Further to its mandate under Article 45 of the African Charter on Human and Peoples’ Rights (the African Charter), and following authorization by the Government of the Kingdom of Swaziland, a delegation of the African Commission on Human and Peoples’ (the African Commission) undertook a Promotion Mission in the Kingdom of Swaziland from 07 to 11 March 2016.
This Promotion Mission, which is a follow up to the Mission conducted by the African Commission in the country from 21 to 25 August 2006, aims at reviewing the general situation in the country and thematic issues related to: freedom of expression and access to information; issues relating to prisons and conditions of detention; matters pertaining to the abolition of the death penalty; freedom of association and assembly; independence of the judiciary; women’s rights; the rights of persons living with HIV/AIDS; and information regarding the impact of the extractive industries sector on human rights and the environment.
The delegation of the African Commission comprised:
· Honourable Commissioner Pansy Tlakula, the Chairperson of the African Commission and Special Rapporteur on Freedom of Expression and Access to Information in Africa;
· Honourable Commissioner Solomon Dersso, Chairperson of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa; and
· Mrs. Abiola Idowu-Ojo and Ms. Eva Heza, Legal Officers at the Secretariat of the Commission in Banjul, The Gambia, assisting the Commissioners.
During the Mission, the delegation met with various stakeholders at the high level in Government, the media, CSOs, as well as other actors who are involved in the protection and promotion of human rights in Swaziland.
The mission commenced with a brief visit to the Office of the Minister of Justice and Constitutional Affairs, H.E. Mr. Edgar Hillary, who received the delegation and led it to a courtesy call and working meeting with the Prime Minister of Swaziland, H.E. Dr. Barnabas Sibusiso Dlamini. The delegation briefed the Prime Minister about the objectives of the Promotion Mission, which included an assessment of the status of implementation of the obligations of Swaziland under the African Charter, as well as follow up on past recommendations and decisions of the African Commission pertaining to the Kingdom of Swaziland.
The delegation also held constructive discussions with the Prime Minister about the efforts being made by the Swazi Government towards the fulfilment of its human rights obligations, including amongst others: freedom of association and assembly; political participation; the independence of the judiciary; the status of the death penalty; freedom of expression and the media; and implementation of the African Commission’s decisions.
The delegation held a meeting with H.E. Chief Mgwagwa Gamedze, the Minister of Foreign Affairs & International Cooperation. The Honourable Minister expressed appreciation regarding the work of the African Commission in the promotion and protection of human rights on the continent. He indicated that the Swazi Government takes its human rights obligations seriously, and amongst others is currently in the process of finalizing its Universal Periodic Review (UPR) Report, which will be presented to the Human Rights Council in May 2016. In this context, discussions were held on the overdue and outstanding Periodic Reports of Swaziland under the African Charter and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol). The Honourable Minister then assured the delegation that Swaziland would work towards submitting its Periodic Report to the African Commission before the 59th Ordinary Session, which will be held in October 2016. The delegation also stressed the importance of ratification and domestication of all outstanding international and regional human rights instruments.
The delegation also held discussions with:
· H.E. Mr. Paul Dlamini, the Deputy Prime Minister;
· H.E. Mr. Themba Msibi, Speaker of the House of Assembly;
· Honourable Justice Bheki Maphalala, Chief Justice of the Kingdom of Swaziland;
· Honourable Mr. Phiwayinkhosi Mabuza, sitting in for the Minister of Information, Communications and Technology;
· Honourable Senator Jabulile Mashwama, the Minister of Natural Resources and Energy;
· Mr. Norman Gamedze, the Under Secretary, Ministry of Labour;
· Mr. Maxwell Masuku, the Director, Ministry of Public Service;
· Commissioner Isaac Mmemo Magagula, Royal Swaziland Police Service;
· Commissioner General Isaiah Ntshangase, His Majesty’s Correctional Services;
· The Election and Boundaries Commission;
· The Commission on Human Rights and Public Administration/Integrity;
· The National Emergency Response Council on HIV/AIDS;
· The Ambassador of the European Union Delegation to the Kingdom of Swaziland;
· The Resident Coordinator of the United Nations Development Program;
· The Vice Chancellor and Officials and students of the Faculty of Law, University of Swaziland;
· The Law Society of Swaziland;
· Media Institute of Southern Africa (MISA);
· Trade Unions; and
· CSOs working in Swaziland.
The delegation visited the Matsapha Correctional Centre, the Mawelawela Women’s Correctional Centre and the Vulamasango School where juveniles in conflict with the law receive education.
After the various visits and exchanges, the delegation notes the efforts that have been made by the Kingdom of Swaziland and other stakeholders towards the realisation of the rights guaranteed by the African Charter, and wishes to highlight some of its preliminary findings.
In this regard, the delegation:
· Notes the opportunities presented by the Bill of Rights and other progressive provisions of the Constitution, for the promotion and protection of human rights in the country;
· Commends the ratification of the Maputo Protocol;
· Further commends the establishment and operationalization of the Commission on Human Rights and Public Administration/Integrity;
· Further commends the adoption of the Children’s Protection and Welfare Act (2012), which prohibits child marriage and urges the Government to ensure the full and effective implementation thereof;
· Notes the efforts made by the Swazi Government to enhance the proper functioning of the Judiciary;
· Commends the use of alternative sentencing for first and second time offenders;
· Notes with appreciation the resettlement program for previous offenders;
· Commends the incorporation of human rights in the training of the Royal Swaziland Police, as well as efforts towards professionalizing the force;
· Notes with satisfaction the educational and other skills acquisition facilities provided to prisoners; and
· Acknowledges the strategies and measures put in place by the Government, in the fight against HIV/AIDs pandemic in the country.
The delegation however remains concerned about certain challenges, which inhibit the full realisation and enjoyment of human rights by the citizens, and in this regard wishes to highlight the following:
· The delay in initiating a comprehensive law reform process, in order to align all existing laws with the Constitution, and in with particular the Bill of Rights;
· The failure to domesticate regional and international human rights instruments duly ratified by Swaziland, including the African Charter and the Maputo Protocol;
· The delay in enacting relevant enabling legislation to operationalize some provisions of the Constitution, including amongst others, enabling laws for the Commission on Human Rights and Public Administration/Integrity;
· The lack of effective and adequate separation of powers, which hinders the full and effective performance of the oversight role of Parliament and the delivery of justice by the Judiciary;
· The shortage of Judges, inadequate facilities for the Judiciary and alleged poor management, resulting in the backlog of cases and inhibition of access to justice;
· The delay in enacting bills which have the potential to enhance the enjoyment of human rights, such as: the Sexual Offences and Domestic Violence Bill; the Access to Information Bill; the National Pension Bill; the Workmen’s Compensation Insurance Fund Bill; the Swaziland Broadcasting Bill; the Swaziland Broadcasting Corporation Bill; the Public Order Bill; and the Suppression of Terrorism Act Amendment Bill;
· The lack of full enjoyment of the right to freedom of expression, in particular media freedom resulting in self censorship by the media, and also creating the potential for the inhibition of academic freedom;
· The lack of full enjoyment of the right to freedom of association, in particular non-registration and participation of political parties;
· The continued existence in the statute books of several laws which restrict the right to freedom of expression, such as laws that criminalise defamation and sedition, and the lack of legislation on access to information;
· Inadequate financial independence and funding for oversight institutions, such as the Commission on Human Rights and Public Administration/Integrity and the Election and Boundaries Commission;
· The failure to ensure gender parity in the Judiciary and Parliament, including the non-implementation of Section 86 of the Constitution;
· The existence of draft laws which have the potential to inhibit the enjoyment of human rights, such as the Public Service Bill and the Electronic Evidence Bill;
· The continued existence of the death penalty in the statute books, despite that no death sentence has been carried out since 1983;
· The overcrowding in prisons and detention facilities;
· The lack of a legal framework to promote gender parity and enhance women’s rights, including on issues of access to land and gender equality in marriage;
· The lack of full and effective implementation of some of the provisions of the Constitution, including as regards appointment to constitutional positions; and
· The alleged cases of involuntary sterilization of women living with HIV/AIDS.
In light of the above, the African Commission urges the Government to:
· Conduct a comprehensive law reform exercise in order to align its laws with the Constitution, as well as to enact relevant enabling legislation, so as to ensure the full and effective implementation of the Constitution;
· To take steps to domesticate relevant regional and international human rights instruments, so as to enhance the framework for the promotion and protection of human and peoples’ rights in Swaziland;
· To have an independent, comprehensive review of all the issues affecting the effective functioning of the Judiciary, such as effective management of its existing resources;
· Capacitate Parliament, in order to ensure the full and effective discharge of its oversight role;
· Expedite the processes for the enactment of draft laws, which have the potential to improve the enjoyment of human rights in Swaziland;
· Provide adequate financial, human and material resources to the Commission on Human Rights and Public Administration/Integrity, in order to ensure the full and effective discharge of its mandate;
· Enhance the environment within which human rights defenders and CSOs operate, and in this regard recommends that the Government considers adopting laws for the protection of human rights defenders, in line with the African Commission’s Resolutions on Human Rights Defenders including ACHPR/Resolution 69 (XXXV)04, ACHPR/Resolution 119 (XXXXII)07, and ACHPR/Resolution 196 (L)11 and the United Nations Declaration on Human Rights Defenders (1998);
· Ensure the full enjoyment of the right to freedom of association, including by political parties;
· Repeal all the laws which inhibit the full enjoyment of the right to freedom of expression;
· Enact a national legislation on access to information, to ensure free flow of information;
· Adopt an official moratorium on the death penalty, as a step towards the definitive abolition of the death penalty;
· Take all necessary measures to ensure gender parity in Parliament and in the Judiciary, including by effectively implementing Section 86 of the Constitution, and also introducing other affirmative action measures, including in its electoral system; and
· Submit its Periodic Report under the African Charter and the Maputo Protocol in August 2016, in line with the commitment expressed during this Mission.
Additionally, the delegation recommends ratification of the following regional and international instruments including;
· The Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples Rights and make the Declaration provided for in Article 34(6) of the Protocol which allows direct access to the African Court on Human and Peoples’ Rights to individuals and NGOs;
· The African Charter on Democracy, Elections and Governance;
· The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;
· The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights;
· The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
· The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
The delegation wishes to thank the Government of the Kingdom of Swaziland and its people for their very warm reception and hospitality, as well as for the frank and constructive dialogue during the Mission. The delegation is truly grateful to the Government for the facilities and services placed at its disposal during the Mission, and singles out for special gratitude, the Minister and Ministry of Justice and Constitutional Affairs, and the Executive Secretary of the Commission on Human Rights and Public Administration/Integrity for the excellent arrangements put in place which enabled the delegation to meet a cross-section of the Swazi society, in order to have a fairly representative view of the human rights situation in the country.
The delegation will prepare a Report of the Mission, which will be tabled before the Commission for consideration and adoption at one of its upcoming sessions, followed by onward transmission to the Government of Swaziland.
Done in Mbabane, Kingdom of Swaziland, 11 March 2016
