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Title: Swaziland Human Rights Practices, 1995 Author: U.S. Department of State Date: March 1996 SWAZILAND Swaziland is governed as a modified traditional monarchy with executive, legislative, and (with some limitations) judicial powers ultimately vested in the King (presently Mswati III). The King rules according to unwritten Swazi law and custom, in conjunction with an elected Parliament and an accompanying structure of published laws, implementing agencies, and an independent judiciary. Despite the 1993 parliamentary elections, the election of regional and local councils in September and October of 1994, and municipal elections in the spring, political power continues to rest largely with the King and his circle of traditional advisers. The 1968 Constitution, originally suspended by the present King's father in 1973, remained in suspension. The King occasionally issued decrees, based upon this 1973 suspension, which carry the force of law. Both the Umbutfo Swaziland Defense Force and the Royal Swaziland Police operate under civilian control and are responsible for external and internal security. The police harassed and arrested political activists from prohibited political organizations. There were credible accusations of excessive force, abuse, and torture by the police in the interrogation of criminal suspects. Swaziland has a free market economy, with relatively little government intervention. The majority of Swazis are engaged in subsistence agriculture, although a relatively diversified industrial sector now accounts for the largest component of the formal economy. The economy relies heavily on the export sector, especially the soft drink concentrates, sugar, and wood pulp industries, composed primarily of large firms with predominantly foreign ownership. A governmental organization maintains large investments in all major sectors of the industrial, agricultural, and services economy. There was little change in the overall human rights situation. Citizens are not able to change their government. The Government restricted freedom of assembly, continued prohibitions on political activity and parties, harassed journalists from both the only independent newspaper and the government newspaper, and detained or arrested members of political groupings. Police continued to use excessive force, especially during the interrogation of criminal suspects, and the authorities rarely punished offenders. The Government's frequent use of a nonbailable offense provision, strengthened by act of Parliament in 1994, continued to cause overcrowding in detention facilities. Prison conditions are poor. The Government framed new industrial relations legislation, containing draconian penalties for various violations of the law, which both unions and organized business rejected. Legal and cultural discrimination and violence against women, and abuse of children, remained serious problems. 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 reports of political or other extrajudicial killings. b. Disappearance There were no reports of politically motivated disappearances. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment There were credible reports by criminal defendants of the use of torture during interrogation. A number of defendants accused police of employing the "Kentucky" method of interrogation, where suspects are made to squat, their hands cuffed behind their knees, a thin pole run between hands and knees, and the suspect hung between two desks. Officers then kick the suspect until a confession is extracted. Other forms of police brutality continued to be a major problem. Criminal suspects routinely complained that police beat them in the course of interrogations, and occasionally complained of being suffocated through use of a tube around the face and mouth. The Government failed to prosecute or otherwise discipline police officers for such abuses. Courts did, however, throw out confessions induced through such physical abuse. On two occasions, the Government charged police officers with the rape of a criminal suspect; both cases ended in the officers' acquittal. The Government finally released the report of an official inquiry into the 1990 "Black Wednesday" incident when police and army units beat University of Swaziland student protesters. The report condemned the actions of the police, finding the use of force "brutal and excessive," and recommended the criminal prosecution of the then assistant commissioner of police, who directed the beatings. The Government has so far taken no action against the former assistant commissioner. Student commemoration of this event in November 1994 led to accusations of property damage and harassment of nonparticipants, the early closure of the University at year's end, and student protests and a hunger strike by expelled students in January and February. University life returned to normal after the King ordered the reinstatement of all students and the commencement of classes in February. Prison conditions are poor but not life threatening. Food is generally adequate, although sometimes family members must bring food to supplement the sparse prison diet. Medical care is inadequate. Use of the nonbail provision led to continued overcrowding in government remand centers, where suspects are held during pretrial detention (see Section l.d.). Women and juveniles are held in separate prison facilities. d. Arbitrary Arrest, Detention, or Exile The law requires warrants for arrests in most circumstances, except when police observe a crime being committed or have reason to believe that a suspect will flee. Detainees may consult with a lawyer of their choice and must be charged with violation of a statute within a reasonable time, usually 48 hours, or, in remote areas, as soon as the judicial officer appears. The authorities generally respect these rights in practice. The Government continued to limit provisions for bail for crimes appearing in the Nonbailable Offenses Order, effective August 24, 1993. The Minister of Justice may amend the list, which currently has 10 offenses, by his own executive act. An 11th offense, involving narcotics, is reportedly in the preparation stage, because of growing concern regarding drug use and drug dealers in Swaziland. The mere charge of the underlying offense, without any evidentiary showing that the suspect is involved, is sufficient to employ the nonbailable provision. In January police arrested 12 members of a banned political organization, the People's United Democracy Movement (PUDEMO), when members atttempted to hold a political rally in Piggs Peak. The 12 were released after a weekend in jail, with no charges filed. The Government does not use exile for political purposes. There are no formal barriers to prevent the return of dissidents. e. Denial of Fair Public Trial Judicial powers are vested in a dual system, one independent and based on Western law, the other based on a system of national courts which follows unwritten, traditional law and custom. In treason and sedition cases, the King can circumvent the regular judiciary by appointing a special tribunal, which may adopt rules and procedures different from those applied in the High Court. However, this power was last used in 1987. The modern judiciary consists of the Court of Appeals, (composed entirely of expatriate, usually South African judges), the High Court, and magistrates' courts, which are independent of executive and military control and free from intimidation from outside forces. The expatriate judges, often distinguished members of their respective bars, serve on the basis of 2-year, renewable contracts. Local judges serve indefinitely on good behavior. 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. Most citizens who encounter the legal system do so through the traditional courts. The authorities may bring ethnic Swazis to these courts for relatively minor offenses and violations of traditional law and custom. In traditional courts, defendants are not permitted formal legal counsel but may speak on their own behalf and be assisted by informal advisers. Sentences are subject to review by traditional authorities and to appeal to the High Court and the Court of Appeals. By law, the public prosecutor has the authority to determine which court should hear a case, but in practice the police usually make the determination. Accused persons have the right to transfer their cases from the traditional courts. In April the Government arrested seven members of PUDEMO in Piggs Peak when they attempted to mark the 22nd anniversary of the suspension of the Constitution with a public commemoration. The seven were held for 10 days and then released on bail. Originally charged with contravening the 1973 Emergency Proclamation for holding a political meeting without a permit, the Government later dropped this charge and accused the seven of various minor offenses relating to their arrest. At trial six of the seven were acquitted for lack of evidence, and the seventh convicted of malicious damage to police property. The court postponed sentencing, allowing for restitution by the defendant to the Government. The trial of 49 members of PUDEMO and its sister organization, the Swaziland Youth Congress (SWAYOCO), arrested by police in late December 1994 when the two groups staged a public rally in Siteki, has been delayed by the court several times. The 49 have been charged by the Government with holding a political meeting without a permit, possession of political pamphlets, and disturbing traffic. Tighter Judicial Service Commission (JSC) supervision of magistrates and the institution of a training and inspection magistrate group to supervise courtroom performance led to significant reductions in judicial delay in l994. However, delays in bringing cases to court this year led to several brief sit-down strikes by criminal detainees protesting their continuing detention without trial. There were no reports of political prisoners. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence The law requires a warrant from a magistrate before police may search homes or other premises, and police generally respect this requirement in practice. However, police officers with the rank of subinspector or higher have the right to search without a warrant if they believe evidence might be lost through delay in obtaining a warrant. While searches without warrants occur occasionally, the issue of legality of evidence rarely arises in court. There is no evidence that the Government systematically monitors private correspondence or conversations. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press Freedom of speech, especially on political matters, remains limited, including in the Parliament. The media, both government-controlled and private, practice self-censorship in regard to the immediate royal family and national security policy. On three occasions the Government prosecutor ordered the arrest of newspaper personnel. In March four journalists of the government newspaper were arrested and briefly detained for the publication of allegedly confidential information regarding a rape case before the local courts. In June four journalists, two from each of the daily newspapers, the government-owned one and the privately owned one, were arrested and briefly detained for technical violations of the Books and Newspaper Act of 1963. The Government prosecutor unsuccessfully attempted to close the newspapers as a condition of the granting of bail for the four men. The government journalists, after a short trial in July, were found guilty of the various technical offenses of the Newspaper Act, and of publishing confidential information in the rape case, and sentenced to fines or short jail terms. The paper has appealed the convictions, and the journalists remain free on bail. Following a printed apology by the independent newspaper in August, the Government dropped the charges against that paper's journalists. Also in August, the Government arrested three journalists of the government newspaper and briefly detained them for the publication of allegedly defamatory material, and for contempt of court, concerning published remarks directed at a judge and prosecutor. No formal charges have yet been filed in the case, and the defendants remain free on bail. The day after the story appeared, the paper ran an apology, and suspended the editor who wrote the allegedly defamatory piece. The Government showed its hostility to the press in other ways as well: the Government continued to refuse to grant the expatriate owner and publisher of the independent newspaper a renewal of his work permit (now pending for over a year), and in an incident in June, a member of the royal family assaulted a photographer for the independent paper taking pictures of a vocational student protest at the royal palace. Nearby police observed the assault but did not intervene. Despite the harassment, both papers continued to treat a wide range of sensitive topics, and to criticize government corruption, inefficiency, and waste. The government-owned television and radio stations--the most influential media in reaching the public--generally followed official policy positions. Private companies and church groups own several newsletters, magazines, and one radio station that broadcasts throughout the region, but these avoid political controversy. The practice of self-censorship and the prohibition of political gatherings limits academic freedom. After a student-led commemoration of Black Wednesday at the university in November 1994 led to accusations that student activists had damaged property, and harassed nonparticipants, the University Senate voted to close the university. The university then established an informal inquiry panel to interview students and pass judgment on their fitness to attend class, and in January denied entry to a number of students who refused to sign an agreement governing student behavior. After renewed protests by the student body, and a hunger strike by the students concerned, all students were admitted to class on order of the King, and classes resumed. b. Freedom of Peaceful Assembly and Association King Sobhuza's 1973 decree prohibits political parties, as well as meetings of a political nature, processions, or demonstrations in any public place without the consent of the Commissioner of Police. The authorities did not generally grant permission to hold meetings but did not rigidly enforce the 1973 decree. Political organizations often met without the required permission, without repercussions, including PUDEMO and the SWAYOCO. However, the threat of police intervention is pervasive, and on at least two occasions police harassed political groups taking part in political activities, such as peaceful meetings, rallies, and demonstrations (see Sections l.d. and l.e.). In June riot police used whips and batons to break up a march on the royal palace by vocational students protesting inferior classroom conditions. Police have also on several occasions monitored a regional discussion group formed among senators from the Parliament. Several traditional forums exist for the expression of opinion, including community meetings, national councils, and direct dialogue with village chiefs, but they depend on the sufferance of leaders and are ineffective channels for expressing real political dissent. c. Freedom of Religion Followers of all religious faiths are free to worship without government interference or restriction. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation Swazis may travel and work freely within the country. However, for travel abroad, under traditional law, a married woman requires her husband's permission to apply for a passport, and unmarried single women require the permission of a close male relative. A new Citizenship Law passed in 1992 removed several ambiguities relating to Swazi citizenship and nominally enabled nonethnic Swazis to obtain passports and citizenship documents. Bureaucratic delays, however, plagued individuals seeking these documents during the year, in part due to the common perception that nonethnic Swazis are not real Swazis. Mixed race citizens in particular are sometimes subject to unfair and discriminatory treatment. The Government treats several thousand ethnic Swazis from the former homeland of KwaZulu in South Africa as virtually indistinguishable from local Swazis and routinely grants them travel and citizenship documents. Swaziland's treatment of refugees is considered good by the United Nations High Commissioner for Refugees (UNHCR) as well as the various nongovernmental organizations (NGO's) involved in the care of these groups. The UNHCR officially registered several hundred refugees in Swaziland, the majority coming from east and central Africa. Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government Citizens are not able to exercise this right. The King retains ultimate executive and legislative authority, and political parties are prohibited. Passage of legislation by Parliament requires the King's assent to become law, which he is not obliged to give. When Parliament is not in session, the King may legislate by decree under his residual emergency powers. The King chooses the Prime Minister and, in consultation with the Prime Minister, the Cabinet. The King has been under increasing public pressure, including from within his own Government, to modernize the political system. In September the King publicly announced the need for a new constitution, and promised early consultation and drafting of such a document. Women have full legal rights to participate in the political process. In the Parliament, two women were elected to the 65-member House of Assembly, and four women elected--and two appointed--to the 30-member Senate. There are no women in the Cabinet. Three women serve as principal secretaries, the most senior civil service rank in the ministries. Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights The Government permits domestic human rights groups to operate. In 1995 two local human rights groups spoke out on human rights issues and served as a mediators in land and labor disputes. The groups criticized the Government on a number of occasions, including the Government's handling of university student protests, the arrest of journalists, and the lack of accountability and transparancy in government circles. There were no visits by international human rights organizations. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status The 1968 Constitution remains suspended. However, the Employment Act of 1980 forbids employers to discriminate on the basis of race, religion, sex, or political affiliation. Under the Act employees may bring suit against employers for discrimination, and there are also provisions for criminal prosecutions. However, there is no record of any suits or prosecutions. Reportedly, the Act has been used on occasion to bring moral suasion against employers. Women Violence against women, particularly wife beating, is frequent, 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, usually in extreme cases when intervention by extended family members fails to end such violence. The traditional courts, however, can be unsympathetic to "unruly" or "disobedient" women and are less likely than the modern courts to convict men for wife beating. In one well-publicized case, a husband received a $135 fine (500 emalangeni) for beating his wife to death. Rape is also a common crime and is regarded by many men as a minor offense. Even in the modern courts, sentences frequently amount to no more than several months in jail or a fine, or both. The Legal Code addresses legal protection from sexual harassment, but its provisions are vague and largely ineffective. Several NGO's provide support to groups affected by discrimination or abuse, including the Swaziland Action Group Against Abuse which has relations with other civic organizations as well as the Government. They provide forums to discuss spousal and child abuse and to educate the public on the rights of abuse victims. 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. As traditional marriage is governed by uncodified law and custom, women's rights are often unclear and change according to where and by whom they are interpreted. In both traditional and civil marriages, wives are legally treated as minors, although those who marry under civil law may be accorded the legal status of adults, if stipulated in a signed prenuptial agreement. Changing socioeconomic conditions, urbanization, and the increasing prominence of female leaders in government and civic organizations are slowly breaking down barriers to equality. Wives now routinely and successfully execute contracts and enter into a variety of transactions in their own names. Nevertheless, despite the 1980 Employment Act requiring equal pay for equal work, men's average wage rates by skill category usually exceed those of women. Moreover, a woman generally requires her husband's permission to borrow money, open a bank account, leave the country, gain access to land, or, in some cases, take a job. Traditional marriages consider children to belong to the father and to his family if the couple divorces. Children born out of wedlock are viewed as belonging 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. Under the Citizenship Act of 1992 a Swazi woman married to a noncitizen does not automatically pass her citizenship to their children. 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 divorce or death. Children The Government is concerned with the rights and welfare of children, and a number of laws directly address children's issues. Examples including the Adoption of Children Act of 1952, with a number of provisions for protecting children under consideration for adoption, and the Maintenance Act of 1970, which includes various provisions regarding the enforcement of maintenance decrees for the benefit of women and children. Child abuse is a serious problem in Swaziland. A government task force continued to educate the public on children's issues. In June the Government ratified the United Nations Convention on the Rights of the Child. People with Disabilities The Government, through the Ministry of Home Affairs, has called for equal treatment of the disabled but has not initiated legislation to prohibit discrimination against them. For example, there are no laws mandating accessibility for the disabled to buildings, transportation, or government services. Section 6 Worker Rights a. The Right of Association The Industrial Relations Act (IRA) of 1980 affirms the right of trade unions to organize and associate freely. It permits workers in all sectors of the economy, including the public sector, to join unions. Unions operate independently of government or political control, provided they act as economic, rather than political, organizations. The main trade union federation is the Swaziland Federation of Trade Unions (SFTU). The Swaziland Federation of Labor, a breakaway federation formed from the SFTU in 1993, gained formal recognition from the Government in 1994. 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, including the election of officers by secret ballot. The Labor Commissioner must approve the union constitution, and he can strike out or amend provisions which violate the law. The Government may dissolve unions which fail to maintain proper registration with the Labor Commissioner without recourse to judicial review, but it has never exercised this authority. The law prohibits strikes in "essential" services, which cover electricity, water, fire, health, sanitary, telephone, telegraph and broadcast, and teaching services, and many civil service positions. 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 to enjoin a union from striking. 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 may then issue a 14-day postponement, which may be extended upon presentation of further documentation. There were a number of strikes, usually over wages and benefits, or dismissal of fellow workers. In March the SFTU called a mass stay away in regard to 27 demands presented to the Government in 1994. These demands addressed a wide range of issues, including recognition of affirmative action, a national uniform minimum wage, ending discrimination against women, housing for workers, and inclusion of workers in constitutional discussions. The stay away ended after 2 days, when the Government agreed to negotiate with unions and business over the 27 demands. In April the Government tabled a new draft Industrial Relations Act, which, while answering some of the union demands, also contains stiff penalties for mass stay aways and other labor action that violate the new Act. After government foot-dragging in negotiations, the SFTU threatened a renewed labor stay away in July. The Government, labor, and business agreed at the last moment to a formal negotiating sequence involving the 27 demands and the new Industrial Relations Act, and the SFTU called off its new stay away. In the fall negotiations continued among the three parties. Against this backdrop of heightened labor discord, the Government moved to strip the SFTU leader of his citizenship, but relented under considerable local and international pressure. SFTU leadership made credible accusations of government surveillance and intimidation of union activists. SFTU leadership reported receiving numerous threats, including death threats, from anonymous sources. In August the SFTU leader was kidnaped and robbed while driving along a remote highway, and briefly held in the trunk of his car. Union leadership accused the Government of involvement, which the Government denied. The International Labor Organization (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 of which Swaziland ratified in 1978. The COE concerns include the 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 Government tolerates the unions' international affiliations but does not recognize them. b. The Right to Organize and Bargain Collectively The IRA provides for the right to organize and bargain collectively and outlaws antiunion discrimination. Collective bargaining is widespread; approximately 80 percent of the formal private sector is unionized. The Industrial Court may refuse to register agreements in the event of nonobservance of government directives on wage levels. The COE has criticized this as a violation of ILO Convention 98. The law obliges employers to recognize a union when it achieves a 40 percent membership among employees. Disputes are referred to the Labor Commissioner and the Industrial Court, if necessary. Employers must allow members of legally recognized unions to attend union activities on company time. Although many employers resist recognition and force the issue to the Industrial Court, the Court has generally ruled in favor of the unions on recognition. The law limits the Industrial Court with respect to granting redress in the case of unfair dismissal. The Court may not order reinstatement and may award compensation only to the extent of 6 months' salary. Union leadership have on a number of occasions made credible charges that management in various industries have summarily dismissed workers for union activity. The Government sometimes instigates such dismissals. There are no export processing zones. c. Prohibition of Forced or Compulsory Labor The law prohibits forced labor, and it is not known to exist. d. Minimum Age for Employment of Children The Employment Act of 1980 prohibits the hiring of a child below the age of 15 years 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 children's work hours overall to 6 per day or 33 per week. Employment of children in the formal sector is not customary. However, children below the minimum age are frequently employed in the agricultural sector, particularly in the country's eastern cotton- growing region. Children are also employed as domestic workers, and as herd boys in rural areas. The Ministry of Labor is responsible for enforcement, but its effectiveness is limited by personnel shortages. e. Acceptable Conditions of Work Swaziland has a legally mandated sliding scale of minimum wages depending on the type of work. These minimum wages generally provide a worker and family with an adequate standard of living within the context of Swazi society. The minimum monthly wage for a domestic worker is approximately $50 (180 emalangeni), for an unskilled worker $75 (280 emalangeni), and for a skilled worker $125 (450 emalangeni). Labor, management, and government representatives have negotiated a maximum 48-hour workweek in the modern sector, except for security guards, who work up to six 12-hour shifts per week. The Employment Act and the Wages Act entitle all workers to one day of rest per week. Most workers receive a minimum of 14 days annual leave. The Labor Commissioner enforces standards in the formal sector. Extensive legislation protects 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. However, the Labor Commissioner's Office has conducted few safety inspections in recent years because of staffing deficiencies. Workers have no formal statutory rights to remove themselves from dangerous work places without jeopardizing their jobs; nor do any collective bargaining agreements address the matter. (###)
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