Country Report on Human Rights Practices for 1989
SWAZILAND
.
Swaziland is governed as a modified traditional monarchy with
all executive, legislative, and judicial powers ultimately
vested in the King. Advised by the Queen Mother, traditional
figures, and cabinet ministers, he rules according to Swazi
law and custom, never codified but ultimately determined by
himself and his advisors. Swaziland's Government features
both "modern" and "traditional" branches--a cabinet,
parliament, and courts which follow Western law, and a tribal
hierarchy with "national" courts which follow traditional
Swazi law and custom. The Cabinet is appointed by the King
from among Members of Parliament and is responsible to him.
While Swaziland obtained a constitution containing a bill of
rights at independence, it was repealed by King Sobhuza II in
1973 on the grounds that it introduced political practices
which were incompatible with the Swazi tradition of
decisionmaking.
National defense is provided by the Umbutfo Swaziland Defense
Force, consisting of fewer than 3,000 troops. The Royal
Swaziland Police is the primary internal security
organization. These forces must cope with the spillover from
southern African regional conflicts. The use of Swaziland by •
the African National Congress (ANC) as a transit corridor into
South Africa has led to occasional confrontations involving
ANC members. South African security forces, and Swazi
authorities. The influx of Mozambican refugees has placed an
additional strain on the Swazi security apparatus. Both the
police and the defense force answer to civilian authorities.
Swaziland has a free-market economy, with relatively little
government intervention in the marketplace. The majority of
Swazis are engaged in subsistence agriculture. The success of
the economy depends largely on the export sector, which is
composed primarily of large, foreign-owned firms. Most
imports come from South Africa.
While human rights are generally respected in Swaziland, there
are important restrictions on free speech, assembly, and
political rights. Other human rights problems include abuse
of prisoners, arbitrary detention, and discrimination
(including violence) against women.
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 or allegations in 1989 of such killings
by agents of the Swazi Government. However, in February three
South Africans, believed to be ANC-af filiated, were shot to
death in what was thought to be a politically motivated
killing. There were unsubstantiated charges, that agents of
the South African security forces were responsible; the
murders remain unsolved. In June an ANC member was convicted
of murdering a Swazi citizen. The ANC member claimed he had
shot in self-defense, mistaking the victim for a South African
Defense Force agent.
b. Disappearance
There were no reports of disappearance in 1989.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Torture, as a rule, is not practiced in Swaziland. However,
there are occasional allegations made by prisoners of police
and military threats and beatings. Complaints generally come
from criminal, not political, prisoners. Police have also
been accused of transporting persons they have arrested in the
trunks of their cars. Defendants occasionally claim that
confessions have been extorted by the police and that these
confessions are sometimes accepted by the courts. Caning can
be administered to youths involved in either petty or violent
crimes.
d. Arbitrary Arrest, Detention, or Exile
Swazi law requires warrants for arrests in all but certain
-exceptional circumstances. These exceptions, however, are
poorly defined and, in practice, police who have strong
suspicions about a suspect do not normally seek a warrant.
Detainees are allowed to consult with a lawyer of their own
choice, and provision for bail exists. A 1978 law permits the
Government to detain any person without charge for a renewable
period of 60 days. Detention under this law cannot be
appealed to the courts, though it may be appealed directly to
the Monarch. The law, invoked several times in 1988, was
again used in 1989.
In February nine persons were detained under 60-day orders for
their suspected involvement in a prison escape plot with
political overtones. Six of the detainees were released after
60 days, while three had their detentions renewed for an
additional 60 days before being released. Two of the
detainees were subsequently charged for assisting in the
escape and brought to trial.
In July a 60-day detention order was invoked against the
Secretary General of the Swaziland Union of Financial and
Allied Workers. He was released after 4 days in detention
following a public outcry against his arrest.
With regard to forced or compulsory labor, see Section 6.c.
e. Denial of Fair Public Trial
The modern judiciary consists of the Court of Appeals, the
High Court, and various subordinate magistrates' courts which
are independent of executive and military control and free
from intimidation from outside forces. Some members of the
judiciary are not Swazi but are appointed from the bars of
other countries with compatible legal systems. In
magistrates' courts, the defendant is entitled to counsel at
his or her own expense. Court-appointed counsel is provided
in capital cases or where difficult points of law are at
issue. There are well-defined appeal procedures up to the
Court of Appeals, the highest judicial body. The right of
appeal, however, is not guaranteed to persons held under the
1978 detention law or to those charged with sedition or an
offense against the King.
The right to a fair public trial is provided for by law and is
honored in practice, although the court president can order a
trial to be held in camera in certain (e.g., rape) cases. The
Prime Minister can also require that a trial be held in
private, but this is rare. In sedition cases, the Prime
Minister may order that proceedings be held in camera before a
special tribunal appointed by the King. The special tribunal
may, if it deems it appropriate, adopt rules and procedures
apart from those applied in the High Court. In 1987 King
Mswati III issued the tribunal decree, which permitted the
formation of a special tribunal to try offenses committed
against the King and Queen Mother. This decree permits in
camera sessions and forbids the accused from having legal
representation. The decisions of the tribunal cannot be
appealed. There were no trials by special tribunal in 1989.
Amnesty International's 1989 Report criticizes the 1987-88
treason trial of 10 persons before the special tribunal on the
grounds the defendants were not permitted legal representation
and were denied any right of appeal. Nine of the 10 persons
were given royal pardons in 1988, but one. Prince Mtanasibdi
Dlamini, remained in prison at the end of 1989, serving an
earlier sentence imposed for obstructing justice.
In traditional courts, where ethnic Swazis may be brought for
relatively minor offenses and violations of Swazi traditional
laws or customs, legal counsel is not allowed, but defendants
may speak on their own behalf. Sentences are subject to a
review system and appeal to the High Court and the Court of
Appeals. Accused persons who desire counsel can insist that
their case be transferred from the traditional courts. There
are occasional disagreements over which court system should
have jurisdiction in a particular case. By law, the public
prosecutor has the authority to determine which court should
hear the case. However, there have been instances of the
police determining where a case should be tried. Unless the
defendant, who may be unaware of his or her legal rights,
protests the decision, cases may be tried in the wrong court
system, and this fact never comes to light.
Prisoners frequently complain of undue delays in their cases
coming to trial. Such delays are generally the result of
bureaucratic inertia rather than a deliberate policy. A
prisoner charged with motor vehicle theft went on a hunger
strike in April to protest a 6-month delay in his case being
tried. He was tried and sentenced 2 weeks later.
f. Arbitrary Interference with Privacy, Family, Home, or
Cor respondence
The law generally requires that a warrant be issued by a
magistrate before police may search homes or other premises.
However, the law also provides police officers with the rank
of subinspector or higher the right to search without a
warrant if they have reasonable cause to do so. Generally,
this provision is meant to allow the police to obtain evidence
that might otherwise be lost through delay in obtaining a
warrant. While searches without warrants do occur relatively
frequently in Swaziland, the issue of legality of evidence, or
of the method by which evidence is obtained, rarely arises in
court. While there is no evidence that the Government
actively monitors private correspondence or conversation, the
Swazi police have been known to apprehend and interrogate
persons reported to have made objectionable statements about
the King during the course of private conversation or in
telegraphic correspondence.
In response to an increase in criminal activity, police
occasionally erect roadblocks and conduct generalized,
unannounced house searches in attempts to seize weapons and
24-900 O—90-SWAZI LAND
illegal immigrants. One such sweep in April resulted in some
248 arrests on charges ranging from illegal immigration status
to possession of weapons and drugs.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Freedom of speech is limited. A Swazi's main traditional
forum for expressing discontent is through his or her Chief,
and public condemnation of certain policies and people is not
permitted. Criticism of the royal family and of national
security policy is forbidden. The media, both
government-controlled and private, practice self-censorship,
refraining from criticism of sensitive government activities
or commenting on controversial issues involving the royal
family. Swazi radio and television stations are government
controlled, and there is also a semiofficial newspaper.
Private companies and church groups publish several newspapers
and magazines.
In March four persons were arrested for possession of
allegedly seditious literature published by an illegal
political party, the People's Democratic Movement (PUDEMO).
They included the outspoken leader of the defunct Ngwane
National Liberatory Congress (the sole opposition party before
the abolition of political parties in 1973) and a trade
unionist. The four denied membership in PUDEMO and maintained
that they had received the pamphlets unsolicited. Charges
against the four were eventually dismissed.
The Government has occasionally proscribed publications,
including foreign publications, deemed to be prejudicial to
the interests of defense, public safety, or public health.
Two major South African publications, banned in 1985 because
of critical articles on Swazi domestic politics, remained
excluded in 1989. No new bannings occurred in 1989.
Academic freedom is also limited; direct attacks against the
royalty or government ministers are not permitted, and certain
aspects of government policy (i.e., security) may not be
discussed.
b. Freedom of Peaceful Assembly and Association
The King's 1973 proclamation prohibits meetings of a political
nature and demonstrations in any public place without the
consent of the commissioner of police. In practice, no permit
is required for most gatherings. Nevertheless, in 1989 police
used this power to stop meetings which were embarrassing to
the Government. In March, citing failure to obtain a permit,
police broke up a meeting which had been called by residents
of a government housing project to protest rent increases.
Also in March, the police closed a meeting of the Swaziland
National Association of Civil Servants because the
organization had not obtained a permit to hold the meeting.
Freedom of association is generally permitted, provided that
the organization has no political agenda. Trade associations
and professional bodies exist in Swaziland and maintain
relations with recognized international bodies in their fields.
For a discussion of freedom of association as it applies to
labor unions, see Section 6. a.
c. Freedom of Religion
Swaziland is hospitable to all religious beliefs, informally
considers itself to be a Christian country, and permits a wide
variety of foreign missionary activity. Organized religions
are free to establish places of worship and train clergy. No
licenses are required for such organizations or in order to
publish religious texts, nor are there any bars to religious
travel outside the country. At the same time, the authorities
promote the observance of Swazi customs. When these customs
conflict with religious beliefs, problems occasionally arise.
Church condemnation of traditional Swazi ceremonies in the
past has led to the arrest and deportation of church figures.
In 1989 there were several cases of individual chiefs in the
rural areas creating difficulties for Jehovah's Witnesses. In
one case, a chief ordered the eviction of two families of
Jehovah's Witnesses from his territory, claiming that they had
sown dissent among his people.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Swazis may travel and work freely within Swaziland. Those who
have left the country may freely return, and citizenship is
not revoked for political reasons. Swazis generally can
obtain a travel document to travel in the region, but the
Government occasionally refuses to issue a passport if the
applicant does not appear to have adequate means of support
while abroad. Citizenship for nonethnic Swazis and persons of
mixed heritage can be difficult to establish, creating
problems in obtaining passports and other civil documents.
Swaziland treats displaced persons from neighboring states
well. About 7,000 primarily ethnic Swazis from South Africa,
who fled Zulu administration in the black South African
homeland of Kwazulu, reside in Swaziland. The last few years
have seen a large influx in the number of Mozam.bican refugees
living in Swaziland. While approximately 16,000 were
officially registered by the United Nations High Commissioner
for Refugees (UNHCR) , it is believed that an additional 30,000
or more may have been in Swaziland illegally. Swaziland
permits the UNHCR to interview those who seek refugee status
and grants asylum if the person can establish that he or she
will face persecution if repatriated. Illegal aliens who
cannot establish their refugee status, however, can be
deported. In practice, many of those refugees indentified for
deportation end up serving extended time in detention while
arrangements for their repatriation are made. This delay is
due to the absence of an agreed repatriation procedure with
Mozambique, rather than a policy to penalize illegal
immigrants.
As in previous years, the Swazi police arrested a number of
ANC activists (primarily South Africans) in 1989. They were
turned over to the local UNHCR representative for transfer to
countries (usually Zambia or Tanzania) willing to receive them.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Swazi citizens do not have the right to change their
government through democratic m.eans. Political parties are
outlawed, and an organized political opposition does not
exist. The King rules in conjunction with the Queen Mother.
Traditionally, decisionmaking has been by consensus, with the
King soliciting advice from the royal family, the senior
chiefs, the Cabinet, Members of Parliament, and other
interested parties. Still, the King's power is absolute, and
he can accept or dismiss advice as he sees fit. Public debate
of political matters under consideration by the Monarch is
rare. Legislation is passed by the Parliament and is then
submitted to the Monarch for assent--which may be withheld.
The King can also legislate by decree.
Swazis participate in the selection of Members of Parliament.
Parliamentarians (50 in the house and 20 in the senate) are
chosen in a complex process involving the interaction of a
7-member electoral committee, 40 traditional districts, 80
electors, and the King's appointive powers. The King can
dissolve the Parliament and call new elections, normally held
every 5 years. The Parliament serves as a forum for
examination and criticism of government policies, but matters
are seldom pressed to a vote and, when they are, unanimity is
usually the result.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Swaziland prefers to keep a low profile in dealing with
nongovernmental human rights organizations. There are no
organizations which exclusively promote human rights in
Swaziland. The Government was not the subject of any
resolutions by official international organizations in 1989.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
Unique Swazi governmental and social traditions unavoidably
create differences between ethnic and nonethnic Swazis. For
example, ethnic Swazis from South Africa seeking political
refuge in Swaziland are treated much like Swazi citizens and
are often given work permits. Those who are not ethnic Swazis
are treated as foreigners, and permits are given more
reluctantly. A significant expatriate community exists,
composed primarily of businessmen and missionaries.
Traditional values are a major influence on the role of women
in Swazi society, and the dualistic nature of the legal system
complicates the issue of women's rights. A wife's legal
rights, for example, differ substantially depending on whether
she is married under traditional or civil law. In a
traditional marriage, a woman is treated as a minor under the
law. She is not responsible for contracts she signs, and she
cannot, except in rare instances, hold real estate or inherit
property in her own name. She must normally obtain her
husband's permission to borrow money, to leave the country,
and, in some cases, to take a job. A woman divorced in a
traditional court has no right to the legal custody of her
children. In traditional marriages, a man can take more than
one wife. In some cases, women are compelled by family
pressure to marry without their consent, although this
practice is decreasing over time. Women who are forced to
marry do have legal recourse, but few resort to it, both out
of ignorance of their rights and out of fear of ostracism by
family members. Wives chosen by the King do not have legal
recourse. 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.
Even under civil law, marriage is governed by Swazi law and
custom unless the parties to the marriage sign a prenuptial
agreement. With a prenuptial agreement, property can be
separately maintained, anji the wife can enter into contracts
and legal proceedings without her husband's consent. A man
who marries a woman under civil law legally cannot have more
than one wife, although in practice this restriction is
sometimes ignored. Divorce does not automatically lead to
loss of custody of children for the wife. Rather, custody is
awarded according to the interests of the child, and
maintenance for wives granted custody is generally provided.
Marriage is further complicated by the fact that a man can
legally marry a woman in both civil and traditional
ceremonies, creating problems in determining which set of
rules applies to a marriage. The Svjaziland Council of
Churches opened a legal aid center in 1988 which provides free
information on issues such as marriage and maintenance laws
Physical abuse of women, particularly wife beating, is
frequent. Customarily, a Swazi man has the right and duty to
beat his wife and children. Women have the right under the
law to charge their husbands with assault, but few know that
they can resort to legal remedies. The traditional courts are
generally unsympathetic to "unruly" or "disobedient" women.
The modern courts are more likely to convict wife beaters, but
sentences, even when beating results in death, are frequently
light.
In the workplace, the Employment Act of 1980 forbids employers
to discriminate among employees based on race, religion, sex,
or political affiliation. It requires equal pay for equal
work. Even so, around 75 percent of all private sector jobs
are held by men, and their average wage rate by skill category
is in some sectors three times that of women (1986).
The Swaziland Federation of Trade Unions announced in August
that it would be forming a special women's wing to address
issues of discrimination in the workplace. This wing will
focus on the issues of wage discrimination and maternity
benefits, as well as other sex-based discriminatory practices.
In August the Ministry of Labour and Public Service announced
a new housing policy disadvantageous to women. It stated that
married women occupying government houses would have to vacate
the houses and live with their husbands, if the husband was
not a government employee. Women challenged the regulation as
discriminatory, and no effort has yet been made to enforce it.
Discrimination on the basis of religion, language, or social
status does not occur to any significant degree in Swaziland.
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. Employers are obliged
to recognize a union when it achieves 40 percent membership
among employees. Unions are able, within limits, to operate
independently of government or political control. This
independence is contingent on their acting 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 provisions for election of officers by secret ballot,
annual meetings open to all members, fees, grounds for
suspension of members, and expenditure of union funds. The
constitution must be approved by the labor commissioner, who
can strike out or amend provisions which violate requirements
of the law. Unions cannot be dissolved as long as they adhere
to the regulations of the IRA. Unions which fail to maintain
proper registration with the labor commissioner can be
dissolved.
For several years, including in 1989, the International Labor
Organization's Committee of Experts (COE) has noted
discrepancies between ILO Convention 87 on Freedom of
Association and the IRA. The several concerns of the COE
include the broad 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 COE has called on the Government to bring its
legislation into conformity with the Convention it ratified in
1978.
The IRA details the steps to be followed when disputes arise,
including what determines a legal or illegal strike. The Act
provides for an industrial court, presided over by a High
Court judge, for the settlement of employment disputes. The
industrial court is empowered to hear and give judgment on
disputes and grievances and to enjoin a union from striking.
Historically, strikes have been rare in Swaziland. However,
consciousness of workers' rights is growing rapidly. When
disputes arise, the Government tries to intervene to reduce
the chances of a strike, which may not be legally called until
all avenues of negotiation have been exhausted. The labor
commissioner can then issue a 14-day postponement of a strike,
which can be extended upon presentation of further
documentation. In October 300 employees of the Manzini town
council were fired after going out on strike in contravention
of the Industrial Relations Act. Where the national interest
is concerned, the Minister of Labor can outlaw a strike or
refer the dispute to the industrial court.
In June the Swaziland Union of Financial and Allied Workers
(SUFIAW) announced its intention to strike for a salary
increase after negotiations had failed to result in an
agreement. The industrial court issued an injunction against
the strike which the union accepted. Shortly after the
injunction order, however, the Secretary Genera] of SUFIAW was
detained under 60-day detention orders. A public outcry
against his arrest led to his release 4 days later. The
industrial court eventually helped negotiate an agreement on
wages between SUFIAW and the bankers' organization. In August
500 workers at an agricultural operation were fired when they
refused to abandon an illegal strike. There were several
wildcat strikes during the year which were resolved without
recourse to the industrial court.
The Swaziland Federation of Trade Union (SFTU), the union
umbrella organization, is a member of the Organization of
African Trade Union Unity. The SFTU also represents Swazi
labor in the International Confederation of Free Trade Unions
and the Southern Africa Trade Union Coordinating Council.
b. The Right to Organize and Bargain Collectively
The Industrial Relations Act of 1980 provides for the right to
organize and bargain collectively. While collective bargaining
does occur, it is not widespread. The IRA has provisions
outlawing interference and antiunion discrimination. Disputes
in this area are referred to the labor commissioner and the
industrial court, if necessary. Employers can prohibit
employees from attending union meetings if the union has not
achieved the 40-percent membership level required for
recognition. However, members of legally recognized unions
must be allowed to attend union activities. Although many
employers habitually resist recognition and force the issue
into the industrial court, the court generally rules in favor
of the unions. The Government wishes to avoid labor
confrontation and encourages voluntary negotiations between
employers and unions. While not antiunion, the Government
publicly expresses its concern that labor unrest threatens
Swaziland's image as a stable and attractive place for foreign
investment.
The ILO COE has remarked on discrepancies between national
legislation and Convention 98 on the Right to Organize and
Bargain Collectively which Swaziland also ratified. The COE
specifically noted the absence of provisions respecting the
protection of workers' organizations against acts of
interference by employers and the compulsory registration of
collective agreements by the industrial court, which may
refuse registration in the event of nonobservance of
government directives on wages.
There are no export processing zones in Swaziland. Labor
legislation is applied uniformly throughout the country.
c. Prohibition of Forced or Compulsory Labor
There is no forced labor in Swaziland, and such labor is
legally prohibited.
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 school days and limits such work overall to 6 hours
per day or 33 hours per week. Employment of children in the
formal sector is not customary in Swaziland.
e. Acceptable Conditions of work
There is extensive legislation, notably in the Employment Act
of 1980, protecting worker health and safety in Swaziland.
There is a maximum 48-hour workweek in the modern sector,
except for security guards, who work up to six 12-hour shifts
per week. There is no overall minimum wage, but rather a
sliding scale of minimum wages depending on the type of work.
A casual laborer must legally make $9 a week, while a security
guard must be paid at least $15 per week. The minimum wage
for a clerk is $19, and for a laboratory technician, $62.
Employees receive time and a half for overtime worked.
Employees who work on Sundays or public holidays receivedouble pay. Workers receive a minimum of 14 days' annual
leave after each period of 12 months of continuous service (21
days for security guards) . These standards are generally
upheld in the formal sector.
While wage levels in Swaziland are low by Western standards,
by African standards most Swazis employed in the formal sector
do relatively well, although this is certainly not the case
for persons on the lower end of the scale, such as security
guards or casual laborers. Most Swazi families also farm and
graze cattle on Swazi national land on which their homesteads
are erected and from which family income also derives. When
this source of income is taken into account, most Swazis can
be said to earn a decent living.
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. In
1986 only 20 safety inspections took place, none in
manufacturing industries. By 1988 this figure had risen to
83, with 11 inspections of industrial operations. There were
1,070 industrial accidents reported to the Ministry of Labor
in 1988, higher than the figure for 1986 (923), but lower than
the 1,275 reported in 1984. Given the rapid growth in
industrial employment, the relatively static level of
industrial accidents is a sign that safety measures are
generally observed
