United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1996 - Swaziland, 30 January 1997, available at: http://www.refworld.org/docid/3ae6aa3030.html [accessed 19 June 2013]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997 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 1994, and municipal elections in 1995, political power continues to rest largely with the King and his circle of traditional advisers. The 1968 Constitution was suspended by the present King's father in 1973; however, there were demands that the suspension be lifted. Based upon the 1973 suspension, the King has the authority to issue decrees that carry the force of law (although he did not exercise this authority in 1996). In April the King formally announced a constitutional initiative, involving a review of the suspended 1968 Constitution and the establishment of a constitutional commission to draft a new constitution. Members of the Constitutional Review Commission were announced in late July, and it met in September. The Commission has 2 years to complete its report. 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. Some members of the police use excessive force and abuse 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 concentrate, sugar, and wood pulp industries, which are composed primarily of large firms with predominantly foreign ownership. A governmental organization maintains large investments in all major sectors of the economy, including industry, agriculture, and services. There was little change in the overall human rights situation. Despite the constitutional initiative, citizens are still not able to change their Government. The Government restricted freedom of speech and assembly and continued prohibitions on political activity. The media practiced self-censorship. A journalist from the government newspaper, members of political groupings, and labor union leaders were detained or arrested. Some members of the police continued to use physical abuse and excessive force, especially during the interrogation of suspects, and the authorities rarely punished those who committed such acts. The Government's 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 adopted revised 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, as well as abuse of children, remained problems.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
At the height of the January mass labor action, police shot and killed a female protestor in Manzini.
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 "tube" style of interrogation, in which police suffocate suspects through use of a rubber tube around the face and mouth. Police routinely beat criminal suspects in the course of interrogations. The Government failed to prosecute or otherwise discipline police officers for such abuses. Courts did, however, throw out confessions induced through such physical abuse. In January police used excessive force in breaking up a protest by street vendors, injuring scores of people (see Section 2.b.). In the same month police and army units assaulted students attempting to hold a meeting (see Section 2.b.). In October police detained over 20 students protesting in Big Bend, beat them, and threatened them with prosecution and the loss of scholarships. Prison conditions are poor. 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. The Government permits prison visits by human rights monitors.
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. The mere charge of the underlying offense, without any evidentiary showing that the suspect is involved, is sufficient to employ the nonbail provision. Overcrowding, poor diet, and delays in bringing cases to court led to a brief hunger strike by criminal detainees in February protesting their continuing detention without trial. In January police detained a journalist for the government newspaper for photographing police assaulting street vendors (see Section 2.a.). In January the Government arrested and held incommunicado three labor leaders during the nationwide mass stay away conducted by the Swaziland Federation of Trade Unions (see Section 6.a.). The unionists were charged with inciting public violence under the Public Order Act, a nonbailable offense (see Section 6.a.). The leaders were released after 3 days' detention; all charges were dropped. In March the Government charged the three men with various offenses under the Industrial Relations Act for alleged illegal acts stemming from the same mass stay away. The case was subsequently postponed indefinitely by the High Court. The Government does not use forced exile. There are no formal barriers to prevent the return of dissidents.
e. Denial of Fair Public Trial
The judiciary is independent; however the King has certain judicial powers. Judicial powers are vested in a dual system, one independent and based on Western law, the other based on a system of national courts that 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, all of 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 Swazis 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. Delays in trials are common. The court has delayed the trial of 49 members of the People's United Democracy Movement (PUDEMO) and its sister organization, the Swaziland Youth Congress (SWAYOCO), for nearly 2 years. They were arrested by police in late December 1994 when the two groups staged a public rally in Siteki. The 49 have been charged by the Government with holding a political meeting without a permit, possession of political pamphlets, and disturbing traffic. While the case remains pending, the defendants are free on bail but must report to the courtroom on a regular basis. 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.
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. In January police detained a photographer for the government newspaper for taking photographs of police assaulting street vendors during a protest in Manzini. The photographer was released the same day. In June the Minister of Broadcasting interrupted the evening news broadcast of the government television station and radio station and prevented the reading of news items concerning the ongoing labor turmoil in the country. 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 2 years. After publishing a report critical of the alleged financial dealings of the King, a senior editor of the independent newspaper was forced under pressure and alleged threats of arrest to issue a public apology. Both government-owned and independent newspapers continued to treat a wide variety 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 limit academic freedom.
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, including PUDEMO and SWAYOCO, often met without the required permission without repercussions. However, the threat of police intervention is pervasive, and on several occasions police harassed political and labor groups taking part in political activities, such as peaceful meetings, rallies, and demonstrations. Police in January broke up a protest march by street vendors in Manzini with baton charges, firing tear gas and live ammunition. Scores of people were injured, including two shot by police. Also in January police and army units assaulted students with batons at the University of Swaziland when students attempted to hold a meeting concerning the ongoing nationwide strike by trade unions. A number of students were injured by police. In April a SWAYOCO activist was convicted of subversive activities and public violence for hauling down the Swazi flag during the nationwide union strike in January. The activist received a suspended sentence. In June police broke up another student meeting at a public park in Manzini, where the students were attempting to rally in favor of striking teachers. In September and October police and military personnel prevented a public meeting called by PUDEMO and the Swazi Democratic Alliance to discuss matters regarding the Constitutional Review Commission. A revised Industrial Relations Act severely restricts the ability of trade union organizations to participate in the social and political affairs of the nation. The Act prohibits unions from striking or agitating over such issues (see Section 6.a.). There was no progress in the case of the 49 members of PUDEMO and SWAYOCO who were arrested for staging a public rally in December 1994 (see Section 1.e.). Several traditional forums exist for the expression of opinion, including community meetings, national councils, and direct dialog with village chiefs, but they often depend on the sufferance of leaders and are not effective 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, under traditional law a married woman requires her husband's permission to apply for a passport for travel abroad, and unmarried women require the permission of a close male relative. A 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 mixed race and white 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 excellent 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. The issue of provision of first asylum has not arisen in recent years.
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, as well as many senior civil servants, and heads of government offices. Pressure has been building to modernize the political system. In July the King chose the members of a Constitutional Review Commission, to examine the suspended 1968 Constitution, and begin work on a new document. However, the exact duties of the Commission remained unclear. The Commission has 2 years to complete its work. Women have full legal rights to participate in the political process. There are 2 women in the 65-member House of Assembly, and 6 women hold seats in 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. There are women on the 30-person Constitutional Review Commission.
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 1996 two local human rights groups spoke out on human rights issues and served as mediators in land and labor disputes. The groups criticized the Government on a number of occasions, including the Government's handling of labor disputes, detention of labor leaders, and the lack of accountability and transparency 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 to bear against employers. Mixed race citizens sometimes experience discrimination.
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. 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, 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 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 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. Unmarried women require a male relative's permission to obtain a passport (see Section 2.d.). 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 does not automatically pass citizenship to her 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. The Government has committed itself to various women's initiatives in the wake of the 1995 Beijing Conference on Women, and the Ministry of Home Affairs coordinates women's issues.
The Government is concerned with the rights and welfare of children, and a number of laws directly address children's issues. The Adoption of Children Act of 1952 includes a number of provisions for protecting children under consideration for adoption, and the Maintenance Act of 1970 includes various provisions regarding the enforcement of maintenance decrees for the benefit of women and children. A government task force continued to educate the public on children's issues. Child abuse is a problem in Swaziland. Children convicted of crimes sometimes are caned as punishment. In May two 10-year-olds were caned for housebreaking. Fueled by demographic and social pressure, there are growing numbers of street children in Mbabane and Manzini.
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 the disabled. 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 new Industrial Relations Act (IRA), a revision of the 1980 act, affirms the right of trade unions to organize and associate freely in the context of traditional trade union concerns. However, it imposes harsh criminal penalties for union activity in favor of social or political issues outside core union concerns. Although the Act permits workers in all sectors of the economy, including the public sector, to join unions, their ability to express themselves is severely restricted. Unions can operate independently of government or political control, provided that they act as economic, other 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 Government recognition in 1994. Unions are free to draw up their own constitutions within the framework of the IRA. The act specifies a number of provisions that 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 that violate the law. The Government may dissolve unions that 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, firefighting, health, sanitary, telephone, telegraph, and broadcast, as well as many civil service positions. The teaching profession was removed from the list of essential services. The IRA details the steps to be followed when disputes arise, including what determines a legal or illegal strike. The act empowers the Government to mediate 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 and a secret ballot of union members has been conducted. The act forbids labor federations or their officers to engage in any act that "causes or incites" the slowdown or cessation of work or economic activity, or to act in any way that might be construed as a "restraint of trade." The maximum penalty for violation of these provisions is 5 years' imprisonment. The Act also provides that any labor federation that devotes more of its funds and officers' time to issues of "public policy or public administration" than to union activities may be suspended or closed down. In September the Prime Minister noted his Government's readiness to consider amending the IRA; however the Government had taken no steps to do so by year's end. In October a panel of legal experts advised that the IRA was improperly adopted, raising questions regarding its legal validity. The matter was under court review at year's end. There were a number of strikes, usually over wages and benefits, or dismissal of fellow workers. In January the SFTU conducted a mass stay away related to 27 demands presented to the Government in 1994 and to calls for fundamental political change. These demands and calls addressed a wide range of issues, including recognition of affirmative action, a national uniform minimum wage, an end to discrimination against women, the provision of better housing for workers, inclusion of worker representatives in constitutional discussions, and the lifting of the 1973 decree that suspended the Constitution and outlawed political parties. The stay away, which shut down the economy and large parts of the Government, ended after 8 days upon a command from the King that workers return to their workplaces or face the use of force. At the height of the stay away, police shot and killed a woman demonstrator in Manzini; arrested three top SFTU leaders, charged them with violations of the Public Order Act, and held them incommunicado for several days. The Government then released the leaders and dropped all charges. In March the Government reopened the case against the three leaders, this time alleging violation of the IRA. After a single hearing on the charges, the High Court indefinitely postponed the case. In July one of the three leaders, charged with fraud in connection with his former employment by a parastatal government insurance corporation, was acquitted. (These charges were filed in the aftermath of the January stay away). Also in July the Government filed an approximately $1 million claim against the SFTU for losses incurred during the January stay away. In June the Swaziland National Association of Teachers (SNAT), and the Swaziland National Association of Civil Servants (SNACS) went on nationwide strikes for higher wages. In July both organizations suspended their strikes, after the King agreed to investigate their wage demands. 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 collective bargaining agreements in the event of nonobservance of any requirement of the IRA. The law obliges employers to recognize a union when it achieves over 50 percent membership among employees. Disputes are referred to the Labor Commissioner and the Industrial Court, if necessary. Employers must allow representatives of legally recognized unions to conduct 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. In the case of unfair dismissal, the Court may order reinstatement and may award compensation of up to 24 months' salary. Union leaders made credible charges that management in various industries 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 that 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 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 of child labor regulations, 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 $40 (180 emalangeni), for an unskilled worker $65 (280 emalangeni), and for a skilled worker $100 (450 emalangeni). Labor, management, and government representatives have negotiated a maximum 48-hour workweek in the industrial 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 1 day of rest per week. Most workers receive a minimum of 12 days annual leave. The Labor Commissioner enforces standards in the formal sector. Extensive legislation protects worker health and safety. 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.