Country Report on Human Rights Practices for 1990
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
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 Parlieiment and is responsible to him. While
Swaziland obtained a constitution containing a bill of rights
at independence, it was repealed by King Sobhuza II in 1973 on
the groundo that it introduced political practices which were
incompatible with the Swazi tradition of decisionmaking.
While not cited as a reason for repeal, the Constitution also
contained restrictions on the King's executive authority.
National defense is provided by the Umbutfo Swaziland Defense
Force, consisting of fewer than 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. The economy
relies heavily on the export sector, composed primarily of
large, foreign-owned firms. Most imports come from South
Africa.
In 1990 there continued to be important restrictions on human
rights, including those on free speech, assembly, fair trial,
and political rights. Other human rights problems included
mistreatment of prisoners, detention without charge, and
discrimination (and violence) against women. In November,
while on bail pending appeal of previous convictions, two
political activists, Ray Russon and Sabelo Dlamini, requested
temporary refuge at the U.S. Embassy because they feared
arrest under Swaziland's 60-day detention order. Temporary
refuge was not granted. Following their departure from the
Embassy, and after a brief stay in South Africa, the two were
arrested by Swazi authorities and briefly staged a hunger
strike to protest their arrest.
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. Such complaints generally come from criminal, not
political, prisoners. Defendants occasionally claim that
confessions have been extorted by the police and that these
confessions are sometimes accepted by the courts. 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
exceptional circumstances. These exceptions, however, are
poorly defined, and in practice police who have strong
suspicions about a suspect do not normally seek a warrant.
Detainees are allowed to consult with a lawyer of their own
choice, and provision for bail exists. During 1990 judges
criticized police for frequently failing to charge arrestees
within the 48 hours required by law. Magistrates dismissed a
number of such cases, indicating they expected improved police
performance.
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 can only be appealed to the High Court under that
Court's general power of review, but, as yet, such an appeal
has never been heard. It is, therefore, unclear what form
such an appeal would take since the law itself specifically
prohibits any court appeal of a detention order. The only
appeal available under the detention order is one made
directly to the Monarch. In November the detention order was
invoked again against five persons suspected of fomenting
political activism on university campuses. The background to
their case is described in Section 2. a. The law, invoked
twice in 1989, and six times in 1990, has generally been used
against political opponents viewed by the Government or the
Monarch as threats to internal security or stability. On
August 17, Prince Mfanasibili Dlamini was detained without
charge under the 60 day detention order only moments after
being acquitted of charges of treason by the High Court.
Mfanasibili had been accused of plotting to escape from prison
and overthrow the present King and Government while serving an
earlier sentence imposed in 1986 on charges of obstructing
justice. He remained in administrative detention at year's
end
e. Denial of Fair Public Trial
The modern judiciary consists of the Court of Appeals, the
High Court, and various subordinate magistrates' courts which
are independent of executive and military control and free
from intimidation from outside forces. However, in sedition
cases the King has powers to circumvent the regular judiciary
by appointing a special tribunal. The special tribunal may,
if it deems it appropriate, adopt rules and procedures
different from those applied in the High Court. In 1987 King
Mswati III issued a decree that authorized a special tribunal
to try offenses committed against the King and Queen Mother.
This decree permits secret sessions, forbids the accused from
having legal representation, and does not allow an appeal.
There were no trials by special tribunal in 1990.
Some members of the regular judiciary are not Swazi but are
appointed from the bars of other countries with compatible
legal systems. 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. The
right of appeal, however, is not guaranteed to persons held
under the 1978 administrative detention law or to those
charged with sedition or an offense against the King.
The right to a fair public trial is provided for by law and is
honored in practice, with the important exception of the
special tribunals. Additionally, the court president can
order a trial to be held in secret in certain (e.g., rape)
cases, and the Prime Minister can require that a trial be held
in private. This, however, is rare and was not done in 1990.
In traditional courts, to which ethnic Swazis may be brought
for relatively minor offenses and violations of Swazi
traditional laws or customs, legal counsel is not allowed, but
defendents may speak on their own behalf. Sentences are
subject to a review system and to appeal to the High Court and
the Court of Appeals. Accused persons who desire counsel can
insist that their case be transferred from the traditional
courts. There are occasional disagreements over which court
system should have jurisdiction in a particular case. By law,
the public prosecutor has the authority to determine which
court should hear the case. However, there have been
instances in which the police determined where a case should
be tried. Unless the defendant, who may be unaware of his or
her legal rights, protests the decision, cases may be tried in
the wrong court system without the error becoming known.
Prisoners frequently complain of undue delays in their cases
coming to trial. Such delays are generally the result of
bureaucratic inertia rather than a deliberate policy. A
shortage of trained magistrates and proper courtroom equipment
regularly contributes to these delays.
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 reasonable cause to believe evidence can
be obtained that might otherwise be lost through delay in
obtaining a warrant. While searches without warrants do occur
relatively frequently, the issue of legality of evidence, or
the method by which evidence is obtained, rarely arises in
court.
On February 5, police mounted an early morning raid on a
teacher training college, apparently in search of allegedly
seditious pamphlets critical of the King. Dormitory rooms and
the personal effects of students were thoroughly searched. It
was never clear whether the police were in possession of
search warrants. Police did use a warrant in September, when
the house of a former parliamentary leader was raided in
search of similar materials.
There is no evidence that the Government actively monitors
private correspondence or conversation, 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 conversation or in telegraphic
correspondence.
Section 2 Respect for Civil Liberties, Includingj^
a. Freedom of Speech and Press
Freedom of speech is limited. The Parliament serves as a
lively forum for examination and criticism of government
policies, but matters are seldom pressed to a vote and, when
they are, unanimity is usually the result. A Swazi's main
traditional forum for expressing discontent is through his or
her chief, and public condemnation of certain policies and
people is not permitted. Criticism of the royal family and of
national security policy is forbidden.
The media, both government controlled and private, practice
self-censorship, refraining from criticism of sensitive or
controversial issues involving the royal family, but
frequently openly criticize and question other actions of the
Government and the business community. Swazi radio and
television stations are government controlled, and there is
also a semiofficial newspaper. Private companies and church,
groups publish several newspapers and magazines.
In August the Government reinforced the practice of
self-censorship by announcing new press guidelines that called
for the self-censorship of any story which covered in advance
the movements of the King or Prime Minister. The guidelines
also broadly admonished the press to avoid any stories that
would degrade the image of the King, sow division within the
country, or cause an uprising against the King and the
Government. This announcement may have been more a reminder
of a longstanding unwritten understanding with the media
concerning self-censorship than any new crackdown on press
freedom.
In June and July, 14 people were arrested in connection with
the alleged publication and distribution of seditious
pamphlets. The pamphlets were sharply critical of the King's
policies and lifestyle and called for a democratic, multiparty
political system. In directly related charges, the group was
also accused of plotting to overthrow the Government and of
forming a political party, the People's United Democratic
Movement, or PUDEMO. Ultimately, 10 persons were brought to
trial. Of these, four were acquitted of all charges, while
the remaining six were found guilty on the minor charges of
organizing and participating in political meetings without
police permission. Four of the six were sentenced to 6-month
jail terms and released because they had already served this
time while awaiting trial. Two others were sentenced to
consecutive 6-month terms, but were released on bail pending
the appeal of their verdicts. In late November, 4 of the 10,
plus 1 of the 14 original arrestees, were rearrested, this
time without charges under the 60-day detention order. This
occurred in connection with the outbreak of student unrest
described in Section 2. b.
The Government has occasionally proscribed publications,
including foreign publications, deemed to be prejudicial to
the interest of defense, public safety, or public health. No
such bannings have occurred since 1985. In fact, the
Parliament is presently considering unbanning two publications
banned in the early 1980 's. Academic freedom is also limited
by the practice of self-censorship and the prohibition of
overtly political gatherings. However, the academic community
in the past year has sponsored several lively and
we 11 -attended public debates on topics such as political
expectations and human rights.
b. Freedom of Peaceful Assembly and Association
King Sobhuza's 1973 decree prohibits meetings of a political
nature and demonstrations in any public place without the
consent of the Commissioner of Police. In practice, this law
has not been extended to all public gatherings. However, the
Government uses this power to stop meetings which might be
embarrassing to it. In March, for example, police turned down
the application for a public gathering by the Swaziland
National Association of Unemployed People and thereby declared
illegal the group's first attempt to hold a meeting. In the
face of public criticism, however, the Government relented and
granted the permit a week later.
On November 14, Swazi police and paramilitary troops brutally
broke up a sit-in at the University of Swaziland after
students had boycotted classes because of discontent over a
number of political and academic issues. Approximately 80
students were injured, 5 seriously. There were confirmed
reports that soldiers had targeted female students for the
worst beatings. Five people suspected of encouraging illegal
political activism on two campuses were detained without
charges by the police.
Political parties are prohibited by Swazi law under the King's
1973 decree. It is on charges of contravening this law,
together with the related charges of treason and sedition
alluded to in Section 2. a., that the 14 alleged members of
PUDEMO were tried.
There are no formal legal barriers to freedom of association,
other than the ban on political parties. However, groups seen
as critical of the Government or as being involved in
quasi-political activities are occasionally subjected to
harassment by authorities. 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 beliefs, informally
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. No such incidents occurred in 1990.
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, and citizenship is
not revoked for political reasons. Swazi men generally can
obtain a travel document to travel in the region, but the
Government occasionally refuses to issue a passport if the
applicant does not appear to have adequate means of support
while abroad. Married women recjuire the husband's permission
to apply for a passport.
Swaziland treats displaced persons from neighboring states
well. About 7,000 primarily ethnic Swazis from South Africa,
who fled Zulu administration in the black South African
homeland of KwaZulu, reside in Swaziland. Recent years have
seen a large influx in the number of Mozambican refugees.
While approximately 32,400 are officially registered by the
United Nations High Commissioner for Refugees (UNHCR) , it is
believed that an additional 30,000 or more may be in Swaziland
illegally. Swaziland permits the UNHCR to interview those who
seek refugee status and grants asylum if the person can
establish that he or she will face persecution if
repatriated. Illegal aliens who cannot establish their
refugee status, however, can be deported. In practice, many
of those refugees identified for deportation end up serving
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.
In March a small number of young South Africans fleeing
internecine violence in Natal began to arrive in Swaziland.
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.
On several occasions, these youths have damaged property or
committed other petty crimes at the Malindza refugee camp
where they are temporarily housed. Generally in such cases,
they are arrested, declared prohibited immigrants, and then
deported to Zambia once the UNHCR receives the funding to do
so.
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 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's power is absolute, and
he can 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. While public debate of political matters
under consideration by the Monarch is rare, in 1990 all adult
citizens were invited to participate in a "people's
parliament," an open air public debate in which certain of the
Government's leaders and policies were sharply criticized.
Swazis participate indirectly in the selection of Members of
Parliament. 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
King can dissolve the Parliament and call new elections,
normally held every 5 years.
Section 4 Governmental Attitude Regarding International and
Nongovernmental Investigation of Alleged Violations
of Human Rights
There are no organizations that exclusively promote human
rights in Swaziland. However, the Law Society of Swaziland
does provide information and services related to human rights
concerns and issued appeals for a judicial inquiry into the
November university campus incident. The Government does not
encourage activities by international nongovernmental human
rights organizations, and it received no requests for
investigations from such organizations during the year.
Section 5 Discrimination Based on Race, 'Sex, Religion,
Language, or Social Status
Swazi governmental and social traditions give rise to
discriminatory treatment between ethnic and nonethnic Swazis.
For example, ethnic Swazis from south Africa seeking political
refuge in Swaziland are treated much like Swazi citizens and
are often given work permits. Those who are not ethnic Swazis
are treated as foreigners, and permits are given more
reluctantly.
Under traditional practices, women occupy a subordinate role
in Swazi society, and the dualistic nature of the legal system
complicates the issue of women's rights. A wife's legal
rights, for example, differ substantially, depending on
whether she is married under traditional or civil law. In a
traditional marriage, a woman is treated as a minor under the
law. She is not responsible for contracts she signs, and she
cannot, except in rare instances, hold real estate or inherit
property in her own name. She must normally obtain her
husband's permission to borrow money, to leave the country,
and, in some cases, to take a job. Divorce is almost never
allowed, and children are considered to belong to the father
and his family. In traditional marriages, a man can take more
than one wife. In some cases, women are compelled by family
pressure to marry without their consent, although this
practice is decreasing over time. Women who are forced to
marry do have legal recourse, but few resort to it, both out
of ignorance of their rights and out of fear of ostracism by
family members. Wives chosen by the King do not have legal
recourse. 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.
Even under civil law, a married woman is treated as a minor
unless the parties to the marriage sign a prenuptial
agreement. With a prenuptial agreement, property can be
separately maintained, and the wife can enter into contracts
and legal proceedings without her husband's consent. A man
who marries a woman under civil law legally cannot have more
than one wife, although in practice this restriction is
sometimes ignored. Divorce does not automatically lead to
loss of custody of children for the wife. Rather, custody is
awarded according to the interests of the child, and
maintenance for wives granted custody is generally provided.
Marriage is further complicated by the fact that 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. 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
frequent. Customarily, a Swazi man has the right and duty to
beat his wife and children when he deems it necessary to do
so. Women have the right under the law to charge their
husbands with assault, but few know that they can resort to
legal remedies. The traditional courts are generally
unsympathetic to "unruly" or "disobedient" women. The modern
courts are more likely to convict wife beaters, but sentences,
even when beating results in death, are frec[uently light.
In the workplace, the Employment Act of 1980 forbids employers
to discriminate on the basis of race, religion, sex or
political affiliation. It requires ec[ual pay for equal work.
However, around 75 percent of all private sector jobs are held
by men, and their average wage rate by skill category is in
some sectors three times that of women. The Swaziland
Federation of Trade Unions has a special women's wing to
address issues of discrimination in the workplace. This wing
is focusing on the issues of wage discrimination and maternity
benefits, as well as other sex-based discriminatory
practices. In 1990 this organization helped bring to light
the issue of sexual harassment of female employees by male
employers. Legal protection from sexual harassment is
addressed in the Swazi legal code, but its provisions are
vague and therefore 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. Employers are obliged
to recognize a union when it achieves 40-percent membership
among employees. Unions are able, within limits, to operate
independently of government or political control. This
independence is contingent on 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 cannot be dissolved as long as they adhere to the
regulations of the IRA. Unions which fail to maintain proper
registration with the Labor Commissioner can be dissolved.
For several years, including 1990, the International Labor
Organization's (ILO) Committee of Experts (COE) has noted
discrepancies between ILO Convention 87 on freedom of
association which Swaziland ratified in 1978 and the IRA. 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, presided over by a High Court
judge, to settle employment disputes. The Industrial Court
hears and gives judgment on disputes and grievances and may
enjoin a union from striking. While historically strikes have
been rare in Swaziland, consciousness of workers' rights is
growing rapidly. When disputes arise, the Government tries to
intervene 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.
A significant labor development was a threatened strike by the
Swaziland National Association of Teachers and the Swaziland
National Association of Civil Servants over a long simmering
dispute with the Government over a pay raise and retroactive
back pay. Such a strike would have been illegal since, under
the IRA employees in services deemed essential by the
Government, such as civil servants and teachers, are
prohibited from striking. The issue was ultimately settled in
favor of the unions outside of the IRA mechanism in complex
negotiations between the Government, the King, and the two
unions. Workers at the Post and Telecommunications
Corporation threatened to strike over wage demands at year's
end.
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. Disputes
in this area are referred to the Labor Commissioner and the
Industrial Court, if necessary. 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 generally
rules in favor of the unions. The Government wishes to avoid
labor confrontation and encourages voluntary negotiations
between employers and unions.
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 Convention 98.
There are no export processing zones in Swaziland. Labor
legislation is applied uniformly throughout the country.
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.
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. A casual
laborer must legally earn $9 per week, a security guard at
least $15 per week, and a laboratory technician, $62.
Employees receive time and a half for overtime and double pay
on Sundays or public holidays. Most workers receive a minimum
of 14 days' annual leave after each period of 12 months of
continuous service. These standards are generally upheld in
the formal sector.
While wage levels are low by Western standards, most Swazis
employed in the formal sector do relatively well. Most Swazi
families also farm and graze cattle so that even those at the
low end of the wage scale generally are able to maintain a
decent standard of living.
There is a maximum 48-hour workweek in the modern sector,
except for security guards, who work up to six 12-hour shifts
per week.
There is extensive legislation, notably in The Employment Act
of 1980, protecting worker health and safety in Swaziland.
The Government sets safety standards for industrial operations
and encourages private companies to develop accident
prevention programs. Recent growth in industrial production
has necessitated more government action on safety issues. In
1986 only 20 safety inspections took place, none in
manufacturing industries. By 1989, this figure had risen to
108, with 11 inspections of industrial operations. There were
1,030 industrial accidents reported to the Ministry of Labor
in 1989, lower than the figure for 1988 (1,075), and still
lower than the 1,275 reported in 1984. Given the rapid growth
in industrial employment, this slight decline in the level of
industrial accidents indicates progess in observance of safety
measures
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