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dunilefra · 2 years

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Facts of Eswatini's Constitution

Preamble (Part of it)

Whereas We the People of the Kingdom of Swaziland do hereby undertake in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation;

CHAPTER II. MONARCHY

4. King and iNgwenyama

1. Without prejudice to the provisions of section 228, King and iNgwenyama of Swaziland is an hereditary Head of State and shall have such official name as shall be designated on the occasion of his accession to the Throne.

2. The King and iNgwenyama is a symbol of unity and the eternity of the Swazi nation.

3. The King and iNgwenyama is the-

a. Commander-in-Chief of the Defence Force;

b. Commissioner-in-Chief of the Police Service; and

c. Commissioner-in-Chief of the Correctional Services.

4. The King and iNgwenyama has such rights, prerogatives and obligations as are conferred on him by this Constitution or any other law, including Swazi law and custom, and shall exercise those rights, prerogatives and obligations in terms and in the spirit of this Constitution.

5. Succession to the Throne

1. Succession to the office of King and iNgwenyama is hereditary and governed by this Constitution and Swazi law and custom.

2. Where the office of King and iNgwenyama becomes vacant the successor to the Throne shall be determined and declared in accordance with Swazi law and custom.

6. Umntfwana (Crown Prince)

1. Until he accedes to the Throne, a person declared a successor under section 5, shall be designated as Umntfwana.

2. Unless the situation otherwise requires, Umntfwana shall accede to the Throne when he has attained the age of eighteen years.

3. Umntfwana, before being declared king shall be installed iNgwenyama in accordance with Swazi law and custom.

4. Umntfwana shall not assume any of the duties of the office of King and iNgwenyama until he accedes to the Throne.

5. The Crown Prince shall be entitled to such training, allowance and other privileges as may be prescribed appropriate to his status.

7. The Ndlovukazi

1. Without prejudice to the provisions of section 229, the Ndlovukazi is traditionally the mother of the King and iNgwenyama and is appointed in accordance with Swazi law and custom.

2. Until the King and iNgwenyama has been installed, that is to say, until he has publicly assumed the functions and responsibilities of the King and iNgwenyama in accordance with this Constitution and Swazi law and custom, or during any period when he is by reason of absence from Swaziland or any other cause unable to perform the functions of his office, those functions shall be performed, save as otherwise provided in this Constitution, by the Ndlovukazi acting as Queen Regent.

3. In her capacity as Queen Regent, the Ndlovukazi shall be assisted and advised by the Umntfwanenkhosi Lomkhulu -in-Libandla.

4. The Queen Regent shall be entitled to such remuneration as may be prescribed and that remuneration shall be paid out of the Consolidated Fund and shall not be reduced during the continuance in office of the Queen Regent.

5. Civil proceedings shall not be instituted or continued in respect of which relief is claimed against the Queen Regent for anything done or omitted to be done by the Queen Regent in her private capacity and shall not be summoned to appear as a witness in any civil or criminal proceedings.

6. Where provision is made by law limiting the time within which proceedings of any description may be brought against a person, the period during which that person held a position of Queen Regent shall not be taken into account in calculating the period of time prescribed by that law which determines whether any such proceedings as are mentioned in this section may be brought against that person.

7. The Queen Regent shall be immune from taxation in respect of –

a. any remuneration received in terms of subsection (4);

b. all income accruing to her in her private capacity; and

c. all property owned by her in her private capacity and so far as the taxation relates to the period of regency.

8. The Ndlovukazi shall, before commencing to act as Queen Regent take and subscribe an oath for the due execution of office in accordance with Swazi law and custom.

9. The Queen Regent shall hand over her office to the Ndlovukazi when Umntfwana assumes the office of King and iNgwenyama.

8. Umntfwanenkhosi Lomkhulu (Senior Prince)

1. Without prejudice to the provisions of section 234, Umntfwanenkhosi Lomkhulu is appointed in accordance with Swazi law and custom.

2. Where the Ndlovukazi in her capacity as Queen Regent is temporarily out of the Kingdom or for any reason temporarily unable to perform the functions of her office, subject to any requirements under Swazi law and custom, the Umntfwanenkhosi Lomkhulu may perform those functions subject to any specific instructions she may make.

3. Umntfwanenkhosi Lomkhulu when acting in terms of subsection (2) shall be entitled to such remuneration as may be prescribed and that remuneration shall be paid out of the Consolidated Fund and shall not be reduced during his continuance in office.

4. Civil proceedings shall not be instituted or continued in respect of which relief is claimed against the Umntfwanenkhosi Lomkhulu when acting in terms of subsection (2) for anything done or omitted to be done by him in his private capacity and he shall not be summoned to appear as a witness in any civil or criminal proceedings.

5. Where provision is made by law limiting the time within which proceedings of any description may be brought against a person, the period during which that person held a position of Umntfwanenkhosi Lomkhulu in terms of subsection (2) shall not be taken into account in calculating the period of time prescribed by that law which determines whether such proceedings as are mentioned in this section may be brought against that person.

6. The Umntfwanenkhosi Lomkhulu when acting in terms of subsection (2) shall be immune from taxation in respect of -

a. any remuneration received in terms of subsection (3);

b. all income accruing to him in his private capacity; and

c. all property owned by him in his private capacity in so far as the taxation relate to the period of regency.

7. Umntfwanenkhosi Lomkhulu shall, before commencing to act in terms of subsection (2) take and subscribe an oath for the due execution of the office in accordance with Swazi law and custom.

9. Civil List of King and iNgwenyama

1. The King and iNgwenyama shall be paid such emoluments and shall have such Civil List as may be prescribed.

2. Any remuneration prescribed under this section shall be a charge on and paid out of the Consolidated Fund and shall not be reduced during the continuance in office of King and iNgwenyama.

10. Immunity of King and iNgwenyama

The King and iNgwenyama shall be immune from taxation in respect of his Civil List, all income accruing to him and all property owned by him in any private capacity.

11. Protection of King and iNgwenyama in respect of legal proceedings

The King and iNgwenyama shall be immune from –

a. suit or legal process in any cause in respect of all things done or omitted to be done by him; and

b. being summoned to appear as a witness in any civil or criminal proceeding.

15. Protection of right to life

5. Abortion is unlawful but may be allowed –

b. where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a mentally retarded female; or

64. Executive authority of Swaziland

1. The executive authority of Swaziland vests in the King as Head of State and shall be exercised in accordance with the provisions of this Constitution.

2. The King shall protect and defend this Constitution and all laws made under or continued in force by this Constitution.

3. Subject to the provisions of this Constitution, the King may exercise the executive authority either directly or through the Cabinet or a Minister.

4. The King in his capacity as Head of State has authority, in accordance with this Constitution or any other law, among other things to -

a. assent to and sign bills;

b. summon and dissolve Parliament;

c. receive foreign envoys and appoint diplomats;

d. issue pardons, reprieves or commute sentences;

e. declare a state of emergency;

f. confer honours;

g. establish any commission or vusela; and

h. order a referendum.

65. Exercise of King’s functions

1. In the exercise of the functions under this Constitution or any other law the King shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except where -

a. any function under this Constitution is expressed (in whatever terms) to be exercisable by him acting in his discretion or on the advice or the recommendation of or after consultation with any other person or authority;

c. any function conferred by any other law is expressed (in whatever terms) to be exercisable by him in his discretion; and

d. the provisions of section 158(5), 159(5), 175(4) or paragraph 1(1) of the First Schedule apply.

2. Where, in terms of subsection (1), the Cabinet or a Minister gives advice to the King, the King may refer back that advice for further consideration by the Cabinet, and Cabinet shall meet within ten days to reconsider the advice as required by the King.

3. Where the King is required to exercise any function on the advice or recommendation of any person or authority, he shall exercise that function on that advice or recommendation, save that the King may before acting on the advice or recommendation, in his discretion, once refer back that advice or recommendation in whole or in part for reconsideration within ten days by the person or authority concerned.

4. Where the King is required by this Constitution to exercise any function after consultation with any person or authority, the King may or may not exercise that function following that consultation.

87. Election by secret ballot

1. The election of persons to any chamber of Parliament or Bucopho shall be by secret ballot at both primary and secondary levels or any other level in accordance with the first-past-the-post system in which the person receiving the highest number of votes is elected.

2. For the purposes of subsection (1), the votes shall be cast in ballot boxes of a design calculated to ensure efficiency and reliability.

3. Notwithstanding the principle of secrecy, a voter who is handicapped may be assisted in casting the vote.

4. All nominations for Bucopho, or member of Parliament shall be open and supported by at least ten persons qualified to vote in that inkhundla.

5. At the primary level, there shall be no canvassing for votes as persons are nominated (that is, invited to serve) on the basis of their being known to that community.

6. For purposes of this section, nomination or election at “primary” or “secondary” level means nomination or election of the elected member of Parliament or Bucopho as the case may be at the level of chiefdom or polling division or inkhundla respectively.

106. Power to make laws

Subject to the provisions of this Constitution .

a. the supreme legislative authority of Swaziland vests in the King-in- Parliament;

b. the King and Parliament may make laws for the peace, order and good government of Swaziland.

107. Exercise of power to make laws

Subject to the provisions of this Constitution, the power of the King and Parliament to make laws shall be exercised by bills -

a. passed by both chambers of Parliament;

b. passed by the House in the cases referred to in sections 112, 113, 114 and 116 (2);

c. passed at a joint sitting of the Senate and the House, in the cases referred to in sections 115(3), 116 (1) 117, and Chapter XVII;

d. passed by the Senate in the case referred to in section 115 (4), and assented to by the King under his hand.

108. Assent to bills

1. A bill shall not become law unless the King has assented to it and signed it in token of that assent.

2. Subject to the provisions of sections 117 and 246, a bill shall be presented to the King for assent where, and shall not be so presented unless, that bill has been passed by .

a. both Houses of Parliament without any amendments or with such amendments only as are agreed to by both Houses;

b. the House in terms of sections 112, 113, 114 and 116 (2);

c. the Senate in terms of section 115 (4);

d. a joint sitting of the Senate and the House in terms of sections 115 (3), 117 (1), 118 and Chapter XVII.

3. Where a bill that has been duly passed is presented to the King for assent the King shall signify that he assents or withholds assent .

a. in the case of an appropriation bill, or bill for a law to amend this Constitution, within ten days;

b. in the case of any other bill, within twenty-one days.

221. Duties of a local government authority

1. The primary duty of a local government authority is to ensure, in accordance with the law, the efficient management and development of the area under its jurisdiction in consultation with local traditional authority where applicable.

CHAPTER XIV. TRADITIONAL INSTITUTIONS

227. Traditional institutions

1. The Swazi traditional government is administered according to Swazi law and custom and the traditional institutions that are pillars of the monarchy as set out in subsection (2).

2. The following Swazi traditional institutions are hereby guaranteed and protected -

a. iNgwenyama;

b. iNdlovukazi;

c. Ligunqa (Princes of the Realm);

d. Liqoqo

e. Sibaya;

f. (Tikhulu) Chiefs;

g. Umntfwanenkhosi Lomkhulu (Senior Prince);

h. Tindvuna (Royal Governors).

228. INgwenyama

1. INgwenyama is the traditional head of the Swazi State and is chosen by virtue of the rank and character of his mother in accordance with Swazi law and custom.

2. INgwenyama enjoys the same legal protection and immunity from legal suit or process as the King.

3. Subject to an elaborate system of advisory councils, the functions of iNgwenyama under this chapter shall be regulated by Swazi law and custom.

229. The Ndlovukazi

1. The Ndlovukazi (Queen Mother) is traditionally the mother of the iNgwenyama and the symbolic Grandmother of the Nation.

2. The Ndlovukazi is selected and appointed in accordance with Swazi law and custom.

3. The official residence of the Ndlovukazi is the legislative and ceremonial capital of the nation and the arena of the Incwala and Umhlanga.

4. The Ndlovukazi has such powers and performs such functions as Swazi law and custom assigns to her.

5. Without derogating from the generality of subsection (4) the Ndlovukazi exercises a moderating advisory role on iNgwenyama.

6. The Ndlovukazi shall be immune from-

a. suit and legal process in any civil case in respect of all things done or omitted to be done by her in her private capacity; and

b. being summoned to appear as a witness in any civil or criminal proceedings.

7. The Ndlovukazi shall be immune from taxation in respect of emoluments or any income accruing to her in her private capacity and all property owned by her in her private capacity.

230. Ligunqa

1. The Ligunqa (Bantfwabenkhosi) are princes of the realm, the paternal uncles and half-brothers of iNgwenyama who exercise functions of a sikhulu (chief) over some area and whose mothers were given liphakelo (authority to oversee and exercise jurisdiction over an area accorded by iNgwenyama in accordance with Swazi law and custom).

2. Ligunqa ranks above liqoqo and is convened by iNgwenyama or the Ndlovukazi as Queen Regent.

3. The membership of ligunqa includes the indvuna referred to in Section 235(2) and some members of Emabekankhosi (king-makers) determined in accordance with Swazi law and custom.

4. INgwenyama, from time to time, consults all or some of the members of ligunqa on important or sensitive matters or disputes including matters of succession connected with the monarchy.

5. Ligunqa will also advise iNgwenyama, the Ndlovukazi as Queen Regent where that advice is necessary in the national interest to ensure the stability and continuity of the monarchy.

231. Liqoqo

1. The Liqoqo is an advisory council whose members are appointed by iNgwenyama from the membership of bantfwabenkhosi (emalangeni), tikhulu (chiefs) and persons who have distinguished themselves in the service of the Nation.

2. Where necessary the members of liqoqo may be appointed by the Ndlovukazi as Queen Regent.

3. Liqoqo traditionally advises iNgwenyama on disputes in connection with the selection of tikhulu (chiefs) boundaries of chiefdoms and any other matter iNgwenyama may assign for their advice in confidence.

4. A judicial officer, member of Parliament or of a service commission shall not at the same time qualify to be a member of liqoqo.

5. A member of liqoqo shall hold office for a period not exceeding five years and shall be eligible for re-appointment and shall vacate office where the member -

a. dies;

b. resigns; or

c. is removed from office by iNgwenyama or Indlovukazi as Queen Regent.

6. A member of liqoqo shall, before assuming office, take and subscribe the oath of allegiance and due execution of office set out in the Second Schedule.

7. Liqoqo is convened and traditionally presided over by iNgwenyama who may assign this responsibility to any person designated by him for that purpose.

232. Sibaya (the Swazi National Council)

1. The people through Sibaya constitute the highest policy and advisory council (Libandla) of the nation.

2. The Sibaya is the Swazi National Council constituted by Bantfwabenkhosi, the tikhulu of the realm and all adult citizens gathered at the official residence of the Ndlovukazi under the chairmanship of iNgwenyama who may delegate this function to any official.

3. Sibaya functions as the annual general meeting of the nation but may be convened at anytime to present the views of the nation on pressing and controversial national issues.

233. Tikhulu (Chiefs)

1. Chiefs are the footstool of iNgwenyama and iNgwenyama rules through the Chiefs.

2. The iNgwenyama may appoint any person to be chief over any area.

3. The general rule is that every umphakatsi (Chief’s residence) is headed by a Chief who is appointed by iNgwenyama after the Chief has been selected by the lusendvo (family council) and shall vacate office in like manner.

4. The position of a Chief as a local head of one or more areas is usually hereditary and is regulated by Swazi law and custom.

5. Unless the situation otherwise requires, a chief shall assume office at the age of eighteen years or so soon thereafter as the period of mourning comes to an end.

6. A Chief, as a symbol of unity and a father of the community, does not take part in partisan politics.

7. A Chief may be appointed to any public office for which the Chief may be otherwise qualified.

8. The powers and functions of chiefs are in accordance with Swazi law and custom or conferred by Parliament or iNgwenyama from time to time.

9. In the exercise of the functions and duties of his office a Chief enforces a custom, tradition, practice or usage which is just and not discriminatory.

234. Umntfwanenkhosi Lomkhulu (Senior Prince)

Umntfwanenkhosi Lomkhulu is a paternal uncle of the King selected and appointed in accordance with Swazi law and custom.

235. Tindvuna

1. Traditionally Swaziland has a number of tindvuna or governors in charge of the regiments and the royal villages.

2. The Indvuna of the Ndlovukazi’s residence is the first-amongst-equals or governor-general.

3. The position of an indvuna is not strictly hereditary even though appointment is made within a limited range of leading commoner families.

4. Tindvuna assist in the traditional government of the country by carrying out certain decisions and advising iNgwenyama or Ndlovukazi in various other respects.

5. Tindvuna hear cases, give judgments and advise on the temper of the nation, organise labour for the royal fields and ensure that the royal kraals and villages are periodically repaired.

6. Tindvuna also facilitate access to iNgwenyama or Ndlovukazi to those seeking royal audience.

7. The Tindvuna of the royal residences will normally have a small council to consult before taking a decision.

251. Council of Chiefs

1. There shall be a Council of Chiefs which shall be composed of twelve Chiefs drawn from the four regions of the Kingdom appointed by the iNgwenyama on a rotational basis.

2. There shall be a Chairman of the Council who shall be appointed by the iNgwenyama and a secretary whose office shall be a public office.

3. The Council of Chiefs shall be responsible for, among other things-

a. advising the King on customary issues and any matter relating to or affecting chieftaincy including chieftaincy disputes;

b. performing the function in terms of section 115; and

c. performing such other functions as may be assigned by this Constitution or any other law.

4. Members of the Council of Chiefs shall be divided into three classes of four each and the first class shall vacate office at the expiry of two years, the second class shall vacate office at the expiry of three years and the third class shall vacate office at the expiry of four years.

5. Chiefs in the respective regions may meet as and when necessary but at least twice a year.