–Laura-Stella Enonchong, University of Warwick, African Network of Constitutional Lawyers
On 03 October 2012, the House of Assembly of the Kingdom of Swaziland, which has often been regarded as an enfeebled institution, passed a historic vote of no confidence in the Cabinet. According to the Swazi Constitution (arts. 68(5) & 134(5)(b) the Prime Minister (PM) and Cabinet were to resign within three days or be dissolved by the King. However, nearly two weeks after that historic vote, the Cabinet had not resigned and the King did not dissolve it. The PM and deputy PM affirmed that Cabinet would continue with government ‘business as usual’. Faced with the government’s reluctance to enforce the Constitution and a near paralysis of governmental institutions, the House of Assembly on 15 October passed another vote to reverse its earlier vote of no confidence.
The vote of no confidence was triggered by the government’s implementation of a decision by the arbitration tribunal of the ICC against the Swazi Posts and Telecommunications Corporation (SPTC). The genesis of that decision in brief was a complaint filed by Swazi MTN, a mobile telecommunications company, for SPTC’s breach of some terms of a Joint Venture Agreement (JVA) between the two institutions. According to the ICC decision, SPTC was to terminate with immediate effect its Fixedfone mobile telephone and some related services. Accordingly, the government on 01 October terminated the mobile phone service offered by SPTC, prompting public outrage as a large section of the population were left without that service.
In reaction to the vote of no confidence, the Prime Minister in a press statement on 03 October stated that the House was challenging the jurisdiction of the judiciary and the executive. He stated further that the motion was null and void and parliament seemed to be compelling the Cabinet to defy the rule of law. The Prime Minister called on the public to remain calm and be reassured that Cabinet would continue to be in full control of His Majesty’s government. The PM and Cabinet were fiercely criticised by the House and the public for disregarding the rule of law and creating a constitutional crisis.
Resolving the Constitutional Crisis: Was King Mswati III Compelled to Act
In calling into question Cabinet’s responsibility for the SPTC debacle, the House acted pursuant to the Constitution (art. 69 (2)) which provides that Cabinet shall be collectively responsible to parliament for any advice given to the King under the general authority of Cabinet or for all things done by a minister in the execution of the office of the Minister.
What seemed somewhat ambiguous was the expected outcome of the vote of no confidence. Certainly the House took that vote as a prelude to ousting Cabinet. The population also expected the outcome to be Cabinet’s resignation. The constitutional position (art. 68(5)) is that where a resolution of no confidence is passed in the Cabinet by the Assembly, the King shall dissolve the Cabinet. So it seemed that resolution of the gridlock was to be provided by King Mswati III. Although that provision makes clear what should happen, ambiguity is created by art. 134(5) (b) which states that ‘where the House passes a resolution of no confidence in the Government of Swaziland and the Prime Minister does not within three days after that resolution resign, the King may dissolve Parliament or Cabinet’ (emphasis added).
A possible interpretation of the latter provision is that as opposed to art. 68(5), it does not absolutely require the dissolution of Cabinet. It envisages the dissolution of Cabinet or Parliament. Another interpretation of art. 134(5)(b) is that it does not compel the King to act. It applies the discretionary may rather than the mandatory ‘shall’ contained in art. 68(5). Both interpretations however negate the very essence of art. 68(5) by virtue of which parliament can exercise its oversight function on the executive. Why would parliament be vested with power to pass a motion of no confidence in the Cabinet if nothing was to become of it? If it is correct to say that the King was not compelled to act, then it may partly explain his inaction since the vote of no confidence was passed.
It is disconcerting that in the event of a constitutional crisis such as has been witnessed in the last couple of weeks, the King has the option to dissolve parliament rather than the Cabinet only. This further demonstrates the enfeebled position of parliament. Did apprehension of that possibility contribute to the reversal of the earlier vote by the House? Some MPs seemed anxious to return to ‘business as usual’ arguing that the population was negatively affected by the impasse. Additionally, at the time, it seemed the most expedient option to resolve the constitutional crisis.
Has the Constitutional Crisis been Resolved?
It is not clear how far the reversal will resolve the constitutional crisis. A number of possibilities can be envisaged. On the one hand, it is possible that the relevant governmental institutions will return to business as usual. There is also the possibility, (as it currently displayed in parliament) that some MPs are disgruntled with their colleagues for reversing the earlier vote. There are also questions hinging on the legality of the reversal. Even some who voted in favour of the reversal were still convinced that Cabinet should have resigned. How then can an amicable working relationship be envisaged? The Times of Swaziland is already reporting signs of discordance between Ministers and MPs. Perhaps we are yet to see the end of the Swazi debacle.
The Reputation of Parliament
Undoubtedly the House of Assembly has suffered a serious dent to its credibility. Although it had a reputation as an enfeebled institution, in the eyes of the public it appeared to be asserting its authority in the constitutional system by passing the vote of no confidence. In failing to enforce that authority it has endorsed its position as an enfeebled institution which the public would hesitate to support- after all it gave them false expectations of better governance. Although it may be argued by some that the passing of a vote of no confidence can send a message to the executive that the House can be assertive, the failure to secure the desired outcome of dissolving Cabinet only makes it clearer that the House’s authority is not effective in practice.
Winile Masinga, ‘MPs now have doubts if Cabinet will go’ (12 October 2012) <http://www.observer.org.sz/index.php?news=44074> accessed 12 October 2012.