United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Swaziland, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa4918.html [accessed 25 April 2014]
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.
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 a newly elected Parliament and an accompanying structure of published laws, implementing agencies, and an independent judiciary. Despite the 1993 parliamentary elections and the election of regional and local councils in September and October, 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 routinely 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 and abuse by the police in the interrogation of criminal suspects in 1994. 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 sugar industry, 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 human rights situation in 1994. The Government restricted freedom of assembly, continued prohibitions on political activity and parties, moved to curtail the one independent newspaper, and detained or arrested members of political groupings, including seven members of the newly formed Swaziland Communist Party. 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, led to some overcrowding in detention facilities. Legal and cultural discrimination and violence against women remained a serious problem.
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 such killings.
There were no reports of disappearance.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
There were no reports of the use of torture, but police brutality continued to be a major problem. Criminal suspects routinely complained that police beat them in the course of interrogations. The Government failed to prosecute or otherwise discipline police officers for such abuses. Courts do, however, routinely throw out confessions induced through such physical abuse. On one occasion, the Government charged a police officer with the rape of a criminal suspect; at year's end, the case was ongoing. The Government continued to refuse to release the report of an official inquiry into the 1990 "Black Wednesday" incident when police and army units beat University of Swaziland student protestors. Student commemoration of this event in November led to accusations of property damage and harassment of nonparticipants, and the early closure of the University. 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. The use of the new nonbail provision led to some overcrowding in government remand centers, where suspects are held during pretrial detention (see Section 1.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 by expanding the crimes appearing in the Nonbailable Offenses Order, effective August 24, 1993. The Order originally listed nine offenses ranging from murder to inciting to riot for which a defendant cannot be granted bail. In 1994 the Minister of Justice, who may amend the list by his own executive act, added a tenth offense, car theft, to the nonbailable list, after a rash of armed highjackings in urban areas. In June Parliament broadened the standard for the nonbailable act to apply from "involvement" in the offense to a mere "charge" of the underlying offense. In September police harassed and temporarily detained three members of a banned political organization, the People's United Democracy Movement (PUDEMO), when the members were discovered distributing pamphlets advocating a boycott of local elections. 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 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. On October 16, the Government arrested seven members of the newly formed Swaziland Communist Party who were picketing a workshop of a local democracy organization. The authorities charged them under the 1938 Sedition Act, a broadly written law, with committing subversive acts and being in possession of seditious materials. The trial marked the first use of this Act in approximately 2 years. The court acquitted the seven of the sedition charges after a 2-week trial in November. It also acquitted six of the seven of the minor charge of staging a public demonstration without a permit and gave the seventh, the party leader and founder, a suspended sentence on that charge. The Government arrested the party leader and one other for demonstrations without a permit the following week, releasing them on bail 3 days later. These two faced the possible imposition of a 2-month suspended sentence for a 1993 conviction on the same charge. The case against the two continued at year's end. In 1993 credible reports of the existence of a "secret committee" led magistrates, concerned about possible inroads on their judicial independence, to a brief strike. This "secret committee," which was allegedly formed to usurp the functions of the Judicial Service Commission (JSC) and to discipline wayward magistrates, reportedly disbanded in the wake of the strike and criticism from members of the legal profession. Tighter 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 1994. The Government held no known political prisoners in 1994.
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. Opponents of the Government complained of unlawful police searches and seizures but did not seek judicial relief in 1994. 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 new Parliament. The media, both government-controlled and private, practice self-censorship in regard to the immediate royal family and national security policy. Despite these restrictions, there was an overall trend toward greater openness, and the two daily newspapers--one official, one private--treated a range of sensitive topics. However, the Government moved against its most outspoken critic, the expatriate owner and publisher of the sole independent newspaper, through nonrenewal of his business permit. While at year's end the publisher's case rested under appeal with the Ministry of Home Affairs, the paper continued its critical coverage. 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 regio. 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 led to accusations that student activists had damaged property, harassed nonparticipants, and engaged in angry confrontations with university administrators, the university senate voted to close the university indefinitely. The university established an informal inquiry panel to interview students and pass judgment on their fitness to attend class.
b. Freedom of Peaceful Assembly and Association
King Sobhuza's 1973 decree prohibits political parties and meetings of a political nature and 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 Swaziland Youth Congress (SWAYOCO). However, the threat of police intervention is pervasive, and on at least four occasions police harassed groups taking part in political activities, such as peaceful demonstrations and distribution of political flyers (see Section 1.e.). These incidents include the December arrest of 48 PUDEMO members for taking part in a protest march. Several traditional forums exist for the expression of opinion, including community meetings, national councils, and direct dialog 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 Swaziland. 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 November 1992 removed many 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. The Government treats about 7,000 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. Largely under UNHCR auspices, more than 35,000 Mozambican refugees had returned home by year's end, and the UNHCR officially registered only several hundred refugees in Swaziland.
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, especially the archaic system of indirect representation. Women have full legal rights to participate in the political process. In the new Parliament, there are two women elected to the House, and four women elected--and two appointed--to the Senate. There are no women in the Cabinet. Three women serve as principal secretaries, the 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 and in April invited the most prominent group, the Human Rights Association of Swaziland (HUMARAS), to attend a government policy seminar. In 1994 HUMARAS continued to speak out on human rights issues and served as a mediator in land and labor disputes. HUMARAS criticized the Government on several occasions, including the Government's decision to close the university following the "Black Wednesday" student protests and the arrest and trial of the seven Communist Party members in November (see Section 1.e.). There were no visits by international human rights organizations.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution remains suspended. However, the Employment Act of 1980 forbids employers to discriminate on the basis of race, religion, sex, or political affiliation.
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 women 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. They view children born out of wedlock 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. A Swazi woman may not 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. Violence against women, particularly wife beating, is common, 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 or a fine, or both. The Swazi 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 to provide forums to discuss spousal and child abuse and to educate the public on the rights of abuse victims.
The Government is concerned with the rights and welfare of children, and a number of laws directly address children's issues. Child abuse is a serious problem in Swaziland. A government task force continued to educate the public on children's issues.
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 handicapped 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 union 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 in 1994, usually over wages and benefits. In February the SFTU called a general strike in regard to 27 demands presented to the Government. 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 strike ended after 1 day when the Government agreed to establish a task force to investigate the 27 demands. Since the February strike, occasional discussions between senior union and government officials ensued, and the task force completed its report. Another general strike threat for November 1 resulted in intensive negotiations between government, labor, and employers. Labor suspended the strike call when negotiators reached basic agreement on 16 of the 27 demands. As of year's end, none of the agreed-upon demands had yet been formally approved by Parliament or published by the Government, ad the SFTU established a new deadline for the first week of February 1995. 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 of 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. An ILO representative withdrew an earlier ILO accusation that forced labor took place in Swaziland.
d. Minimum Age for Employment of Children
The Employment Act of 1980 prohibits the hiring of a child below the age of 15 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 $70 (250 Emalangeni), and for a skilled worker $120 (430 Emalangeni). There is a labor/management/government-negotiated 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 1 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.