Sunday, June 15, 2008


Swazi Observer

16 May 2008

Lie on your own bed – AG

ATTORNEY General Majahenkhaba Dlamini said political parties and trade unions placed themselves in a situation in which they found themselves excluded from the process of making the country’s constitution.

The AG was addressing a Supreme Court full bench yesterday in a matter in which the political formations and unions (appellants) are challenging the constitution.

Dlamini said it was a position which the progressives took presumably on principle, rightly or wrongly.

He submitted that they submitted their right not to participate on the terms as provided.
“They exercised an option as they saw the situation,” he said.

The AG argued that in participating as required, the political parties/trade unions would not have been compelled to be anything other than their individual, natural or selves.

He told the Supreme Court that the appellants should not complain for having exercised what they considered to be an option open to them.

“It is not as if there was no other way, they had their cake; they ate it,” he contended.

The full bench comprised of Justices Tebbutt, Zietsman, Romodibedi, Ebrahim and Froscroft.
The progressives are National Constitutional Assembly-Trust, People’s United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Trade Unions, Swaziland Federation of Labour and the Swaziland National Association of Teachers.

The respondents include Prime Minister Themba Dlamini, Justice and Constitutional Affairs Minister Prince David, Chairman of the Constitution Drafting Team, Senate President Gelani Zwane and Parliament Speaker Prince Guduza.

The AG said the Constitution Review Commission (CRC) and the Constitution Drafting Commission (CDC) did not flout any provision relevant to constitution-making process.
He submitted that there was no rule of law binding on CRC and CDC to ensure that the appellants were included in the constitution-making process.

“It was enough that the appellants in their individual capacity like everyone else-could take part in the process,” he submitted. The AG also submitted that the progressives cannot have a legal standing for the challenge they had launched, whatever may be the position in other countries.
He argued that there was no statutory basis for their claim.

“The claim cannot be based on the common law nor is it an inherent human right. And it should be remembered that Swaziland is a Kingdom, not a Republic, “ Dlamini contended.

“In general, the court has no power to review any part of the constitution. The reason for this must be obvious. The court is itself a creature of the constitution.

“Where the court may review the constitution, it would be most reluctant to declare any part of the constitution as void.

"Of the cases cited by the appellants, none is to the effect that the court can nullify an entire constitution in the normal course of that court’s function.

“Where constitution provisions seem to be in conflict, the court will do its best to harmonise the operation of those provisions.”

Judgement has been reserved.


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