be heard by a bench of two judges. As a result the two applications came before Sapire, CJ and Masuku J who, since the same principles
of law were in issue in both matters, heard them together. Each judge a quo delivered a judgment and although they adopted somewhat different approaches to the problem there was agreement that the applications
be dismissed. It is against that order that these two appeals have now been argued before us and we too have heard the matters together.
In his judgment Masuku, J, with reference to the order sought by appellant Bhembe that the King of Swaziland lacks the power to legislate
by decree and lacked such power when Decree No. 3 was promulgated, set out in careful and extremely helpful detail the material events
in the constitutional history of this Kingdom.
It appears from such history that Swaziland was a British Protectorate until 6 September 1968 when she gained independence from Britain.
At independence there was put in place a Westminster-type constitution which provided for all aspects of Government, civil liberties,
the rights and powers of the Ngwenyama, the role of traditional institutions and stipulated a procedure for amending the constitution.
Five years later, on 12 April 1973 His Majesty, King Sobhuza II issued what was termed the Proclamation to the Nation (“the
King’s Proclamation”).
In that Proclamation the King announced that after giving “great consideration to the extremely serious situation which has
now arisen in our country”, he had come to various conclusions. Included among them was that the 1968 constitution had failed
to provide the machinery for good government and for the maintenance of peace and order, and that it was indeed the cause of unrest,
insecurity and dissatisfaction with the state of affairs in the country. He went on to enlarge upon his criticism of the constitution
and to say that it permitted the importation of political practices which were, inter alia, designed to disrupt and destroy “our own peaceful and constructive and essentially democratic methods of political activity.” There was, announced His Majesty, no constitutional way of effecting the necessary amendments to the constitution which in
any event prescribed a method of amendment which was “wholly impracticable.” Therefore, and because, as he put it, “as a nation we desire to march forward progressively under our own constitution” he declared as follows:-
“…………….in collaboration with my Cabinet Ministers and supported by the whole nation, I have assumed
supreme power in the Kingdom of Swaziland and that all Legislative, Executive and Judicial power is vested in myself and shall, for
the meantime, be exercised in collaboration with a Council constituted by my Cabinet Ministers. I further declare that, to ensure
the continued maintenance of peace, order and good government, my Armed Forces in conjunction with the Swaziland Royal Police have
been posted to all strategic places and have taken charge of all government places and all public services. I further declare that
I, in collaboration with my Cabinet Ministers, hereby decree that:-
A.
The Constitution of the Kingdom of Swaziland which commenced on the 6th September, 1968, is hereby repealed;
B.
All laws with the exception of the Constitution hereby repealed, shall continue to operate with full force and effect and shall be
construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with
this and ensuing decrees.”
I return later in this judgment to consider the nature and effect of the King’s Proclamation and particularly to the constitutionality
or otherwise of Decree No. 3. Suffice it to refer at this stage to the following provisions of the 1968 Constitution. Section 2 provided
as follows:-
“This Constitution is the supreme law of Swaziland and if any other law is inconsistent with this Constitution, that other law
shall, to the extent of the inconsistency, be void.”
Section 134 made provision for the amendment or alteration of the Constitution providing
that such amendment or alteration was to be passed in a joint sitting of the Senate and House of Assembly summoned for the purpose
as laid down in the Schedule to the Constitution. As pointed out by Masuku J, no provision was made for the repeal of the Constitution
as this was never envisaged by the drafters of the Constitution. The learned judge then referred to the only power to make laws which
was conferred on the King and Parliament by the Constitution; this was Section 62(1) which reads:-
“Subject to the provisions of this Constitution, the King and Parliament may make laws for the peace, order and good government
of Swaziland.”
It is abundantly clear that the King, in the new political dispensation which he
decided to introduce in the King’s Proclamation, showed scant regard for the Westminster-type Constitution of 1968. In his
abrogation of it he rode roughshod over some of its fundamental provisions and in doing so usurped power for himself which was not
contemplated when Britain’s Protectorate came to an end. It is noteworthy, however, and this will be more specifically dealt
with later in this judgment, that the King’s Proclamation saved Sec. 104 of the 1968 Constitution which provided that the High
Court of this country had unlimited original jurisdiction in criminal and civil matters.
It is convenient at this stage to deal with the attack levelled at Decree No. 3,
i.e. that it is null and void and of no force or effect in as much as it is inconsistent with Articles 1, 7(b) and (d) of the African
Charter on Human and Peoples’ Rights as ratified by the Government of the Kingdom of Swaziland on 15 September 1995 (“the
Charter”) .
In his Heads of Argument, which are comprehensive and indicate that a good deal of
research preceded their drafting, Mr. N. Maseko, who appeared for the appellant Gwebu, referred us in detail to the provisions of
the Charter. The preamble sets the tone of the Charter and indicates its aims and objectives. It “reaffirms” the African
States’ pledge to “coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international
co-operation, having regard to the Charter of the United Nations and the Universal Declaration of Human Rights.”
This clear dedication to the upholding of human rights and the Member States’ (including, of course, this Kingdom’s) firm
intention to give effect to them is contained in Article 1 of the Charter which reads:-
“The Member States of the Organisation of African Unity parties to the present Charter shall recognise the rights, duties and
freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.”
With that solemn pledge in mind Mr. Maseko referred us to Article 7 of the Charter, and particularly 7(1)(b) and 7(1)(d) which read:-
“1.
Every individual shall have the right to have his cause heard. This comprises
(b)
the right to be presumed innocent until proved guilty by a competent court or tribunal
(d)
The right to be tried within a reasonable time by an impartial court or tribunal.”
It was submitted by Counsel in the court a quo and again before us that the presumption of innocence is violated by the aforementioned Non-bailable Offences Order. In this regard
he referred us to the Proclamation of Decree No. 3 the relevant Section of which reads:-
Laws that have a constitutional bearing
2.(1)
All Orders-in-Council and Acts of Parliament that would otherwise be invalid on the sole ground that they
are inconsistent with the Proclamation to the Nation of 12th April 1973 are hereby validated to that extent, unless repealed or amended by this Decree or any other law.
(2)
Notwithstanding section 104 of the 1968 Constitution (Repealed with savings) and/or any other law, the Non-Bailable Offences Order
No. 14 of 1993 (as amended) is hereby reinstated and/or validated.”
It follows from the provisions of the Non-Bailable Offences Order that once charged with a scheduled offence the accused is committed
to be imprisoned until his case has been heard and the verdict pronounced. This is clearly contrary to the presumption of innocence
and is consequently, to that extent, inconsistent with the Charter. Mr. Maseko has submitted that, on that ground alone, Decree No.
3 should be struck down. The Charter has not, however, been incorporated in the domestic law of Swaziland and the question therefore
arises whether counsel’s submission is tenable.
I have already referred to the provision in the Charter that Member States agreed to give effect to the rights enshrined in the Charter
by undertaking to adopt legislative or other measures to give effect to them. This appears to be an acknowledgement that incorporation
is required before the Charter becomes effective as part of the law of the member states.
This is in accordance with decided cases, of which there are many. In Pan American World Airways Inc. vs S.A. Fire and Accident Insurance Co. Ltd 1965(3) SA 150(A) at 161 B – D the Appellate Division of South Africa held
“Apart from this, there is a further difficulty in the way of the appellant. It is common cause, and trite law, I think, that
in this country the conclusion of a treaty, convention or agreement by the South African Government with any other Government is
an executive and not a legislative act. As a general rule, the provisions of an international instrument so concluded, are not embodied
in the municipal law except by legislative process…..In the absence of any enactment giving their relevant provisions the force
of law, they cannot affect the rights of the subject.”
See, too, Maluleke v Ministry of Internal Affairs 1981(1) SA 707 (BSC) at 712H
Tshwete vs Ministry of Home Affairs (RSA) 1988(4) SA 586(A)
Swissborough Diamond Mines vs Government of R.S.A. 1999(2) SA 279(TPD)
On this aspect of the matter I would also refer to authorities for the proposition
that if there is a dispute involving interpretation of the Constitution itself, it may be helpful to employ the contents of treaties
or the like, entered into by the Government, as an aid to that interpretation. Thus in
