Swaziland has a dual legal system, comprised of both a Roman-Dutch based common law system applied in common law or civil courts and a traditional Swazi law and custom based system applied in Swazi National Courts.
Swaziland gained independence from Great Britain in September 1968, having been a Protectorate since the end of the Boer War in the early 1900s. The 1968 Constitution, which provided for a constitutional monarchy and clear separation of powers between the executive, legislative and judicial branches of the government, was repealed by proclamation of King Sobhuza II on 12 April 1973 that vested in the King all legislative, executive and judicial powers. Parliament was dissolved and political parties and trade unions were banned by the proclamation, which however did maintain certain constitutional provisions related to the courts, their working methods, the security of tenure of judges and the administration of justice. The 1973 Decree was never repealed and remains in effect (insofar it is not inconsistent with the 2005 Constitution, cf. below).
From 1973 to 1978, King Sobhuza II ruled and legislated in the country through Royal Decrees and King’s Orders-in-Council. The 1978 Establishment of the Parliament of Swaziland Order nominally returned legislative powers to the people, declaring that the monarchy could issue no further royal decrees until a new constitution entered into force. The Order introduced the system of Tinkhundla, a system of government ostensibly designed to blend Western democracy with traditional African structures of government, but in which political parties play no role.
While a constitution was promulgated on 13 October 1978, it was not formally submitted to the people and thus never came into force. A new Constitution, which had been in the drafting process since 1996, was adopted in July 2005. The Constitution is the supreme law and other law that is inconsistent with it is void, to the extent of the inconsistency. In the pre-amble, it is recognized that “it has become necessary to review the various constitutional documents, decrees, laws, customs and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi society”.
Swaziland’s laws are drawn from a variety of sources: the Constitution; legislation; common law; judicial precedent; customary law; authoritative texts; and, decrees. The country belongs to the dualist legal tradition: unless an international agreement is self-executing, it becomes law only when enacted into law by Parliament.
- 1. The Constitution of the Kingdom of Swaziland Act, 2005 (hereafter “Constitution”), S. 252.
The Law of Swaziland
(1) Subject to the provisions of this Constitution or any other written law, the principles and rules that formed, immediately before the 6th September 1968 (Independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute.
(2) Subject to the provisions of this Constitution, the principles of Swazi customary law (Swazi law and custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Swaziland.
(3) The provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that it is, inconsistent with a provision of this Constitution or a statute, or repugnant to natural justice or morality or general principles of humanity.
(4) Parliament may-
(a) provide for the proof and pleading of the rule of custom for any purpose;
(b) regulate the manner in which or the purpose for which custom may be recognised, applied or enforced; and
(c) provide for the resolution of conflicts of customs or conflicts of personal laws.
- 2. See the King’s Proclamation to the Nation (the “1973 Decree”).↵
- 3. Swaziland is divided into constituencies (tinkhundla) that are subdivided into chiefdoms. The voters of each of several chiefdoms in an inkhundla nominate candidates to stand for election. These then compete with other candidates nominated in this way to represent the inkhundla in the House of Assembly. The system emphasizes devolution of State power from central government. See Constitution, S. 79-80.
System of government
79. The system of government for Swaziland is a democratic, participatory, tinkhundla-based system which emphasises devolution of state power from central government to tinkhundla areas and individual merit as basis for election or appointment to public office.
80. (1) For purposes of political organisation and popular representation of the people in Parliament, Swaziland is divided into several areas called Tinhundla.
(2) An inkhundla–
(a) is established by the King on the recommendation of the Elections and Boundaries Commission;
(b) consists of one or more chiefdoms which act as nomination areas for the elected members of the House (the primary level elections);
(c) is, among other things, also used as a constituency for the election of the elected members of the House (the secondary level elections).
(3) The tinkhundla units or reas, inspired by a policy of decentralisation of state power, are the engines of development and the central pillars underpinning the political organisation and economic infrastructure of the country through which social services to the different parts of the Swazi community are facilitated and delivered.
- 4. Constitution, S. 2.
(1) 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.
(2) The King and iNgwenyama and all the citizens of Swaziland have the right and duty at all times to uphold and defend this Constitution.
(3) Any person who –
(a) by himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or
(b) aids and abets in any manner any person referred to in paragraph (a);
commits the offence of treason.
- 5. Constitution, Pre-amble, fourth recital.
Whereas it has become necessary to review the various constitutional documents, decrees, laws, customs and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi society;
- 6. Buhle Dube and Alfred Magagula, Update: the law and legal research in Swaziland (June 2012). http://www.nyulawglobal.org/globalex/swaziland1.htm (accessed 5 March 2014).↵
- 7. Constitution, S. 238(4).
Unless it is self-executing, an international agreement becomes law in Swaziland only when enacted into law by Parliament.
Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.