Legal and constitutional developments
A new Constitution came into force in February, providing qualified guarantees for civil and political rights.
The legal status of political parties remained uncertain as the King's Proclamation of 1973, under which they were banned, was not repealed. An International Labour Organization (ILO) delegation, visiting the country in June, signed an agreement with the government and "social partners" who undertook to review the impact of the Constitution on rights protected under ILO conventions and recommend repeal of non-compliant statutes. An organization attempting to register as a political party sought a High Court order to clarify its position. A ruling was pending at the end of the year. In November the National Constitutional Assembly, trade union officials and others challenged the validity of the Constitution in the High Court. The case was postponed until 2007 because of a shortage of judges.
Access to legal remedies in human rights cases was limited by the failure of government to ensure an efficient and independent judicial appointment process. By the end of 2006 there was only one permanent judge on the High Court Bench, along with three judges with temporary contracts. The constitutionality of the Judicial Services Commission, which advises the King on judicial appointments, was challenged in the High Court in October. The hearing was postponed until 2007.
The Court of Appeal was reconstituted as the Supreme Court, with two new judicial appointments.
In July the King assented to the Prevention of Corruption Act.
Human rights violations by law enforcement officials
Incidents of torture, suspicious deaths in custody, and use of excessive force by police were reported. Crime suspects as well as members of political organizations were the main victims. Impunity for human rights violations by law enforcement officials was a persistent problem.
• In March the High Court, when granting bail, ordered the government to investigate allegations of torture by 16 defendants charged with treason and other offences in connection with petrol bombings in late 2005. Allegations of suffocation torture, beatings and other ill-treatment had earlier emerged at magistrates' court hearings. Nine defendants were interrogated and allegedly tortured at one police station, Sigodveni. Four defendants also appeared in the High Court with visible injuries sustained while held at Sidwashini prison. Independent forensic medical examinations in March of some defendants confirmed that their injuries were consistent with the allegations. In October the Prime Minister established a commission of inquiry.
• In January Takhona Ngwenya was assaulted at Mbabane police station, where she had gone to make a statement about the theft of a friend's phone. She was punched and kicked all over her body, including her face, and subjected to suffocation torture with a black plastic bag so that she lost consciousness. She required medical treatment. In response to a civil claim for damages, the police denied liability.
• In July Mduduzi Motsa died in custody at Sigodveni police station. The police initially told his relatives that he had died in a motor accident but later said that he had committed suicide in his cell. The police reportedly prevented relatives from attending the official postmortem.
In a number of incidents demonstrators were subjected to excessive force by members of the police Operations Support Services Unit. In September university students attempting to deliver a petition to the Prime Minister's office in Mbabane were beaten with batons and kicked to the ground. In December supporters of the political organization, PUDEMO, were tear-gassed and baton-charged by police in Manzini. PUDEMO member Mphandlana Shongwe, who went to Manzini police station to inquire about arrested demonstrators, was beaten, kicked and knocked against a wall and required hospital treatment for his injuries.
Violations of the right to fair trial
The 16 defendants charged with treason and other offences had not been brought to trial by the end of the year. The High Court had ordered the accused to be released on bail in March on the grounds that the prosecution had not presented a prima facie case against any of them. In November the state's appeal on a technicality against the bail ruling was postponed until 2007.
Children's access to education was limited by the impact of poverty, HIV/AIDS, sexual violence and discrimination on the basis of gender and disability. The number of children orphaned by AIDS was estimated at 70,000 and 10 to 15 per cent of households were headed by children, mostly by girls who were vulnerable to multiple forms of abuse.
Additional training and capacity for the police Domestic Violence, Child Protection and Sexual Offences Unit (DV Unit), the establishment of child friendly interview facilities and the development of Community Child Protection Committees at local level began to improve children's access to justice in cases of abuse.
In September the UN Committee on the Rights of the Child (CRC) expressed concern at the lack of a "systematic and comprehensive" legislative review to bring domestic legislation into line with the Convention on the Rights of the Child. The CRC was also concerned at the lack of protection under the law against early and forced marriage, the position of adolescent girls suffering marginalization and gender stereotyping and their low school completion rates. The CRC criticized the persistence of corporal punishment in the family and in schools, and the provision in the Constitution which permitted "moderate chastisement" of children. The courts continued to impose corporal punishment on under-18-year-old boys.
The government significantly increased its national budget allocation for the education of orphans and vulnerable children, but continuing delays in payments to schools jeopardized the children's access to education. In November the Swaziland National Association of Teachers applied to the High Court for an order to compel the government to make the payments. The case was postponed until 2007 because of the shortage of judges.
The new Constitution provided women for the first time with the right to equal treatment with men, including equal opportunities in the political, economic and social spheres, and provided some protection for women from being compelled to comply with customs against their will.
Women and girls continued to face discrimination under both the civil and customary legal systems. Incidents of forced or early marriage under the practices known as Kutekwa and Kwendziswa continued to be reported.
The Commissioner of Police reported a 15 per cent increase in cases of rape and abuses of women and children. Survivors of sexual violence, particularly in rural areas, faced continuing obstacles to access to justice and emergency health care due to the lack of co-ordinated and adequately resourced services. The DV Unit took steps to improve police investigation skills and data collection.
The draft Sexual Offences and Domestic Violence Bill, intended to improve the legal framework for investigating and prosecuting crimes of rape and other forms of sexual violence, was still with the Ministry of Justice and Constitutional Affairs at the end of the year.
People living with HIV/AIDS
In December UNAIDS estimated that 33 per cent of adults were living with HIV in 2005. The government reported that among pregnant women attending antenatal clinics there was a slight decline since 2004 in prevalence rates to 39.2 per cent. The prevalence rate for the most affected group, 25 to 29 years, declined from 56 to 48 per cent.
In February some 15,000 of the estimated 36,500 people requiring anti-retroviral therapy (ART) were reported to be receiving it free of charge through public facilities. The Swaziland National AIDS Program took steps to increase access to post-exposure prophylaxis treatment for rape survivors and to prevent transmission of HIV from mother to child. The number of HIV Testing and Counselling Centres increased to 23 from only three in 2002. In June the government released the Second National Multisectoral HIV and AIDS Strategic Plan for prevention and treatment.
In October the World Food Programme expressed concern that patients were abandoning ART. Contributing factors included food shortages, the scarcity and cost of public transport systems, and the cost of other necessary medication for opportunistic infections and side-effects of ART. Organizations of people living with HIV and AIDS called for official structures to work more closely with them in addressing the causes and consequences of the epidemic.
There were no executions and no new death sentences were imposed by the High Court. The new Constitution retained the death penalty but it was no longer a mandatory punishment for certain crimes.
AI country reports/visits
• Swaziland: Persistent failure to call police to account (AI Index: AFR 55/001/2006)
• Swaziland: Memorandum to the Government of Swaziland on the Sexual Offences and Domestic Violence Bill (AI Index: AFR 55/003/2006)
An AI delegation visiting in April held high-level government meetings and consultations with a range of medical, legal and civil society organizations on human rights concerns. It co-hosted with local non-governmental organizations a seminar on improving access to justice and health care for survivors of sexual violence.