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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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