Human Rights Committee
10 July 2017
The Human Rights Committee today concluded its consideration of Swaziland’s implementation of the provisions of the International Covenant on Civil and Political Rights, reviewed in the absence of a report.
In his opening remarks, Edgar E. Hillary, Minister of Justice and Constitutional Affairs of Swaziland, regretted that the presentation was the result of the country’s inability to report in a timely manner, due to the lack of institutional memory and dedicated focal personnel. Since 2005, when the initial report was due, there had been remarkable development in the implementation of civil and political rights. On 26 July 2005 the Kingdom of Swaziland had adopted a constitution after wide consultation with citizens, civil society organizations, and international and regional partners. Chapter III of the Constitution entrenched a bill of rights which provided for the fundamental human rights contained in the Covenant, as well as a protection mechanism in cases of human rights violations ruled by the High Court of Swaziland. Furthermore, Swaziland was reviewing the existing legislative framework with the intention of aligning it with the Constitution and international human rights instruments to which the country was a party.
In the ensuing discussion, Committee Experts acknowledged the fact that Swaziland had been reviewing a number of laws, urging the Government to move along the pending ones. They drew attention to the somewhat unclear relationship between customary law, common law and the Constitution, especially in the area of land and property rights for widows and orphans. They also inquired about the context in which a state of emergency could be declared, noting that the King’s 1973 Emergency Decree was used to ban political parties and assemblies for non-political purposes. Experts also highlighted the issues of discrimination against HIV positive persons, and lesbian, gay, bisexual, transgender and intersex persons, the inequality of women in marital status, women’s participation in political life, deaths in police custody, lack of a narrow definition of “terrorist act,” participation in public affairs and the immunity of the King and royal family, child and early marriages, widespread corruption, trafficking in persons, and forced labour.
In his concluding remarks, Mr. Hillary noted that the advent of the 2005 Constitution had brought about a need to align Swazi laws with the Constitution. It was unfortunate that the lack of financial and human resources did not allow the setting up of a law review mechanism. Nevertheless, numerous draft bills proved the commitment of Swaziland to adhere to its obligations under the Covenant. To that end, the Government looked forward to guidance by the Committee.
Yuji Iwasawa, Chairman of the Committee, thanked the Government of Swaziland for having submitted written responses to the list of issues and for having sent a high-level delegation. He highlighted some of the important issues raised by the Experts during the discussion, namely the relationship between customary law, common law and the Constitution, the status of women, polygamy, discrimination against widows, women’s limited access to land, discrimination against HIV positive persons, state of emergency, child and forced marriage, deaths in police custody, independence of the judiciary, and prohibition of political parties.
The delegation of Swaziland consisted of representatives from the Ministry of Justice and Constitutional Affairs, the Public Prosecutions Office, the Attorney General’s Office, the Human Rights Commission, and the Permanent Mission of Swaziland to the United Nations Office at Geneva.
The Committee will next meet in public today at 3 p.m. to consider the fourth periodic report of Madagascar (CCPR/C/MDG/4).
The Committee considered Swaziland’s implementation of the provisions of the International Covenant on Civil and Political Rights in the absence of a report. The list of issues in relation to the implementation of the Covenant in Swaziland can be read here: CCPR/C/SWZ/Q/1.
Presentation of the Responses to the List of Issues
EDGAR E. HILLARY, Minister of Justice and Constitutional Affairs of Swaziland, presenting the Government’s responses to the list of issues adopted by the Human Rights Committee at its one hundred and nineteenth session, regretted that the presentation was the result of the country’s inability to report in a timely manner and expressed hope that that would not happen again in the future. The current set up of ad hoc committees proved to have many challenges, the most prominent being lack of institutional memory and dedicated focal personnel, he said, noting that the reporting process had helped the Government to identify gaps, the most glaring one being the lack of records and data capturing initiatives. Since 2005, when the initial report was due, there had been remarkable development in the implementation of civil and political rights in the country, including the adoption on 26 July 2005 of a Constitution after wide consultations with citizens, civil society organizations, and international and regional partners. Chapter III of the Constitution entrenched a bill of rights which provided for the fundamental human rights contained in the Covenant, as well as a protection mechanism in cases of human rights violations ruled by the High Court of Swaziland. Furthermore, Swaziland was reviewing the existing legislative framework with the intention of aligning it with the Constitution and international human rights instruments to which the country was a party.
The Government had noted the need for a law reform commission, said Mr. Hillary, but the establishment of such a commission had been deferred due to the lack of resources. The Constitution had ushered a culture of protection and promotion of the rights of vulnerable groups, such as women, children, and persons with disabilities. As for non-discrimination and equality of men and women, there was a significant paradigm shift and women enjoyed the same opportunities as men in political, economic and social life. The level of employment among women and the proportion of women in decision-making positions, both in the private and public sectors, had improved. Women constituted 25 per cent of cabinet ministers, 33 per cent of magistrates, and 23 per cent of staff in diplomatic missions. Despite those developments, gender-based violence remained prevalent in the country. As for children’s education, the Government had successfully rolled out free primary education in all State schools. Even though there was a provision in the law for the death penalty, Swaziland had adopted a moratorium and no death penalty had been carried out since 1983. In the health sector, efforts were being made to prevent teenage pregnancy, and reduce the maternal mortality rate and HIV-related deaths. The number of HIV-related deaths had decreased from 8,751 in 2005 to 2,707 in 2017. In the past, Swaziland had experienced a judicial impasse, which had resulted in an outcry from human rights defenders globally; that crisis had been overcome and all judges of the superior courts were now employed permanently and in line with provisions of the Constitution, concluded Mr. Hillary.
Questions by Committee Experts
Even though the Government of Swaziland was 12 years overdue in submitting its report, the Committee welcomed the delegation and expressed hope that it would submit reports in the future. They remarked that the Covenant were not directly applied by domestic courts and that international human right instruments only had a persuasive role, and asked about steps taken to familiarize the stakeholders with the Covenant in a structural manner?
What was the relationship between the Constitution, common law, customary law and the Covenant, especially with respect to land and property issues? Was there legislation to give effect to Article 19 of the Constitution, and was there a comprehensive land policy? There were reports that people who had been left homeless had been left without compensation, could the delegation comment and inform about the plans to accede to the Optional Protocol to the Covenant?
What was the status of the draft bill to establish an independent and impartial commission on human rights, and the progress in establishing a national mechanism for reporting and follow-up in order to engage with international and regional human rights mechanisms?
According to the Covenant, the institution of a state of emergency had to constitute a clear threat to the nation - what was the context that could lead to the declaration of a state of emergency? Could the State party explain which derogations from the Covenant were protected? Civil society reported of the continued use of the state of emergency under the 1973 Emergency Decree to ban political parties and assemblies for non-political purposes. What was the status of the 1973 Emergency Act?
Was discrimination based on gender identity and sexual orientation prohibited by any laws? Violence against lesbian, gay, bisexual, transgender and intersex persons had been reported by civil society, namely two murders. What mechanism was in place to record such crimes? Were such crimes prosecuted as ordinary or hate crimes? There was criminalization of same-sex relations for persons under the age of 21 under the crime of sodomy. Were there plans to include the rape of men in the Criminal Law in order to repeal the crime of sodomy?
Was the principle of non-discrimination against persons living with HIV/AIDS legally enshrined and what was being done to ensure robust legal protection against such discrimination? What were the plans to fight the widespread stigmatization of HIV-positive persons?
Experts noted that maternal mortality rates had doubled since 2007 and asked for explanations for that increase and about action taken to address maternal mortality specifically due to unsafe abortion. What procedural requirements were in place to access legal abortion and what were the penalties for unlawful abortion? Teenage pregnancy stood at 25 per cent - were there plans to expand compulsory sexual education programmes and to ensure free access to contraception by teenagers?
As for non-discrimination and equality of men and women, Experts welcomed the ratification by Swaziland of the Convention on the Elimination of All Forms of Discrimination against Women without any reservations. However, there had been reports that the marital status of women had been used as a ground for discrimination, such as not being able to access credit without the husband’s consent. What specific efforts had been taken to align the Marriage Act with the Covenant and the Convention on the Elimination of All Forms of Discrimination against Women? Speaking of inheritance and property rights, Experts reminded that widows were reported to have been dispossessed and asked how widows and orphans were able to access redress in light of adverse customary laws and practices.
Violence against women was a serious problem in the country. In 2001, 77 per cent of Swazi women had been victims of violence; in 2016, almost 48 per cent of women had encountered some form of sexual violence, whereas 18 per cent had forced sexual relations before the age of 18. How was rape defined and did that definition include marital rape? Forced marriages under customary laws continued to be reported. The implementation of the national strategy and action plan to end violence against women 2013-2018 had been stalled. What steps had been taken to effectively operationalize the plan before 2018? The Maputo Protocol provided a very good framework for the protection of women from any form of violence, Experts remarked and asked how specifically had Swaziland complied with its provisions. What was the Government doing to eradicate harmful customary practices against women and children?
Data on women’s participation in the private sector was missing. What was the number of women in leading positions in the public and private sectors? What was the practical implementation of the principle of equal pay for equal work, and of gender sensitivity in the recruitment process? Most married women did not have access to employment because of customary laws, and there were also concerns about the right of women to access courts.
Experts observed the predominance of customary law in the area of the family, and raised the issue of different treatment of men and women regarding the acquisition and transfer of Swazi citizenship. What measures had been taken to remedy women’s limited access to land under the traditional land tenure system? Even though polygamy was outlawed, it was still widely practiced.
What reforms were planned to address the disproportionate use of force and firearms? Could the Government entrust the surveillance and investigation of violations of rights by security forces to an independent body?
According to several sources, more than 28 persons had died in detention under suspicious circumstances, Experts said and asked about measures taken to provide reparation to victims and about the maximum duration of the pre-trial detention. There had been reports of the lack of access to legal counsel and of ill-treatment of persons in detention. Experts highlighted the absence of an independent body to investigate complaints against police and asked about plans in place to create such an independent body. How many police officers had been prosecuted for complaints of ill-treatment? How were international regulations on the treatment of detainees observed? What was being done to accede to the Optional Protocol to the Convention against Torture?
As for counter-terrorism measures, there was a concern that they were used to counter political opposition. What progress had been made to narrow the definition of “terrorist act” and to provide access to effective legal remedies and procedural safeguards under the proposed suppression of terrorism amendment bill?
Experts welcomed the moratorium on the death penalty and asked about the status of individuals already convicted to death and whether their sentences had been commuted.
Replies by the Delegation
EDGAR E. HILLARY, Minister of Justice and Constitutional Affairs of Swaziland, apologized for the delay in submitting the report, noting that it was a serious oversight. He explained that Swaziland had a dual system of laws, including common and customary laws, and that the Government always made sure that customary laws did not violate individual rights. The new Constitution enshrined the same land rights for men and women.
As for the status of the Covenant in domestic law, it was true that it was not transposed, but it was reflected in national legislation. That did not mean that it could not be used as an aid in the interpretation of citizens’ rights. Many lawyers in Swaziland were not familiar with the standards of international human rights instruments. However, that was changing due to an ad hoc training provided by civil society and the Office of the High Commissioner for Human Rights.
With respect to the relationship between the Constitution, common law, customary law and the Covenant, there was often conflict between common and customary laws, said Mr. Hillary, explaining that the courts chose the system of laws that best gave effect to the rights guaranteed by the Constitution. The right to compensation for the violation of individual property rights by the State was enshrined in the Constitution.
The draft bill on the national human rights commission was ready and the delay was due to the late input from civil society. The Marriage Act was outdated and the new one was being prepared, which would also address inheritance rights of women, regardless of whether they were married under common or customary laws. Everyone had the right to go to court and be heard by the court. The principle of equal pay for equal work of men and women was ensured, and it was not true that married women did not have access to employment.
Responding to the question on the use of force by the police, the delegation noted that there were isolated cases and that the police was generally well trained, and the use of force was governed by the principle of proportionality. The investigation of such cases was pending. A new police bill was currently being discussed in the Senate, and it included provisions for the establishment of a commission to deal with police disciplinary issues.
Pre-trial detainees enjoyed all citizens’ rights, including visits and access to legal counsel that was free from monitoring. They had to appear in front of a judicial officer within 48 hours following the arrest. Prison overcrowding was a problem in Swaziland, but all the basic services were offered to prisoners. The delegation denied that opposition leader Mario Masuku had been denied access to adequate medical care while in detention. Only one convict was on death row, a serial killer sentenced for having murdered more than 30 women.
Focal points from all ministries would be appointed for the reporting mechanism, and their terms of reference would be defined.
Abortion was not legal in Swaziland, said the delegate and explained that medical doctors and courts were the only ones who could ascertain legal grounds for lawful abortion. Everyone, and especially youth, had access to contraceptives.
The Suppression of Terrorism Act was under review.
Second Round of Questions by Experts
Experts appreciated the candid reply of the State party regarding the rule of law crisis which had led to the impeachment of the supreme justice and asked about the practical steps taken to ensure that such a crisis would not reoccur. What was specifically being done to guarantee the independence of the judiciary and prevent any sort of political influence on judges or intimidation? As for legal aid services, what was the status of the draft legal aid bill? What steps had been taken to make legal aid services accessible? What was the length of pre-trial detention, especially in politically sensitive cases?
Turning to the issue of trafficking in persons for the purpose of sexual exploitation and forced labour, Experts asked what was being envisaged to reform policy and legislation to punish traffickers and better protect victims. Swaziland was a country of origin, transit and destination of trafficked persons, they said and noted that the Swazi chiefs, under the cover of customary traditions, reportedly forced children to work in the sex trade and domestic servitude mainly in urban areas in Swaziland, South Africa and Mozambique. It was reported that Swazi men from border areas were recruited as forced labourers in the wood industry and mines in South Africa. What were the reasons for the late implementation of the 2015 guidelines for identifying victims of trafficking and the appointment of officers to combat trafficking?
Even though the 2012 law on the protection of the wellbeing of children prohibited corporal punishment, it remained legal in some other contexts, such as education. What measures had been taken to forbid corporal punishment in all settings? What was the explanation for the high number of early marriages? In 2014, birth registration stood at 54 per cent for children below the age of five - what was the data for 2015 and 2016?
Experts were not satisfied with the replies concerning freedom of movement and noted that traditional leaders limited access to their territories in a manner that restricted the activities of civil society. How was the operation of trade unions regulated by the Constitution? What was the percentage of workers belonging to trade unions?
As for freedom of expression, how could it be limited by the Publications Act and anti-terrorism measures? What was the status of the wrongful arrest case of human rights lawyer Thulani Rudolf Maseko and journalist Bheki Makhubu? How would the proposed public order bill impact on the rights to freedom of expression and association and their compatibility with the Covenant?
On the participation in public affairs and the role of the King, the King enjoyed certain immunities and neither the High Court nor the Supreme Court could govern the affairs of the royal house, which was governed by customary law. The King appointed many important political positions. How was the separation of powers ensured? Swaziland was not yet ready to allow political parties to contest elections. How was that consistent with Swaziland’s obligations under the Covenant? There were reports of widespread bribery, influencing citizens’ vote, and the presence of police at polling stations, and concerns were raised that women’s and minorities’ participation in the electoral process was discouraged.
Corruption was a widespread phenomenon in Swaziland, and all of the staff of the Anti-Corruption Commission had been appointed by the King. What measures would be taken to strengthen the effectiveness of the Commission and ensure that cases were fairly adjudicated in court?
Replies by the Delegation
EDGAR E. HILLARY, Minister of Justice and Constitutional Affairs of Swaziland, explained that the 1973 State of Emergency Decree had been repealed when the Constitution had come into power and thus it was not the source of the King’s power. It was also not correct that the 1973 decree was used to suppress political opposition or to proclaim a state of emergency. It was the Constitution that stipulated when a state of emergency could be declared, namely in situations that threatened the life of the nation.
The prohibition of discrimination based on gender identity and sexual orientation was not explicitly stated in the Constitution. However, arbitrary discrimination was not permitted. Violence against lesbian, gay, bisexual, transgender and intersex persons was not classified as a hate crime, but as an assault. Criminalization of sodomy was a common law offence and the State did not have an intention to decriminalize it. The State did not prosecute consensual relations among men. Each form of rape would be criminalized.
As for the stigmatization of HIV positive persons, there was a national and community strategy to deal with that problem. Work with albino persons was also in progress and medical and psychological assistance was provided to persons with albinism. Higher maternal mortality rates were due to HIV. It had been observed that reporting of maternal mortality had been working well only in hospital settings.
Addressing questions about the Marriage Act, the delegation explained that consultations were underway with all stakeholders and the draft bill would soon be sent to the Cabinet. The draft bill would deal with both customary and common law marriages. As for the alignment of customary law with the Convention on the Elimination of All Forms of Discrimination against Women, the Family Law that was in the pipelines should address relevant concerns, including the question of property and inheritance rights. The delegation clarified that polygamy was lawful in Swaziland as long as it was consensual.
As for violence against women, the new marriage bill would criminalize marital rape and it would deal with the issue of the minimum marriage age. Relevant institutions were working on a gender policy. There was no legislation on access to abortion at the moment, but the Government was working to remedy that situation. With respect to the participation of women in the public and private sectors, many of them occupied high-ranking positions. Civic education encouraged women to participate in the upcoming elections. The issue of the transfer of the Swazi nationality through women was under review.
Three cases of death in custody had been recorded during the review period and all three had been investigated, but no criminal proceeding had arisen from those investigations. There was no timeline for the ratification of the Second Optional Protocol of the Covenant.
The positon of Swaziland was that the Constitution was aligned with the basic principles of the independence of the judiciary. Judges enjoyed security of tenure and could only be removed for a cause established by an independent and impartial investigation. They also enjoyed financial independence through guaranteed salaries and pensions. Objective criteria had been established for appointment to judicial office. The Constitution stipulated that no person would interfere with the exercise of judicial functions. The content of the draft legal bill was still being discussed by all relevant stakeholders, namely on what should constitute legal aid.
The length of pre-trial detention was a challenge. But due to the increase in the number of judicial officers, as well as active case management, the Government hoped to better address that challenge.
As for the protection of minors, in schools corporal punishment had been abolished and replaced by positive discipline. In family settings, the State permitted moderate chastising. However, excessive corporal punishment was treated as an offence. The State had significantly strengthened the legal protection of children in the justice system. Children enjoyed the right of assistance by parents or legal guardians, the presumption of innocence and the right to a fair trial. The high number of child marriages would be eliminated by the introduction of the uniform age of marriage for all types of marriages. Child birth registration statistics for 2015 and 2016 were not available.
The immunity of the King and the Queen Mother had been decided by the Swazi nation after extensive public consultations. The fact that the High Court did not have a prerogative in all State matters was due to the country’s dual legal system. The King did not unilaterally appoint members of the Government, but in consultation with relevant State institutions, chiefs, and the nation itself. Chiefs did not influence elections. It was up to the Swazi nation to decide when political parties would take part in the political process. Political parties were not banned per se, but it was deemed that it was better to have individuals run for posts. There had been a backlog in corruption cases. But, due to the increase in the number of judicial personnel there would be soon be more corruption cases investigated. The delegation agreed that the Suppression of Terrorism Act was too broad and that it could be used to suppress political opposition. However, the act would be amended.
Evidence on the ground demonstrated that Swaziland was a transit country for trafficking in persons. Thus, there were no plans to reform relevant policies, but only to better coordinate the work of authorities to prosecute the cases of trafficking. It was not true that Swazi chiefs forced people to work for the King. However, there were cases of recruitment of men for forced labour from the border communities of Swaziland in South Africa. The Government would continue to conduct awareness raising campaigns to address that problem.
For any activity to be conducted in a chiefdom, permission had to be sought. The right to form and belong to trade unions was guaranteed by the Constitution, except for police and correctional officers. The level of membership in trade unions was not known.
The State did not own any newspapers or online publications. They were privately owned. As for broadcasting, there were no privately owned television stations. A new Communications Commission was empowered to grant licenses to commercial television and radio stations.
On the progress made in designating torture as a separate criminal offence, consultations were ongoing.
Follow-up Questions by Committee Experts
Experts noted that measures on streamlining the judicial system with international practices were still lacking, especially with respect to the high level of dispossession of widows and orphans. It was reported that there was no due process in customary courts. What specific steps had been taken to align proceedings at customary courts with fair trial standards?
The King’s proclamation of 1973 criminalized the establishment of political parties. That act was still on the law books and had not been repealed by the 2005 Constitution. Some argued that there was deliberate confusion on the status of that proclamation. The core issue was that the absolute power of the king was still a reality in the country. The right to vote was guaranteed, but the right to political association was not.
Was corporal punishment abolished by law in all settings? What was the meaning of “positive discipline”?
The relationship between customary norms and the Constitution was still unclear. Could customary practices be challenged under the Constitution? Traditional norms and practices still contained discriminatory elements, notably in the case of polygamy and child marriage.
Experts observed that the longer it took for certain pieces of legislation to pass through the process of adoption, the less reassuring it was for the Committee that there was political impetus and will to remedy problems.
Had there been a recognized case of discrimination on the basis of gender identity, sexual orientation or HIV status?
What was the divorce procedure for men and women in a polygamous relationship? What were inheritance regulations for children from polygamous relationships?
It had been previously suggested to Swaziland to reform its legislation in order to put an end to some forms of discrimination against women and children, particularly with respect to marriage and access to land. When would those reforms be completed?
Replies by the Delegation
EDGAR E. HILLARY, Minister of Justice and Constitutional Affairs of Swaziland, noted that courts were open to everyone as long as they were able to bring a complaint. Women participated in all civil activities in the country without discrimination. The traditional justice system could be challenged; it provided for appeal opportunities. Swaziland had received input from the International Labour Organization regarding the new draft bill. Speaking of the King’s proclamation of 1973, Mr. Hillary said that Swaziland did not operate with a political party system; individuals filled in parliamentary posts, not political parties. Addressing the issue of pending legislation, Mr. Hillary said there were logistical problems as it took some time to gather the input of the general population on various laws.
As for the relationship between customary law and the Constitution, the Constitution did not immunize customary law from its application and it was possible to challenge customary law under the Constitution. There was a pending case of a woman who claimed she had been married off under age. Presiding judges were trained on fair trial principles. At the moment, there was no recognized case of discrimination on the basis of gender identity and sexual orientation. However, lesbian, gay, bisexual, transgender and intersex persons could address the courts and present their cases. It was possible to terminate a customary marriage; families terminated such unions and asked traditional courts to expunge the entry in the marriage registry.
EDGAR E. HILLARY, Minister of Justice and Constitutional Affairs of Swaziland, thanked the Committee for having raised important issues, adding that the Government of Swaziland was committed to protecting the rights and freedoms under the Covenant. The advent of the 2005 Constitution had brought about a need to align laws with the Constitution. It was unfortunate that the lack of financial and human resources did not allow the setting up of a law review mechanism. Nevertheless, numerous draft bills proved the commitment of Swaziland to adhere to its obligations under the Covenant. To that end, the Government looked forward to the guidance by the Committee.
YUJI IWASAWA, Chairman of the Committee, thanked the Government of Swaziland for having submitted written responses to the list of issues and for having sent a high-level delegation. He reminded that the purpose of the dialogue was to help State parties to fully implement the Covenant in their territories. Mr. Iwasawa highlighted some of the most important issues raised by the Experts during the discussion, such as the relationship between customary law, common law and the Constitution, the status of women, polygamy, discrimination against widows, women’s limited access to land, discrimination against HIV positive persons, state of emergency, child and forced marriage, deaths in police custody, independence of the judiciary, and the prohibition of political parties.
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