Swaziland: Constitution

Updated July 2013

CONSTITUTION The independence Constitution came into effect on September 6, 1968, but was repealed by Proclamation by King Sobhuza II to the Nation on 12 April 1973. The new Constitution of the Kingdom of Swaziland was adopted on July 26, 2005, but does not repeal Proclamation to the Nation, 1973[1].
FORM OF STATE Monarchy[2].
HEAD OF STATE The King is the Head of State and Commander in Chief of the all the security forces[3]. The hereditary succession to the throne is governed by traditional law and custom[4].
EXECUTIVE Executive power lies with the King who exercises it directly or through the Cabinet[5]. The Prime Minister is appointed by the King, from the members of the House of Assembly, acting on the recommendation of the Advisory Council and may be removed from office by the King for incompetence[6]. The Ministers are appointed by the King on the recommendation of the Prime Minister and may be removed in the same way[7].
LEGISLATURE Legislative power is vested in the King-in-Parliament; Parliament consists of a House of Assembly and a Senate[8]. The House of Assembly consists of 55 members elected in constituencies (tinkhundla areas), 10 members appointed by the King, the Attorney-General (who may not vote) and up to four women indirectly elected by the House from a shortlist supplied by the Election and Boundaries Commission[9]. The Senate consists of 10 members elected by House of Assembly and 20 members appointed by the King. At least half of each group of Senators must be women[10].
JUDICIARY The court system is headed by a Chief Justice and is comprised of a Supreme Court (final court of appeal), a High Court and subordinate courts and tribunals[11]. The judges of the superior courts are appointed by the King on the advice of the Judicial Service Commission[12]. Judges are removable by the King for incompetence or misbehaviour only on the recommendation of the Judicial Services Commission[13].
AMENDMENTS In general amendments to the Constitution may be made by a joint sitting of Parliament and/or a national referendum[14]. Entrenched clauses may only be amended by a two-thirds majority of a joint sitting of Parliament, while especially entrenched clauses require a three-quarters majority and the approval of a national referendum[15].

Table notes

[1] EISA 2003, 1-4; Proclamation by King Sobhuza II to the Nation on 12 April 1973; Constitution 2005; Office of the Prime Minister 2005. Dube & Magagula (2012) write: "Swaziland is in a fairly unique position as it has more than one document which claims to be the supreme law of the land: the King's Proclamation to the Nation No 12 of 1973 (the '1973 Decree') and the Constitution of the Kingdom of Swaziland Act No 1 of 2005 (the '2005 Constitution'). The 1973 Decree is still in effect; a decree can only be repealed by decree, and there has been no decree repealing the 1973 Decree. The 2005 Constitution vests most powers in His Majesty... The King's (Commencement of the Constitution) Proclamation No 1 of 2006 demonstrated that the 1973 Decree was still fully operational. As things stand in the state of Swaziland in 2011, there can be little doubt that the 1973 Decree is the supreme law of the land."
[2] The King is subordinated only to the Constitution (Constitution 2005, Article 2).
[3] Constitution 2005, Article 4.
[4] Constitution 2005, Article 5.
[5] Constitution 2005, Article 64. The King is generally obliged act on the advice of the Cabinet or its members (Constitution 2005, Article 65). The members of the Cabinet are, however, appointed by the King (Constitution 2005, Article 66).
[6] Constitution 2005, Article 67(1), 68(1)(a).
[7] Constitution 2005, Article 67(2), 68(4)(a).
[8] Constitution 2005, Article 106; 93. The distribution of legislative power between these organs is complex:

  • Generally bills require the approval of both Houses and the assent of the King (Article 107, especially 107(a)).
  • If the Houses cannot agree on a Bill, the matter is referred to a joint sitting where it can be adopted by a simple majority (Article 116, First Schedule Article 3).
  • If the King withholds his assent the matter is referred to a joint sitting which can pass the Bill with a simple majority and refer the Bill back to the King for assent (Article 117, First Schedule Article 4), but this does not override the King's veto since he may apparently again refuse assent (Article 107).
  • Bills dealing with financial matters or urgent matters cannot be delayed or amended by the Senate (Articles 112-114).
  • Bills affecting traditional laws and customs can only be introduced in the Senate (Article 115(1), (6)). If the House of Assembly fails to consider the Bill it is sent to the King for assent by a two-thirds majority of Senators (Article 115(4), (5)). If the Bill is not passed by the House of Assembly, a joint session of Parliament is convened which may pass the Bill with a simple majority (Article 115(3), First Schedule Article 8 - .

[9] Constitution 2005, Article 95, 125(4). The women are elected to represent the four Regions the country is divided into (Article 95(1)(c)), but are only elected if the number of women in Parliament as a whole is less than 30% (Article 86).
[10] Constitution 2005, Article 94.
[11] Constitution 2005, Article 139(1). The jurisdiction of the High Court is curtailed in respect of traditional matters. The Court has neither original nor appellate jurisdiction over the offices of iNgwenyama and iNdlovukazi, the authorisation of a person to function as Regent, the appointment, suspension or dismissal of a Chief, the Swazi National Council and the regimental system (Constitution 2005, Article 151(8).
[12] Constitution 2005, Article 153(1).
[13] Constitution 2005, Article 158.
[14] Constitution 2005, Article 245.
[15] Constitution 2005, Article 247(1), 246(1), (3). The entrenched clauses are listed in Article 247(2) and the specially entrenched clauses in Article 246(2). The lists are too lengthy and diverse to be usefully summarised here.

References

CONSTITUTION OF THE KINGDOM OF SWAZILAND 2005, [www] http://aceproject.org/ regions-en/eisa/SZ/CONSTITUTION%20OF%20THE%20KINGDOM%20OF% 20SWAZILAND%202005.pdf [opens new window] (accessed 9 Mar 2010).

DUBE, B & MAGAGULA, A 2012 "The Law and Legal Research in Swaziland", IN Globalex, [www] http://www.nyulawglobal.org/globalex/Swaziland1.htm [opens new window] (accessed 10 Jul 2013).

EISA 2003 Election Update: Swaziland 2003 No 1 [PDF document].

OFFICE OF THE PRIME MINISTER 2005 "His Majesty Signs Constitution", July 26, [www] http://www.gov.sz/home.asp?pid=406&ItemID=4531&ToolID=2 [opens new window] (accessed 9 Mar 2010).

Proclamation by King Sobhuza II to the Nation on 12 April 1973.