’s most vocal upholders of the rule of law. He and prominent journalist Bheki Makubu were jailed by controversial former Chief Justice Michael Ramodibedi in 2015 for criticising the Swazi judiciary.
Maseko’s application calls on the High Court to rule on the king’s powers, which has been largely a no-go area.
The lawyer treads further on forbidden ground by arguing that the abrogation of the independence constitution by King Sobhuza, Mswati’s father, in 1973, was similarly unlawful.
The most serious legal challenge to the monarch since independence was in 2000, when the Court of Appeal – now the Supreme Court – declared the Non-Bailable Offences Order of 1993 unconstitutional.
The order, which excluded bail for certain crimes, was promptly reissued by the executive, which complained that the judgement undermined the king’s powers. In November 2002 all the Appeal Court judges resigned in protest.
The last time a full bench of the High Court presided over a case relating to the powers of the king was in 2014, when the Law Society of Swaziland challenged Mswati’s appointment of a judge.
In a controversial ruling, the court found that the king’s decision was final, as he is “umlomo longa cali manga” (the mouth that tells no lies).
At that time the judiciary was under the leadership of Ramodibedi, a non-Swazi who later left the country under a corruption cloud.
Swaziland, eSwatini or kaNgwane?
In his application, Maseko contends that the name change cannot be effected without a legislative process that would include the participation and involvement of the public.
“Citizen participation in a decision of such significance is at the very heart of democracy and democratic governance as guaranteed in section 1 of the Constitution,” he says. “What is more … the name eSwatini does not seem to be the original name of the country…kaNgwane is.”
Maseko points out that the siSwati version of the constitution frequently refers to the Kingdom of Swaziland as “umbuso waka-Ngwane”.
He adds that the decision to change the country’s name should have been preceded by a general meeting of the nation at the royal residence, known as sibaya (the cattle kraal). “The people are the highest decision-making body,” he said.
Maseko argues that the constitution makes no provision for the king to unilaterally rename the country. “It thus amounts to a constitutional change and amendment of the constitution, without having followed the prescripts of the constitution…The notice speaks for itself… parliament was not involved, let alone the people through a referendum, as required by section 246 (3) of the constitution.”
Maseko then broadens his attack to include King Sobhuza’s scrapping of the independence constitution in 1973. This, too, was a violation in that the constitution “…made no provision for its abrogation by proclamation”.
“We … verily believe that the repeal of the 1968 independence constitution was unlawful and unconstitutional. Similarly, the attempt to change the name of the country by declaration finds no support from the 2005 constitution … inasmuch as His Majesty King Sobhuza II had no power to abrogate the independence constitution by proclamation.”
Maseko adds that the name change has “constitutional implications … as the name is entrenched in section 1 and is mentioned at least 200 times in other provisions of the constitution”.
What’s in a name?
During the celebration to mark his 50th birthday and 50 years of Swaziland’s independence – with the latter playing second fiddle – Mswati announced that Swaziland would henceforth be known as Eswatini. Mswati’s official speeches over many years have borne out his preference for the name eSwatini.
The announcement was received by the crowd at Mavuso Trade Centre with jubilation.
In a prelude to the change of name announcement, King Mswati stressed the importance of providing forums where the populace can voice divergent views, including sibaya. King Mswati claimed that “the monarch rules by consensus and it is through the national consultations that have guided our development policies, legislation and social cohesion. This is our monarchical democracy.”
He went on to to say that name “Swaziland” was inherited from the British, and that “if we are to give true meaning to our independence, time has come to give our country a name of its people”.
Other countries in the region had “localised their names soon after independence”, he said. “I have the pleasure to present to you, on this historic day, a new name for the kingdom. Our country will be now be called ‘Kingdom of eSwatini’.
According to the legal notice, the king made the change by exercising powers conferred on him by section 64(3) of the 2005. The section states that “subject to the provisions of this Constitution, the king may exercise the executive authority either directly or through the cabinet or a minister”.
Maseko told The Nation that he was not opposed to the name-change as such, but that “it is the manner in which it was done that is of concern. It is surely reminiscent of the 1973 Proclamation.”
“Under the current constitution, only the people assembled at sibaya, as the highest policy-making body, has the power to trigger the name change. Only then would a legislative process be started.”
The Chief Justice, Bheki Maphalala, and the Commissioner of Police, Isaac Magagula, were among the first to announce a corresponding change of name for their institutions.
The debate over Swaziland’s name first surfaced in the 1960s, when the Ngwane National Liberatory Congress – then the official opposition – wanted the country to be known as ka-Ngwane. Ironically, this was opposed by the king’s party, the Imbokodvo National Movement, on grounds that “Swaziland” was more fitting.
In April 1967, then executive council member for education, Polycarp Dlamini, told the media that the “movement had no intention to change the name of Swaziland. We think Swaziland is appropriate. We are Swazis and this is our land.”
This story was produced by the Inhlase Centre for Investigative Journalism in Swaziland, in association with the amaBhungane Centre for Investigative Journalism