Swaziland: The headmen of the chief under the Tinkhundla system (Inner Council), including election, obligations, and responsibilities; consequences for refusing the position; state protection [SWZ104340.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. The Tinkhundla System

According to the website of the Ministry of Tinkhundla Administration and Development, tinkhundla are "intermediate structures between national government and chi[e]fdoms" (Swaziland n.d.). The Swazi constitution states the following:

The system of government for Swaziland is a democratic, participatory, tinkhundla-based system which emphasises devolution of state power from central government to tinkhundlaareas ….

  1. For purposes of political organisation and popular representation of the people in Parliament, Swaziland is divided into several areas called tinkhundla.
  2. An inkhundla [singular for tinkhundla (Van Schalkwyk Nov.2006, 258)]-
    1. is established by the King on the recommendation of the Elections and Boundaries Commission;
    2. consists of one or more chiefdoms which act as nomination areas for the elected members of the House (the primary level elections) … (ibid. 2005, Art. 79-80)

The website of the Ministry indicates that tinkhundla cover urban as well as rural areas, and that on average, each inkhundla comprises six to eight chiefdoms (Swaziland n.d.). Freedom House indicates that fifty-five of the sixty-five seats in the House of Assembly are filled by Members of Parliament elected to represent one of the tinkhundla, while the other ten are appointed by the King (2012). The constitution of Swaziland states that, of the "not more than seventy-six members" of the House of Assembly, "not more than sixty members" are elected from tinkhundla (Swaziland 2005, Art. 95).

In a document published by the Political Governance Programme of Idasa, an independent public interest organization based in South Africa that works on sustainable democracy in Africa (Idasa n.d.), the author notes that "the tinkhundla system of governance heavily relies on the existence of traditional authorities, in particular, chiefs, for its perpetuation" (Simelane August 2009, 1). Freedom House notes that chiefs are responsible for local governance (2012), while the report published by Idasa indicates that they have "the power to control the distribution of land on behalf of the King" Simelane 2009, 4). Sources also note that chiefs generally report directly to the King (Freedom House 2012; United States 24 May 2012, 16).

2. Indvuna (headmen)

In her PhD thesis on indigenous law in Swaziland, Adelle Van Schalkwyk indicates that each local chief has a headman (Nov.2006, 43). Sources indicate that the headman is called "indvuna" in Swaziland [plural tindvuna (Van Schalkwyk Nov.2006, 262)] (Dube and Magagula June 2012; UN July 2004, 6; Van Schalkwyk 2006, 43).

The constitution of Swaziland notes that:

  1. Traditionally Swaziland has a number of tindvunaor governors in charge of the regiments and the royal villages.
  2. The Indvunaof the Ndlovukazi's ["traditionally the mother of the King" (Swaziland 2005, 7(1))] residence is the first-amongst-equals or governor-general.
  3. The position of an indvunais not strictly hereditary even though appointment is made within a limited range of leading commoner families.
  4. Tindvuna assist in the traditional government of the country by carrying out certain decisions and advising iNgwenyama[the King (Van Schalkwyk Nov.2006, 257)] or Ndlovukazi in various other respects.
  5. Tindvunahear cases, give judgments and advise on the temper of the nation, organise labour for the royal fields and ensure that the royal kraals [groups of huts enclosed by a fence] and villages are periodically repaired.
  6. Tindvunaalso facilitate access to iNgwenyamaor Ndlovukazito those seeking royal audience.
  7. The Tindvuna of the royal residences will normally have a small council to consult before [m]aking a decision (Swaziland 2005, Art. 235).

A researcher with the Centre for Human Rights and Development, a civil society organization in Swaziland that has led a coalition of local NGOs in producing a report for the UN Human Rights Council's Universal Periodic Review (Civil society coalition n.d.), wrote in correspondence with the Research Directorate that "[c]hief's headmen are never elected. The chief's headman position is hereditary. It belongs to specific families in different parts of the country" (Centre for Human Rights and Development 8 Mar.2013).

In contrast, two sources consulted by the Research Directorate note that headmen are elected to their position (Simelane 2009, 4; UN July 2004, 6). According to the 2004 UN Department of Economic and Social Affairs (DESA) Country Profile on public administration in Swaziland, the term of office of headmen "coincides with Parliamentary elections" (ibid.). In their entry on the law and legal research in Swaziland in GlobaLex, an "an electronic legal publication dedicated to international and foreign law research" by the New York University School of Law (Hauser Global Law School Program n.d.), a human rights lawyer and a member of the Centre for Human Rights and Development also wrote that the post of headman was an elected one in the Hhukwini constituency (Dube and Magagula June 2012).

3. Obligations and Responsibilities of Headmen in the Tinkhundla System

The author of the paper published by Idasa writes that "[t]he chief, in liaison with his indvuna, ensures that his subjects attend royal duties," which include dances, prayers, ceremonial occasions, participating in harvests or completing duties at the chief's or King's residence (Simelane 2009, 3). The author also notes that the indvuna acts as a medium of correspondence between the chief and the community and "ensure[s] adherence to orders" (ibid., 4). Those who defy the chief or his indvuna can be fined (ibid., 3). The author added that the indvuna "acts as an eye for the chief with whom he works very closely," in order to ensure that "any 'subject,' who is seen to be participating in politics, is dealt with accordingly, sometimes even through eviction," noting that chiefdom structures are "not democratic" (ibid., 4). Van Schalkwyk notes that chiefs and headmen "share responsibilities with the [K]ing, who rules through them" (Nov.2006, 43-44).

In correspondence with the Research Directorate, the researcher from the Centre for Human Rights and Development wrote that

[t]he Headman calls meetings on command from the chief and chairs such meetings. He is also responsible for the day-to-day operations of the Chiefdom. He makes sure that the community is still intact and lives according to the values of Swazi law and custom (8 Mar.2013).

According to the UN DESA Country Profile of Swaziland, "[t]here appears to be some overlap and duplication between the roles and functions of Member of Parliament, Chief, Traditional Headman, Elected Headman, as well as local councils" (July 2004, 6-7). Further information on the distinction between traditional and elected headmen could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. Consequences for Refusing the Position of Headman

The researcher at the Centre for Human Rights and Development stated that

[t]here is no provision for refusal. Refusal to take the position can be deemed as an insult to the King. Even though no law provides for consequences for such refusal … [the person refusing] can be dealt with accordingly and all opportunities opened to him/her can be closed.… he might find it hard to live in that community ever again. (8 Mar.2013)

Corroborating information on the consequences for refusing the position of headman could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. State Protection

Information on protection available to persons who refuse a headman position could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Centre for Human Rights and Development. 8 March 2013. Correspondence sent by a project officer to the Research Directorate.

Civil society coalition. N.d. Joint Universal Periodic Review Submission Swaziland. <http://lib.ohchr.org/HRBodies/UPR/Documents/session12/SZ/JS4-JointSubmission4-eng.pdf> [Accessed 11 Mar.2013]

Dube, Buhle Angelo and Alfred Sgcibelo Magagula. June 2012. Update: The Law and Legal Research in Swaziland. <www.nyulawglobal.org/globalex/Swaziland1.html> [Accessed 28 Feb. 2013]

Freedom House. 2012. "Swaziland." Freedom in the World 2012. <www.freedomhouse.org/report/freedom-world/2012/swaziland> [Accessed 6 Mar.2013]

Idasa - An African Democracy Institute. N.d. "About Us." <www.idasa.org/about_us/> [Accessed 7 Mar.2013]

Hauser Global Law School Program, New York University School of Law. N.d. "About GlobaLex." <http://www.nyulawglobal.org/Globalex/about.htm> [Accessed 7 Mar.2013]

Simelane, Xolani. August 2009. The Role of Traditional Leaders in a Post-Tinkhundla Swaziland. <http://m.idasa.org/media/uploads/outputs/files/Traditional%20Authorities%20in%20Swaziland%20(August%2009).pdf> [Accessed 4 Mar.2013]

Swaziland. 2005. The Constitution of the Kingdom of Swaziland Act, 2005. <http://www.ide.uniswa.sz/documents/resources/constitution2004.pdf> [Accessed 28 Feb. 2013]

_____. N.d. Ministry of Tinkhundla Administration and Development. "About Us." <http://www.gov.sz/index.php?option=com_content&view=article&id=505&Itemid=430> [Date consulted: Accessed 4 Mar.2013]

United Nations (UN). July 2004. Department of Economic and Social Affairs (DESA). Kingdom of Swaziland: Public Administration Country Profile. <http://unpan1.un.org/intradoc/groups/public/documents/un/unpan023290.pdf> [Accessed 4 Mar.2013]

United States. 24 May 2012. Department of State. "Swaziland." Country Reports on Human Rights Practices for 2011. <http://www.state.gov/j/drl/rls/hrrpt/ humanrightsreport/index.htm?dlid=186248> [Accessed 4 Mar.2013]

Van Schalkwyk, Adelle. November 2006. The Indigenous Law of Contract with Particular Reference to the Swazi in the Kingdom of Swaziland. PhD thesis, University of South Africa. <http://uir.unisa.ac.za/handle/10500/1084> [Accessed 4 Mar.2013]

Additional Sources Consulted

Oral sources: Attempts to contact representatives of the following organizations were unsuccessful: University of California, Los Angeles; University of Swaziland;

Representatives of the following organizations were unable to provide information: Idasa – Institute for Democracy in Africa; Open Society Initiative for Southern Africa; High Commission of Swaziland in Washington, D.C.; Swaziland Ministry of Tinkhundla Affairs and Development. Professors from the following universities were unable to provide information: Michigan State University; University of Illinois; University of Pennsylvania. Representatives from the following organizations did not respond within the time constraints of this Response: Council of Swaziland Churches; Media Institute for Southern Africa; Swaziland Coalition of Concerned Civic Organizations.

Internet sites, including: African Studies Quarterly; AllAfrica.com; ecoi.net; Electoral Institute for Sustainable Democracy in Africa; Institute for Security Studies; International Freedom of Expression Exchange Clearing House; Southern African Institute for Environmental Assessment; Swaziland National Trust Commission; The Times of Swaziland; United Nations – Refworld; United Nations – Swaziland; WorldLIII.