{"id":6836,"date":"2018-08-28T08:17:10","date_gmt":"2018-08-28T08:17:10","guid":{"rendered":"https:\/\/amabhungane.org\/amabhungane\/?post_type=stories&p=6836"},"modified":"2024-09-21T18:23:41","modified_gmt":"2024-09-21T18:23:41","slug":"swazilands-name-change-challenged-in-court","status":"publish","type":"post","link":"https:\/\/further.co.za\/amabwp\/swazilands-name-change-challenged-in-court\/","title":{"rendered":"Swaziland\u2019s name change challenged in court"},"content":{"rendered":"

In a crucial test of the powers of King Mswati III, the Swazi High Court has been asked to strike down the king\u2019s unilateral change of Swaziland\u2019s name to eSwatini earlier this year.<\/p>\n

Human rights lawyer Thulani Maseko and the Institute of Democracy and Leadership (Ideal), of which he is director, want the court to set aside Legal Notice No. 80 of 2018, which confirmed the name change announced by Mswati at his birthday celebrations in April. They are also seeking an order nullifying all decisions taken by government in terms of the disputed legal notice.<\/p>\n

They argue that the king acted unconstitutionally by failing to take the name change through legislative processes.<\/p>\n

The Swazi constitution of 2005 bars rule by decree, stipulating that the king can only make laws in conjunction with Parliament.<\/p>\n

The matter will be heard by a full bench of the High Court.<\/p>\n

Maseko is one of Swaziland\u2019s most vocal upholders of the rule of law. He and prominent journalist Bheki Makubu were jailed by controversial former Chief Justice Michael Ramodibedi in 2015 for criticising the Swazi judiciary.<\/p>\n

Maseko\u2019s application calls on the High Court to rule on the king\u2019s powers, which has been largely a no-go area.<\/p>\n

The lawyer treads further on forbidden ground by arguing that the abrogation of the independence constitution by King Sobhuza, Mswati\u2019s father, in 1973, was similarly unlawful.<\/p>\n

The most serious legal challenge to the monarch since independence was in 2000, when the Court of Appeal \u2013 now the Supreme Court \u2013 declared the Non-Bailable Offences Order of 1993 unconstitutional.<\/p>\n

The order, which excluded bail for certain crimes, was promptly reissued by the executive, which complained that the judgement undermined the king\u2019s powers. In November 2002 all the Appeal Court judges resigned in protest.<\/p>\n

The last time a full bench of the High Court presided over a case relating to the powers of the king was in 2014, when the Law Society of Swaziland challenged Mswati\u2019s appointment of a judge.<\/p>\n

In a controversial ruling, the court found that the king\u2019s decision was final, as he is \u201cumlomo longa cali manga\u201d (the mouth that tells no lies).<\/p>\n

At that time the judiciary was under the leadership of Ramodibedi, a non-Swazi who later left the country under a corruption cloud.<\/p>\n

Swaziland, eSwatini or kaNgwane?<\/h5>\n

In his application, Maseko contends that the name change cannot be effected without a legislative process that would include the participation and involvement of the public.<\/p>\n

\u201cCitizen participation in a decision of such significance is at the very heart of democracy and democratic governance as guaranteed in section 1 of the Constitution,\u201d he says. \u201cWhat is more \u2026 the name eSwatini does not seem to be the original name of the country\u2026kaNgwane is.\u201d<\/p>\n

Maseko points out that the siSwati version of the constitution frequently refers to the Kingdom of Swaziland as \u201cumbuso waka-Ngwane\u201d.<\/p>\n

He adds that the decision to change the country\u2019s name should have been preceded by a general meeting of the nation at the royal residence, known as sibaya (the cattle kraal). \u201cThe people are the highest decision-making body,\u201d he said.<\/p>\n

Maseko argues that the constitution makes no provision for the king to unilaterally rename the country. \u201cIt thus amounts to a constitutional change and amendment of the constitution, without having followed the prescripts of the constitution \u2026 The notice speaks for itself \u2026 parliament was not involved, let alone the people through a referendum, as required by section 246 (3) of the constitution.\u201d<\/p>\n

Maseko then broadens his attack to include King Sobhuza\u2019s scrapping of the independence constitution in 1973. This, too, was a violation in that the constitution \u201c\u2026 made no provision for its abrogation by proclamation\u201d.<\/p>\n

\u201cWe \u2026 verily believe that the repeal of the 1968 independence constitution was unlawful and unconstitutional. Similarly, the attempt to change the name of the country by declaration finds no support from the 2005 constitution \u2026 inasmuch as His Majesty King Sobhuza II had no power to abrogate the independence constitution by proclamation.\u201d<\/p>\n

Maseko adds that the name change has \u201cconstitutional implications \u2026 as the name is entrenched in section 1 and is mentioned at least 200 times in other provisions of the constitution\u201d.<\/p>\n

What\u2019s in a name?<\/h5>\n

During the celebration to mark his 50th birthday and 50 years of Swaziland\u2019s independence \u2013 with the latter playing second fiddle \u2013 Mswati announced that Swaziland would henceforth be known as eSwatini. Mswati\u2019s official speeches over many years have borne out his preference for the name eSwatini.<\/p>\n

The announcement was received by the crowd at Mavuso Trade Centre with jubilation.<\/p>\n

In a prelude to the change of name announcement, King Mswati stressed the importance of providing forums where the populace can voice divergent views, including sibaya. King Mswati claimed that \u201cthe monarch rules by consensus and it is through the national consultations that have guided our development policies, legislation and social cohesion. This is our monarchical democracy.\u201d<\/p>\n

He went on to to say that the name \u201cSwaziland\u201d was inherited from the British, and that \u201cif we are to give true meaning to our independence, time has come to give our country a name of its people\u201d.<\/p>\n

Other countries in the region had \u201clocalised their names soon after independence\u201d, he said. \u201cI have the pleasure to present to you, on this historic day, a new name for the kingdom. Our country will be now be called \u2018Kingdom of eSwatini\u2019.<\/p>\n

According to the legal notice, the king made the change by exercising powers conferred on him by section 64(3) of the 2005 constitution. The section states that \u201csubject to the provisions of this Constitution, the king may exercise the executive authority either directly or through the cabinet or a minister\u201d.<\/p>\n

Maseko told\u00a0The Nation\u00a0<\/em>that he was not opposed to the name-change as such, but that \u201cit is the manner in which it was done that is of concern. It is surely reminiscent of the 1973 Proclamation.\u201d<\/p>\n

\u201cUnder the current constitution, only the people assembled at sibaya, as the highest policy-making body, has the power to trigger the name change. Only then would a legislative process be started.\u201d<\/p>\n

The Chief Justice, Bheki Maphalala, and the Commissioner of Police, Isaac Magagula, were among the first to announce a corresponding change of name for their institutions.<\/p>\n

The debate over Swaziland\u2019s name first surfaced in the 1960s, when the Ngwane National Liberatory Congress \u2013 then the official opposition \u2013 wanted the country to be known as ka-Ngwane. Ironically, this was opposed by the king\u2019s party, the Imbokodvo National Movement, on grounds that \u201cSwaziland\u201d was more fitting.<\/p>\n

In April 1967, then executive council member for education, Polycarp Dlamini, told the media that the \u201cmovement had no intention to change the name of Swaziland. We think Swaziland is appropriate. We are Swazis and this is our land.\u201d<\/p>\n