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25 October 2021 | Story Prof Motlatsi Thabane
Eswatini

Opinion article by Prof Motlatsi Thabane, Research Fellow, Centre for Gender and Africa Studies, University of the Free State

Eswatini (Swaziland) gained independence from Britain in September 1968. Under colonial rule, it was part of a triad of South African High Commission Territories with Botswana and Lesotho. The British started arrangements for granting independence to the three territories at around the same time, but Eswatini received its independence two years after the other two, which received their independence within the same week – Botswana on 30 September 1966, and Lesotho four days later on 4 October 1966.

Transition from colonial rule to independence
An important part of the explanation for the delay in Eswatini’s gaining of  independence was that there was no agreement between the British government and Paramount Chief (as he was styled under colonial rule) Sobhuza II on the one hand, or regarding a political system by which Eswatini would be ruled after gaining independence, on the other hand.

Under colonial rule, the institution of chieftainship in Lesotho had been greatly weakened by alcoholism among the senior chieftainship in particular, and chiefs had become deeply unpopular as a result of collaborating with colonial rulers in the oppression and exploitation of society. In Botswana, chiefs remained powerful and allowed for modernisation of the institution, including educating chiefs and the general population. Eswatini was different. From the beginning, the chieftainship remained strong, popular, deeply conservative, and the king succeeded in incorporating Swazi culture and traditional power structures, both of which he dominated, into the colonial system.   

As they left the High Commission Territories, the British wanted to leave – as they managed to do for Lesotho – independent Eswatini as a constitutional monarchy where power would be exercised by elected representatives of the people. In this, the British were supported by Eswatini’s small middle-class politicians and Eswatini’s small working class. For his part, driven by a seemingly sincerely-held totalitarian and paternalistic vision in which everything had to be done according to Swazi culture that put all power – ritual, political, spiritual, economic – in his hands in the negotiations, Sobhuza II wanted, and held out for a post-colonial political dispensation in which all power rested with him.

The fact that the British were opposed to this, caused a delay in Eswatini’s independence. What is important for modern Eswatini is that the king succeeded. An important concession he was forced to make was a constitutional provision allowing for multi-party democracy, and the right of the people to elect men and women of their choice to represent them in the country’s legislature. However, he countered and undermined even this constitutional provision by establishing his own political party to contest pre-independence elections.

A political theoretical examination of documents explaining the political system that King Sobhuza II wanted, would reveal a much more dangerous authoritarian rule than was, in fact established.

From King Sobhuza II to King Mswati III
In 1973, after independence, the monarch even removed the multi-party concession, suspended the Constitution, and issued a decree that gave him all the power in Eswatini society. This is the dispensation that King Mswati III inherited when he ascended the throne in 1986, following the death of his father in 1982. There must have been hope that the young king would liberalise politics and life in Eswatini. But these hopes have been dashed, because although there have been changes in the country’s constitutional arrangement since Sobhuza II’s death, it was largely cosmetic, and intended to make absolute monarchical rule less unappealing to the eye and ear – with phrases such as ‘monarchical democracy’ – and otherwise intended to entrench the king’s power even further.

From what King Sobhuza II left when he died in 1982, and throughout King Mswati III’s 35-year rule, the royal family have amassed enormous amounts of wealth. Means of amassing this wealth included what can best be described as the payment of tributes in the form of company shares, charged to companies that invest in Eswatini. In other countries, wealth such as this accrues to state coffers. The Eswatini state has established a fairly well-kept registration database for citizens and residents, which enhances tax collection.

Together with Lesotho and South Africa, Eswatini is counted among the top-ten most unequal societies in the world. Wealth distribution is heavily skewed in favour of a limited few among the traditional and modern elites. Poverty in the rural areas is estimated at 70%, and extreme poverty is estimated at 25%.

Politically, with the exception of a limited few among the ruling group, all social groups chafe under a most pervasive oppression. This oppression has been challenged, led by various organisations, particularly during King Mswati III’s reign. The state has reacted to all of these with unrestrained brutality not only intended to punish specific individuals and organisations, but also to secure the seemingly near-total acquiescence in much of society.

Explaining the current political unrest
According to sources, origins of the current unrest lie in the kingdom’s financial crisis, which has meant, for example, that the government is unable to pay public sector wages. Politically, the unrest is a result of the oppression described above. It is not spontaneous but has been building up over the years.

Where the current unrest will lead to, is unclear. Popular demands in the current protests vary and have oscillated between the establishment of a constitutional monarchy at the most moderate, and the stepping down of the king at the most radical. As always, it is possible that for some, the payment of wages would be considered adequate and sufficient response by the king; if this is done, such groups would be happy to have things continue as they have done before the uprising.

Possibilities exist for division within groups that want moderate change. The king’s hold on power is so all-encompassing and pervasive that he has at his disposal a choice of many meaningless concessions that he can make, which some moderates might consider enough to cease their participation in the protest. For those seeking more radical change, the abdication of the king’s is unlikely; groups seeking change along those lines might differ in their methods of achieving the goal, and in the length of time they are prepared to hold out for such a reform. The longer these demands go unfulfilled, the more likely damaging divisions may appear in this group.

Exit routes to current unrest?
As a 19th century revolutionary put it many years ago, the chances for change happening in societies such as Eswatini increase tremendously when beneficiaries of the existing socio-economic system themselves begin to question such a system. That is to say, when such beneficiaries realise that the distribution of power and wealth benefiting them need to change in order for them to survive as a privileged grouping. It is a difficult proposition with serious implications, and one which cannot be avoided when its time has come.

There are a few signs of this in Eswatini that cannot be dismissed on the grounds of quantity. However, the political system remains intact, with reporting on the uprising beginning to be dominated by statements claiming that the army has restored order.

We have to hope that the people of Eswatini will achieve change and the future they want, which they have been crying for over many years. Army and police brutality must stop. The www (internet) in the 21st century is a basic human right and must be restored.  

Solidarity and condolences
The world, AU, SADC, SACU member states, and all of us must stand in solidarity with the people of Eswatini. Our condolences, thoughts, and prayers go to wives, husbands, children, friends, and relatives of those killed in this brutality.

This article was written after the anti-monarchy demonstration in June and July 2021 which saw estimated nearly 69 losing their lives. Now unrest has flared-up spearheaded by students, civil servants and transport workers.

News Archive

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

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