United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1993 - Swaziland, 30 January 1994, available at: http://www.refworld.org/docid/3ae6aa5034.html [accessed 3 July 2015]
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. Advised by traditional figures and Cabinet ministers, the King rules according to unwritten Swazi law and custom and through a modern structure of published laws and decrees, implementing agencies, and an independent judiciary. The King appoints the Cabinet from among members of Parliament. Direct elections for the House of Assembly (the lower house of Parliament) were held in October under new procedures recommended by a special commission following extensive public hearings throughout the country. Civilian authorities control both the Umbutfo Swaziland Defense Force and the Royal Swaziland Police. On approximately 50 occasions during the year, criminal suspects made credible accusations that police had used excessive force to obtain evidence or a confession. Swaziland has a free market economy, with relatively little government intervention. The majority of Swazis are engaged in subsistence agriculture, though a relatively diversified industrial sector accounts for the largest component of the formal economy. The economy relies heavily on the export sector, composed primarily of large firms with predominantly foreign ownership. Significant progress toward reform included the holding of parliamentary elections and the announcement of the Government's intention formally to repeal the 60-day detention decree that permitted detentions without charges (the decree was not used in 1993). While no international observers were invited, the procedures for nominations and elections for Swaziland's first elected parliament in 20 years were generally considered to be open, fair, and free of unwarranted influence. The registration and voter education procedures, although imperfect, were reasonably successful. However, restrictions on political activity and the ban on political parties remained in force. Legal and cultural discrimination and physical violence against women continued.
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 allegations of such killings.
There were no reports of disappearance.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Approximately 50 persons alleged that they were abused or tortured while in police custody in 1993. In most of these cases, the police mistreated arrestees in attempts to force confessions or obtain evidence in criminal cases. The report on the 1990 beating by members of the Swazi military of a group of University of Swaziland students was completed but by year's end had not been made public. No criminal charges were brought against the perpetrators. Convicted youth offenders can be sentenced to whipping by cane. In 1993 this sentence was imposed less frequently than in the recent past.
d. Arbitrary Arrest, Detention, or Exile
Swazi 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. Those arrested are allowed to consult with a lawyer of their choice and are to 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. Provision for bail exists except for persons charged with crimes appearing in the Non-Bailable Offenses Order of 1993. The Order, which became effective on August 24, identifies nine offenses ranging from murder to inciting to riot for which a defendant cannot be granted bail. Proponents of the legislation believe it will improve the administration of justice by guaranteeing that a defendant appears for hearings and trial and that the law also protects the defendant from vigilante groups who oppose bail. Opponents of the legislation believe the order denies due process to defendants and encroaches on the discretion and independence of the courts. The Government on September 27 announced its intention to repeal the 1973 decree permitting the detention of any person without charge or trial for renewable periods of 60 days. The 60-day detention decree was not used in 1993. Exile was not used as a means of political control during the year.
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 Swazi 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. This power was last used in 1987. The modern judiciary consists of the Court of Appeals, (composed entirely of South African judges), the High Court, and magistrates' courts, which are independent of executive and military control and free from intimidation by outside forces. The High Court has general jurisdiction over relatively serious civil and criminal cases. The magistrates' courts have jurisdiction over criminal cases punishable by not more than 2 years' imprisonment or a fine of not more than $130. 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. Some members of the regular judiciary are appointed from the bars of other countries with compatible legal systems. In traditional courts, to which ethnic Swazis may be brought for relatively minor offenses and violations of traditional Swazi law and custom, formal legal counsel is not allowed. Defendants may speak on their own behalf and may be assisted by informal advisors. Sentences are subject to review and to appeal to the High Court and the Court of Appeals. Accused persons are guaranteed the right to have their cases transferred from the traditional courts. 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. Inadequate staffing of the High Court led to delays in the processing of some cases in 1993. A short work stoppage by the magistrates, who were unhappy with the appointment of a special judicial commission, exacerbated judicial delays and backlogs and contributed to public discontent with the judicial system.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law generally requires a warrant from a magistrate before police may search homes or other premises. 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. The evidence obtained from searches conducted without warrants has been successfully challenged in court. No evidence has been produced that the Government systematically monitors private correspondence or conversations. Opponents of the Government who complain of unlawful searches and seizures have not sought judicial relief from these activities.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
There was some easing of restraints on freedom of speech, especially in political matters, in 1993 but significant restrictions remained. In dealing with the sensitive issues of the immediate royal family and national security policy, the media, both government-controlled and private, tend to practice self-censorship. Reflecting the easing of some restraints, the two daily newspapers and the government-controlled television station continued to expand the range of sensitive topics, such as the parliamentary elections, that they were willing to address and to develop their role as forums for the expression of popular opinion. Swaziland's only privately owned paper also became a more energetic advocate of governmental accountability and democracy, challenging the Government when it believed the Government had not lived up to appropriate standards. The government-owned radio station exhibited less freedom than did the other media. Private companies and church groups publish several newsletters and magazines. One church group owns and operates a radio station that broadcasts throughout the region. Although no formal constraints on academic freedom exist, the prohibition on political gatherings, the historical intolerance of dissent, and concern over possible reprisals have created an environment in which self-censorship is the norm.
b. Freedom of Peaceful Assembly and Association
The law does not protect this freedom. Swazis have several traditional forums through which they can express discontent, including direct dialog with their chiefs, community meetings, and national councils, in which all Swazis are permitted to participate. Many Swazis, however, view these forums as ineffective means for expressing their political views. King Sobhuza's 1973 decree prohibits political parties and meetings of a political nature and demonstrations in any public place without the consent of the Commissioner of Police. Permission to hold meetings was not generally granted in 1993, but political organizations often met without the required permission, with no legal consequences. On several occasions the authorities permitted leaders of the illegal political parties, including the People's United Democratic Movement (PUDEMO) and the Swaziland National Front (SWANAFRO), to speak out publicly at rallies and meetings, and the activities of these leaders were frequently reported in the mass media. However, in several instances political activists were arrested and charged with political offenses for organizing political meetings without police permission for holding illegal demonstrations. In one incident, 62 PUDEMO supporters were arrested after attempting to attend a rally; the 62 were convicted and given suspended sentences of 3 months in jail on the condition they avoid similar offenses within the next 3 years. They have appealed the convictions and sentences. Following those arrests, few individuals dared to attend political meetings. Except for the ban on political parties, there are no formal legal barriers to freedom of association. Trade associations, professional bodies, academic organizations, and rights advocacy groups exist and maintain relations with recognized international bodies in their fields.
c. Freedom of Religion
Swaziland is hospitable to all religious believers. Organized religions are free to establish places of worship and train clergy, to publish religious texts, and to undertake religious travel outside the country. Proselytizing is legal, and no religious group is banned.
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. A citizenship law passed in November 1992 removed many ambiguities relating to Swazi citizenship and enabled nonethnic Swazis to obtain passports and citizenship documents. Bureaucratic delays, however, plagued individuals seeking these documents during the year. The new law enabled those wishing to register for the elections to do so with little problem. No formal barriers prevent the return of dissidents, although few have chosen to return to Swaziland to resume residence. Some did return for short visits in 1993 and were not subject to harassment by the authorities. Swaziland's treatment of refugees is considered to be good by the United Nations High Commissioner for Refugees (UNHCR), as well as by the various nongovernmental organizations involved in the care of these groups. Most refugees are from Mozambique. Only about 24,000 of these are registered and receiving assistance, while another estimated 35,000 to 40,000 have settled spontaneously along the border regions and in towns. The other significant refugee group is made up of about 7,000 ethnic Swazis from the KwaZulu "homeland" in South Africa. Approximately 160 people from countries such as Zaire, Ethiopia, Angola, and Somalia sought refuge in Swaziland during the first 8 months of 1993. (Arrivals from South Africa have stopped.) Swaziland permits these people to remain in the country until their petitions can be heard by the Political Asylum Committee. This Committee is made up of government and U.N. officials. The UNHCR's opinion about the merits of a person's claim to well-founded fear of persecution or physical danger if repatriated is a major factor in the Committee's decisionmaking process. There are no current disputes between Swazi and UNHCR authorities regarding claims to refugee status. Illegal aliens who cannot establish refugee status are usually deported. In August Swaziland, Mozambique, and the UNHCR signed an agreement governing the voluntary repatriation of Mozambican refugees. While some spontaneous return had already occurred, the controlled, organized repatriation effort began in October. Although local sentiment favors as rapid a return of Mozambican refugees as possible, Swazi officials accept that the repatriation must be voluntary and at a pace that can be managed on the other side of the border.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
In 1993 Swazi citizens exercised the right to change their government through a direct vote for the first time in 20 years, but a ban on political parties and restrictions on political gatherings precluded the holding of truly democratic elections. The Government limited candidates' election campaigning to single, short sessions with groups of voters. Of the 65 members of the House of Assembly, 55 were directly elected by the people in a secret ballot vote; the remaining 10 were appointed by the King. Parliament includes also a Senate with 30 members, 20 of whom are appointed by the King and 10 of whom are elected by the House of Assembly. Despite the ban on political parties, PUDEMO, SWANAFRO, and other parties used public meetings and the media to publicize their views. Although Swazi law calls for the House of Assembly to make law with the King, the previous House of Assembly used this power in only a limited fashion. The King retains ultimate legislative and executive power. After dissolving the House of Assembly in October 1992 in preparation for elections, the King ruled the country "in council" with his Cabinet, soliciting advice from the royal family, senior chiefs, and other interested parties. Legislation was promulgated by the Cabinet and submitted to the Monarch for assent. The King can legislate by decree, as well. The new House of Assembly is due to meet for the first time in early 1994.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
While the Government does not encourage activities by domestic or international human rights organizations, local organizations exist. The most prominent, the Human Rights Association of Swaziland (HUMARAS), spoke out on human rights issues and worked as a mediator in land and labor disputes.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
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. Because traditional marriage is governed by uncodified Swazi 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 and urbanization, as well as the increasing prominence of women leaders in government and civic organizations, are slowly breaking down barriers to equality. Married women now routinely and successfully execute contracts and enter into a variety of transactions in their own names. However, the husband's permission is still generally required for a woman to borrow money, open a bank account, leave the country, or, in some cases, take a job. Divorce is discouraged by families but is no longer uncommon. In traditional marriages, children are considered to belong to the father and to his family if the couple divorces. Children born out of wedlock are considered to belong to the mother. In traditional marriages, a man may take more than one wife. A man who marries a woman under civil law may not have more than one wife, although in practice this restriction is sometimes ignored. 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. Physical abuse of 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. 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. Still, even in the modern courts, sentences frequently amount to no more than several months in jail or a fine, or both. Nongovernmental organizations provide support to groups affected by discrimination or abuse. The Swaziland Council of Churches Legal Aid Center provides free information on issues such as marriage and maintenance laws. The Swaziland Action Group Against Abuse has established 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 Employment Act of 1980 forbids employers to discriminate on the basis of race, religion, sex, or political affiliation and requires equal pay for equal work. However, men's average wage rates by skill category often exceed those of women. Legal protection from sexual harassment is addressed in the Swazi Legal Code, but its provisions are vague and largely ineffective in halting this type of discrimination.
The Government has created a task force to educate the public on the rights of children. A number of Swazi laws deal with the rights and welfare of children, including the Age of Majority Act, the Employment Act, the Child Care Service Order, and the Maintenance Act. A study of legislation concerning children was conducted during 1993 to bring the legislation in conformance with the U.N. Convention on the Rights of the Child. The Association of Child Welfare, a Swazi nongovernmental organization, was very active in 1993 promoting the rights and welfare of children.
People with Disabilities
The Ministry of Home Affairs has called for equal treatment of the disabled, but no legislation prohibits discrimination against them. The Government has not legislated or mandated physical accessibility to public buildings for the handicapped.
Section 6 Worker Rights
a. The Right of Association
The Industrial Relations Act (IRA) of 1980 affirms the right of trade unions to exist, organize, and associate freely. Persons in all sectors of the economy, including the public sector, are permitted to join unions. Unions operate independently of government or political control, provided they act as economic, rather than political, organizations. 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. These include the election of officers by secret ballot, annual meetings open to all members, fees, grounds for suspension of members, and expenditure of union funds. The union constitution must be approved by the Labor Commissioner, who can strike out or amend provisions which violate the law. Unions may not be dissolved as long as they adhere to the regulations of the IRA. Unions that fail to maintain proper registration with the Labor Commissioner may be dissolved without recourse to judicial review, but this authority has never been exercised. 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 ratified by Swaziland in 1978. The concerns of the COE 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, however, does not prohibit Swazi unions from having international affiliations. The COE again in 1993 criticized IRA provisions, including the prohibition on federations from carrying out political activities and the prohibition of the right to strike in the postal, radio, and teaching sectors. In late 1992, the World Confederation of Organizations of the Teaching Profession asked the ILO to intervene with the Swazi authorities in order to obtain the repeal of the IRA provision which classifies teaching as an essential service. 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. Consciousness of workers' rights is growing rapidly. 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. Several strikes occurred during 1993, centered on the issue of pay. Strikes by the University of Swaziland Worker's Union, the Swaziland Commercial and Allied Workers Union, the Swaziland Hotel and Catering Allied Workers Union, and the Swaziland Union of Financial and Allied Workers occurred in 1993 with modest wage and benefit increases being obtained by the unions. Several unions, dissatisfied with the leadership and role of the Swaziland Federation of Trade Unions (SFTU), broke away from the SFTU in 1993 to form the Swaziland Federation of Labor, which has yet to be recognized by the Government.
b. The Right To Organize and Bargain Collectively
The IRA provides for the right to organize and bargain collectively and outlaws antiunion discrimination. Employers are obliged 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. The Court is limited by law with respect to granting relief in the case of unfair dismissal. It may not order reinstatement, and compensation only to the extent of 6 months' salary may be awarded. Members of legally recognized unions must be allowed 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. While collective bargaining occurs, it is not widespread. Government directives on wage levels do not impede collective bargaining. The Industrial Court may refuse to register an agreement if it does not observe government directives on wage levels. The COE has criticized this as a violation of ILO Convention 98. There are no export processing zones.
c. Prohibition of Forced or Compulsory Labor
Forced labor is legally prohibited and 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 in an industrial undertaking, except in cases in which only family members are employed in the firm, or in technical schools in which 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. The Ministry of Labor has enforcement responsibility, 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. Most workers receive a minimum of 14 days' annual leave. The Labor Commissioner enforces standards in the formal sector. The minimum monthly wage for a domestic employee is approximately $50, for an unskilled worker about $60, and for a skilled worker approximately $110. 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. All workers are entitled to 1 day of rest per week under the Employment Act and the Wages Act. Extensive legislation protects worker health and safety, and workers have the legal right to remove themselves from a dangerous work situation without jeopardy to continued employment. The Government sets safety standards for industrial operations and encourages private companies to develop accident prevention programs. Recent growth in industrial production has required more government action on safety issues. Few safety inspections by the Labor Commissioner's office have taken place in the last several years because of staffing deficiencies.