Country Report on Human Rights Practices for 1991
SWAZILAND
Swaziland is governed as a modified traditional monarchy with
all executive, legislative, and judicial powers ultimately
vested in the King. Advised by the Queen Mother, traditional
figures, and cabinet ministers, he rules according to Swazi law
and custom, never codified but ultimately determined by himself
and his advisors. Swaziland's Government combines modern and
traditional elements—a cabinet, parliament, and independent
courts which follow Western law—and a tribal hierarchy with
"national" courts which follow traditional Swazi law and
custom. The Cabinet is appointed by the King from among
Members of Parliament and is responsible to him. A
Westminster-type constitution containing a bill of rights was
imposed on Swaziland at independence by its former colonial
ruler, but it was repealed by King Sobhuza II in 1973 on the
grounds that it was incompatible with the Swazi tradition of
decisionmaking. In 1978 the King established the Tinkhundla
system, which allows limited democratic participation at the
district level while giving the King and a small electoral
committee the power to determine parliamentary representation
(see Section 3).
National defense is provided by the Umbutfo Swaziland Defense
Force, consisting of 3,000 troops. The Royal Swaziland Police
is the primary internal security organization. Both the police
and the defense force are controlled by civilian authorities.
Swaziland has a free market economy, with relatively little
government intervention in the marketplace. The majority of
Swazis are engaged in subsistence agriculture, though a
relatively diversified industrial sector now accounts for the
largest component of the formal economy. The economy relies
heavily on the export sector, composed primarily of large,
foreign-owned firms.
In 1991 political rights remained seriously circumscribed, and
there continued to be important restrictions on the freedom of
speech and assembly. In August eight persons who spoke at a
political rally were arrested and charged with having
participated in an illegal political meeting. All were freed
on bail, and the case against them was subsequently dismissed
when the State withdrew all charges. Notwithstanding these
arrests, the authorities encouraged open public debate on the
need for political change, especially in the press and in a
series of public meetings beginning in September. Other human
rights problems included mistreatment of prisoners and
discrimination (and violence) against women. Six persons
detained in 1990 without charge under Swaziland's 60-day
detention order were released in March. At the end of 1991,
there were no persons in detention under this law, though it
remained a deterrent to dissent.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no allegations of such killings.
b. Disappearance
There were no reports of disappearance.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Torture is not generally practiced, but there are occasional
reports by prisoners of police and military threats and
beatings. In one such confirmed report, a handcuffed prisoner
was punched and kicked by a police officer during questioning.
Such complaints generally come from criminal, not political,
prisoners. There were no instances of police officers being
tried, punished, or otherwise disciplined for such abuses.
Defendants occasionally claim that the courts have accepted
confessions extorted by the police, but the credibility of such
claims is difficult to ascertain. Caning can be administered
to youths involved in either petty or violent crimes.
d. Arbitrary Arrest, Detention, or Exile
Swazi law requires warrants for arrests in all but certain
circumstances. These exceptions, however, are poorly defined,
and police who have strong suspicions about a suspect do not
normally seek a warrant. Arrestees are allowed to consult with
a lawyer of their choice, and provision for bail exists.
Police occasionally fail to charge suspects within the 48 hours
required under uncodified regulations.
In another category known as "administrative detention," a 1978
law permits the Government to hold any person without charge or
trial for a renewable period of 60 days. Detention under this
law may in theory be appealed to the High Court under that
Court's general power to review the constitutionality of the
law itself, but to date no such appeal has been heard, and the
law itself specifically prohibits any court appeal of a
detention order. In practice, the only appeal available under
the 1978 detention order is one made directly to the Monarch.
The law has generally been used against political opponents
viewed by the Government or the Monarch as threats to internal
security or stability. It was invoked in 1991 to renew
detention orders first issued against six persons in 1990.
These six persons, who included five political activists and
royal family member Prince Mfanasabili Dlamini, were all
released in late March. No persons were in administrative
detention at year's end, but its existence continues to inhibit
political activity.
e. Denial of Fair Public Trial
The modern judiciary consists of the Court of Appeals, the High
Court, and magistrates' courts, which are independent of
executive and military control and free from intimidation from
outside forces. In magistrates' courts, the defendant is
entitled to counsel at his or her own expense. Court-appointed
counsel is provided in capital cases or when difficult points
of law are at issue. There are well-defined appeal procedures
up to the Court of Appeals, the highest judicial body. Some
members of the regular judiciary are appointed from the bars of
other countries with compatible legal systems.
In treason and sedition cases, the King has powers to
circumvent the regular judiciary by appointing a special
tribunal, which may adopt rules and procedures different from
those applied in the High Court. In 1987, for example, the
last time a special tribunal convened. King Mswati III issued a
decree that authorized a special tribunal to try offenses
committed against the King and Queen Mother. This decree
permitted secret sessions, forbade the accused from having
legal representation, and did not allow an appeal.
In traditional courts, to which ethnic Swazis may be brought
for relatively minor offenses and violations of traditional
Swazi law and custom, formal legal counsel is not allowed, but
defendants may speak on their own behalf and may be assisted by
informal advisors. Sentences are subject to review and to
appeal to the High Court and the Court of Appeals. Accused
persons who desire counsel can insist that their cases be
transferred from the traditional courts. Because there is some
jurisdictional overlap between the two court systems, there is
occasionally confusion over which court should hear a case. By
law, the public prosecutor has the authority to determine which
court should hear a case, but, in practice, it is usually the
police who do so. Police usually choose the court in which
they believe a conviction is most likely.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law generally requires that a warrant be issued by a
magistrate before police may search homes or other premises.
However, the law also provides police officers with the rank of
subinspector or higher the right to search without a warrant if
they have what they consider reasonable cause to believe
evidence can be obtained that might otherwise be lost through
delay in obtaining a warrant. While searches without warrants
occur occasionally, the issue of legality of evidence, or the
method by which evidence is obtained, rarely arises in court.
There is no evidence that the Government systematically
monitors private correspondence or conversations, but the Swazi
police have been known to apprehend and interrogate persons
reported to have made objectionable statements about the King
during the course of private conversations or in telegraphic
correspondence. In May, for example, a local journalist was
charged with sedition on the basis of comments he allegedly
made while drinking at a bar. He was free on bail at year's
end.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Freedom of speech, especially on political matters, is
limited. Public criticism of the immediate royal family and of
national security policy is generally forbidden. The secretary
of the Law Society was threatened in early January with
detention without charge when he publicly criticized the
current detention law.
The Parliament serves as a foriom for examination and criticism
of government policies, but matters are seldom pressed to a
vote and, when they are, unanimity is usually the result. In
May a Member of Parliament, P. D. Dlamini, was fired from his
job at a company in which a royally controlled holding company
has a substantial stake. It is widely accepted that Dlamini
was ousted because of his outspoken criticism of certain royal
counselors made on the floor of Parliament. He subsequently
fled the country briefly because he feared he would be detained
under the 60-day detention law. He later returned to Swaziland
and to an active role in Parliament, but he has not been
reinstated in his job.
Swazis have a number of traditional forums through which they
can express discontent, including direct dialog with their
chiefs, community meetings, Tinkhundla meetings, and National
Libandlas (special councils, nicknamed "People's Parliaments,"
in which all Swazis are permitted to participate). However,
the National Libandla has not met since mid-1990, and many
Swazis view it and other traditional forums as an obsolete
means for expressing their political views.
The media, both government-controlled and private, practice
self-censorship, refraining from criticism of the royal family
or from reporting in advance the movements of the King or Prime
Minister. However, in 1991 the private print media
increasingly criticized and questioned other actions of the
Government and established political structures. The
Government controls Swazi radio and television stations and
indirectly influences, through one of the King's trust funds,
one of the two daily newspapers. Private companies and church
groups publish several newspapers and magazines. One church
group owns and operates a radio station.
In July the Government announced new regulations whereby all
press inquiries to government agencies would be channeled
through an unwieldy interministerial information committee.
Although considered a restraint on the press, the new
regulations were not enforced in 1991. In late September, the
Government announced a ban on newspaper reporting of public
comments on the Tinkhundla system, apparently in reaction to
widespread, and accurate, reports of public criticism of the
Government. The ban was rescinded the next day, and the
Government described the ban as "an error."
The Government has occasionally proscribed publications,
including foreign publications, deemed to be prejudicial to the
interest of defense, public safety, or public health. There
have been no such bannings since 1985, and the ban on the two
magazines proscribed at that time was lifted by Parliament in
1991.
Academic freedom is also limited by the practice of
self-censorship and the prohibition of overtly political
gatherings (see Section 2.b.).
b. Freedom of Peaceful Assembly and Association
King Sobhuza's 1973 decree prohibits political parties and
meetings of a political nature and demonstrations in any public
place without the consent of the Commissioner of Police. The
Government occasionally uses this power to stop meetings or
harass groups which might embarrass it. In August eight people
were charged with having organized and participated in an
illegal political meeting. The charges stemmed from the
inaugural meeting of the Swaziland Youth Congress, or SWAYOCO,
at which several speakers criticized the existing political
system and called for democratic reforms. Of the eight,
several had previously been tried and acquitted of treason but
later detained in 1990 under the 60-day detention order. In
this instance, three of the eight were detained briefly and
then freed on bail, while the others were simply charged and
released. The case was dismissed in late November when the
Government withdrew all charges against the eight.
In March, as followup to the November 1990 incident in which
Swazi police and defense forces brutally broke up a student
sit-in at the University of Swaziland, the Government
established a judicial commission of inquiry led by the acting
Chief Justice. Hearings in 1991 were held in camera. At
year's end, there remained widespread skepticism about whether
the results of the inquiry would ever be made available to the
public and, if so, about their credibility.
Alleged members of underground political groups, such as the
People's United Democratic Movement or PUDEMO, are believed to
be kept under surveillance and occasionally harassed by police.
Except for the King's 1973 decree, there are no formal legal
barriers to freedom of association. Trade associations and
professional bodies exist and maintain relations with
recognized international bodies in their fields.
c. Freedom of Religion
Swaziland is hospitable to all religious believers. It
considers itself to be a Christian country and permits a wide
variety of foreign missionary activity. Organized religions
are free to establish places of worship and train clergy, to
publish religious texts, and to undertake religious travel
outside the country. At the same time, the authorities promote
the observance of Swazi customs. Problems arise when these
customs conflict with religious beliefs. Church condemnation
of traditional Swazi ceremonies, for example, has led in the
past to the arrest and deportation of church figures. However,
no such incidents have occurred since 1987.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Swazis may travel and work freely within Swaziland. Those who
have left the country may freely return. While there have been
no cases of the Government denying citizenship privileges,
including travel documents, since 1986, ambiguities in
Swaziland's citizenship law can be exploited to deal with
politically unpopular persons. Swazi men with adequate funds
generally can obtain a travel document to travel in the region,
but, under both modern and traditional law, married women
require the husband's permission to apply for a passport. In
practice, this law makes it more difficult for women than men
to obtain one.
Swaziland treats refugees from neighboring states well. About
7,000 primarily ethnic Swazis from South Africa, who fled the
South African "homeland" of KwaZulu, reside in Swaziland (6,000
as registered refugees). Recent years have seen a large influx
of Mozambican refugees. While approximately 34,700 are
officially registered by the United Nations High Commissioner
for Refugees (UNHCR) , it is believed that an additional 30,000
or more Mozambicans may be in Swaziland as illegal immigrants.
Swaziland permits the UNHCR to interview those who seek refugee
status and grants asylum if the person can establish a
well-founded fear of persecution or physical danger if
repatriated. Illegal aliens who cannot establish their refugee
status, however, are usually deported. Many immigrants
identified for deportation serve extended time in detention
while arrangements for their repatriation are made. This delay
is due to the absence of an agreed repatriation procedure with
Mozambique, rather than a policy to penalize illegal immigrants.
Small groups of young South Africans fleeing violence in South
Africa continued to arrive in Swaziland in 1991. The
Government, together with the UNHCR, has worked to send these
refugees on to their desired destinations, normally African
National Congress (ANC) training centers in Zambia and
Tanzania. None was forcibly repatriated.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Swazi citizens do not have the right to change their government
through democratic means. Political parties are outlawed, and
an overt, organized political opposition does not exist. The
King rules in conjunction with the Queen Mother.
Traditionally, decisionmaking has been by consensus, with the
King soliciting advice from the royal family, the senior
chiefs, the Cabinet, Members of Parliament, and other
interested parties. Still, the King can legally accept or
dismiss advice as he sees fit. Legislation is passed by the
Parliament and is then submitted to the Monarch for assent,
which may be withheld. The King can also legislate by decree.
Swazis participate indirectly in the selection of Members of
Parliament through the Tinkhundla system. The King can
dissolve Parliament and call new elections, normally held every
5 years. Parliamentarians (50 in the House and 20 in the
Senate) are chosen in a complex process involving the
interaction of a 7-member electoral committee, 40 traditional
districts, 80 electors, and the King's appointive powers. The
district-level Tinkhundla meetings do allow a measure of
democratic participation, but village elders control the
nominating process, and voting is not by secret ballot.
In 1990 the King announced procedures for considering reform of
the Tinkhundla system, e.g., to permit direct election of
Members of Parliament, as recommended by the 1990 National
Libandla. In September the Masitsela Committee began a series
of meetings in each of the districts to solicit public comment
on the political system. The ensuing debate was remarkably
open and largely critical of elements of the Tinkhundla
system. King Mswati has promised to appoint a second committee
to consider the public comments and to present recommendations
for Tinkhundla reform to the King.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
In 1991 the Human Rights Association of Swaziland was
established. Though still not officially registered by the
Government, it operated freely in 1991 and spoke out on several
occasions together with other groups, such as the Law Society
of Swaziland and the Swaziland Trade Union Federation, on
important human rights issues.
While the Government does not encourage activities by
international nongovernmental human rights organizations, it
received and cooperated with an Amnesty International team
which visited in March to investigate the 60-day detention law.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
Swazi law and social traditions give rise to subtle forms of
discrimination against nonethnic Swazis. For example,
ambiguities in the citizenship law often make it more difficult
for nonethnic Swazis to obtain travel documents and other
privileges accorded more readily to ethnic Swazis.
Women have traditionally occupied a subordinate role in Swazi
society, and the dualistic nature of the legal system
complicates the issue of women's rights. Because traditional
marriage is governed by uncodified Swazi law and custom,
women's rights are often unclear and change according to where
and by whom they are interpreted (e.g., parents, village
elders, police, government officials). In both traditional and
civil marriages, wives are legally treated as minors, although
many women who marry under civil law mistakenly believe that in
doing so they will be accorded the legal status of adults.
However, this is legally possible only if the parties to the
marriage sign a prenuptial agreement providing such status.
In practice, changing socioeconomic conditions and urbanization
are breaking down these barriers to equality, and wives now
routinely and successfully execute contracts and enter into a
variety of transactions in their own names. However, they
still often recjuire their husbands' permission to borrow money,
open a checking account, leave the country, and, in some cases,
take a job. Divorce is discouraged by families, but is now
common. In traditional marriages, children are considered to
belong to the father and his family if the couple divorces. In
cases in which children are born out of wedlock, which is
common, they are considered to belong to the mother. In
traditional marriages, a man may take more than one wife. A
man who marries a woman under civil law legally may not have
more than one wife, although in practice this restriction is
sometimes ignored.
Marriage is further complicated because couples often marry in
both civil and traditional ceremonies, creating problems in
determining which set of rules applies to the marriage and to
subsequent questions of child custody and inheritance in the
event of its termination. This is a less common problem than
in the past, however. The Swaziland Council of Churches opened
a legal aid center in 1988 which provides free information on
issues such as marriage and maintenance laws.
Physical abuse of women, particularly wife beating, is common,
despite traditional strictures against this practice. Women
have the right to charge their husbands with assault under both
the traditional and modern legal systems and frequently do so
in extreme cases when the intervention of extended family
members fails to end such violence. The traditional courts,
however, can be unsympathetic to "unruly" or "disobedient"
women. The modern courts are more likely to convict wife
beaters, but sentences frequently amount to no more than
several months in jail or a fine, or both.
In the workplace, the Employment Act of 1980 forbids employers
to discriminate on the basis of race, religion, sex, or
political affiliation. It recjuires equal pay for equal work.
However, men's average wage rates by skill category are in some
sectors three times those of women. The Swaziland Federation
of Trade Unions' Special Women's Wing is focusing on the issues
of wage discrimination and maternity benefits, as well as other
sex-based discriminatory practices. In 1991 this organization
continued to highlight the issue of sexual harassment of female
employees by male employers, which is believed to be
widespread. Legal protection from sexual harassment is
addressed in the Swazi legal code, but its provisions are vague
and largely ineffective in halting this type of discrimination.
Section 6 Worker Rights
a. The Right of Association
The Industrial Relations Act (IRA) of 1980 affirms the right of
trade unions to exist, organize, and associate freely. Persons
in all sectors of the economy, including the public sector, are
permitted to join unions. Unions are able to operate
independently of government or political control, contingent
upon their acting as economic, rather than political,
organizations.
Unions are free to draw up their own constitutions within the
framework of the IRA. The Act specifies a number of provisions
which must be addressed in a constitution. These include
provisions for election of officers by secret ballot, annual
meetings open to all members, fees, grounds for suspension of
members, and expenditure of union funds. The union
constitution must be approved by the Labor Commissioner, who
can strike out or amend provisions which violate the law.
Unions maynot be dissolved as long as they adhere to the
regulations of the IRA. Unions which fail to maintain proper
registration with the Labor Commissioner may be dissolved, but
this authority has never been exercised.
For several years, including 1991, the International Labor
Organization's (ILO) Committee of Experts (COE) has noted
discrepancies between the IRA and ILO Convention 87 on freedom
of association and ILO Convention 98 on the right to organize
and bargain collectively, both ratified by Swaziland in 1978.
The several concerns of the COE include the broad powers
accorded government officials to control union activity and the
strictures on the ability of workers to form unions and
associate with other unions at home and abroad.
The IRA details the steps to be followed when disputes arise,
including what determines a legal or illegal strike. The Act
empowers the Industrial Court to settle employment disputes and
grievances and may enjoin a union from striking. While
historically strikes have been rare in Swaziland, and Swazi
tradition is to avoid confrontation, consciousness of workers'
rights is growing rapidly. When disputes arise, the Government
often intervenes to try to reduce the chances of a strike,
which may not be legally called until all avenues of
negotiation have been exhausted. The Labor Commissioner can
then issue a 14-day postponement of a strike, which can be
extended upon presentation of further documentation. There
were a number of strikes or threatened strikes in 1991, all of
which highlighted the growing consciousness of workers and the
continued reluctance of some employers to accept organized
labor unions. Disputes freqxiently centered on the issue of
recognition of unions by management or more straightforward
issues such as pay. In August a bitter pay dispute at a local
commercial bank escalated into a 2-day nationwide shutdown of
the banking system before being settled.
The IRA requires approval by the Minister of Labor on union
applications for international affiliations. The Swaziland
Federation of Trade Unions (SFTU), the union umbrella
organization, is a member of the Organization of African Trade
Union Unity. The SFTU also represents Swazi labor in the
International Confederation of Free Trade Unions and the
Southern Africa Trade Union Coordination Council.
b. The Right to Organize and Bargain Collectively
The IRA provides for the right to organize and bargain
collectively and outlaws antiunion discrimination. Employers
are obliged to recognize a union when it achieves 40-percent
membership among employees. Disputes in this area are referred
to the Labor Commissioner and the Industrial Court, if
necessary. The Court is limited by the law in several
respects, however. It may not, for example, order
reinstatement in cases of unfair dismissal and is limited in
the compensation it can order in such cases to an amount
ec[uivalent to 6 months salary. Employers can prohibit
employees from attending union meetings on company time if the
union has not achieved the 40-percent membership level required
for recognition. However, members of legally recognized unions
must be allowed to attend union activities. Although many
employers habitually resist recognition and force the issue
into the Industrial Court, the Court has generally ruled in
favor of the unions on this issue.
While collective bargaining does occur, it is not widespread.
The Government issues directives on wage levels and thus
restricts the bargaining process. The Industrial Court may
refuse to register agreements in the event of nonobservance of
these government directives. The COE has criticized this as a
violation of ILO Convention 98.
There are no export processing zones in Swaziland.
c. Prohibition of Forced or Compulsory Labor
Forced labor is legally prohibited and does not exist.
d. Minimum Age for Employment of Children
The Employment Act of 1980 prohibits the hiring of a child
below the age of 15 in an industrial undertaking, except in
cases where only family members are employed in the firm or in
technical schools where children are working under the
supervision of a teacher or other authorized person.
Legislation limits the number of night hours which can be
worked on schooldays and limits such work overall to 6 hours
per day or 33 hours per week. Employment of children in the
formal sector is not customary. However, it is widely believed
that children are frequently employed below the minimum age in
the agricultural sector, particularly in the country's eastern
cotton growing region.
e. Acceptable Conditions of Work
There is no overall minimum wage, but rather a sliding scale of
minimum wages depending on the type of work. Most workers
receive a minimum of 14 days' annual leave after each period of
12 months of continuous service. These standards are upheld in
the formal sector, and generally provide a worker and family
with an adequate standard of living within the context of Swazi
society.
There is a labor/management/government-negotiated maximum
48-hour workweek in the modern sector, enforced by the
Commissioner of Labor, except for security guards, who work up
to six 12-hour shifts per week. All workers are legally
entitled to 1 day of rest per week under the Employment Act and
the Wages Act.
Extensive legislation protects worker health and safety in
Swaziland. The Government sets safety standards for industrial
operations and encourages private companies tp develop accident
prevention programs. Recent growth in industrial production
has necessitated more government action on safety issues. In
1986 only 20 safety inspections by the Labor Commissioner's
Office took place, none in manufacturing industries. In 1990
there were 38 "health and safety inspections (8 in manufacturing
industries). This total is down sharply from 1989 because of
staffing gaps in the Labor Commissioner's office. There were
1,368 cases of occupational illnesses and accidents reported to
the Ministry of Labor in 1990, of which 44 were fatal.
Although these figures represent an increase over previous
years, they are not out of proportion with the rapid growth in
industrial employment.
