Human Rights Committee
Concluding observations on Swaziland in the absence of a report *
1.In the absence of a report by the State party, the Human Rights Committee considered the situation of civil and political rights under the International Covenant on Civil and Political Rights in Swaziland at its 3382nd and 3383rd meetings (CCPR/C/SR.3382 and CCPR/C/SR.3383), held in a public session on 7 and 10 July 2017. In accordance with rule 70, paragraph 1, of the Committee’s rules of procedure, the failure of a State party to submit its report under article 40 of the Covenant may lead to an examination in a public session of the measures taken by the State party to give effect to the rights recognized in the Covenant and to adopt concluding observations.
2.At its 3405th meeting, held on 25 July 2017, the Human Rights Committee adopted the following concluding observations.
A.Introduction
3.The Covenant came into force for Swaziland on 26 March 2004. The State party was under an obligation to submit its initial report by 26 April 2005, under article 40 (1) (a) of the Covenant. The Committee regrets that the State party has failed to honour its reporting obligations under article 40 of the Covenant and that, despite numerous reminders, the State party has not submitted the initial report.
4.The Committee nevertheless expresses appreciation for the opportunity to engage in a constructive dialogue with the State party’s high-level delegation on the implementation of the Covenant. The Committee is grateful to the State party for its written replies (CCPR/C/SWZ/Q/1/Add.1) to the list of issues (CCPR/C/SWZ/Q/1), which were supplemented by oral responses by the delegation.
5.In the light of the detailed replies to the Committee’s list of issues (CCPR/C/SWZ/Q/1/Add.1)which the State party submitted in writing and the constructive dialogue that the Committee had with a high-level delegation of the State party, the Committee considers the written replies as the initial report of the State party and requests that the State party submit a common core document in order to facilitate future discussions.
B.Positive aspects
6.The Committee welcomes the following legislative and institutional measures taken by the State party:
(a)The enactment of the Constitution, in 2005;
(b) The establishment of the Commission on Human Rights and Public Administration, in 2009;
(c)The enactment of the Children’s Protection and Welfare Act, in 2012;
(d)The enactment of the People Trafficking and People Smuggling (Prohibition) Act, in 2009;
(e)The amendment of the Deeds Registry Act, in 2012;
(f)The enactment of the Prevention of Corruption Act, in 2006.
7.The Committee also welcomes the ratification of, or accession to, the following international instruments by the State party:
(a)The Convention on the Rights of Persons with Disabilities and its Optional Protocol, on 24 September 2012;
(b)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 24 September 2012.
C.Principal matters of concern and recommendations
Status of the Covenant under domestic law
8.While noting that treaties do not automatically have the force of law in the State party, the Committee regrets that the Covenant has not yet been incorporated into domestic law and can therefore not be invoked directly before national courts. The Committee is also concerned that relevant stakeholders lack sufficient knowledge of the Covenant. While the Committee welcomes the State party’s intention to ratify the Optional Protocol, it regrets that it could not provide a timeline for it (art. 2).
9. The State party should ensure that all provisions of the Covenant are given full effect in domestic law and redouble its efforts to raise awareness about the Covenant among judges, lawyers, prosecutors and the public at large. The Committee invites the State party to proceed to the ratification of the Optional Protocol without further delay.
Harmonization of domestic laws
10.While noting the delegation’s explanation that both customary and common law are subject to the authority of the Constitution and that the courts apply the set of laws that “best gives effect to the rights set forth in the Constitution”, the Committee remains concerned that the presence of several conflicting sets of laws impedes the efficient implementation of the provisions of the Constitution. It is also concerned about reports that courts do not subject customary law to the Constitution in practice (art. 2).
11. Recalling its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Committee reminds the State party of its obligation under article 2 (2) of the Covenant to ensure that its domestic law, and in particular its organic laws, are consistent with the provisions of the Covenant. The State party should take measures, by establishing a law reform commission or otherwise, to systematically harmonize customary law and common law with the Constitution and ensure that they are in line with the provisions of the Covenant. The State party should also ensure that judges, prosecutors and lawyers across the country, including in traditional courts, are trained with regard to the primacy of the Constitution.
Access to remedies
12.The Committee is concerned about the immunities from the Constitution and judicial oversight enjoyed by, inter alia, the monarchy and chieftaincies. The Committee is also concerned about reports that persons who have been forcibly evicted, in particular from land vested in trust for the Swazi nation, have not had access to prompt and adequate compensation, in spite of the constitutional guarantees in place.
13. The State party should ensure that the Constitution is applicable and effective remedies are available with respect to all persons within its jurisdiction. It should also ensure that persons evicted from non-registered land or land vested in trust for the Swazi nation have access to alternative land or prompt and adequate compensation.
Commission on Human Rights and Public Administration
14.While the Committee takes note of the delegation’s explanation that a secretariat has been set up for the functioning of the Commission on Human Rights and Public Administration and that some cases have already been reported to the Commission, the Committee regrets that the enabling legislation has not yet been adopted (art. 2).
15. The State party should adopt legislation that allows the Commission on Human Rights and Public Administration to legally undertake activities as a national human rights institution in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). The State party should ensure that the Commission has sufficient independence and human and financial resources to fulfil its mandate, that an effective complaints mechanism is established, and that cases are promptly investigated and resolved by the Commission, with full reparation to victims.
Public emergencies and the 1973 King’s Proclamation
16.The Committee is concerned that some of the grounds for which a state of emergency can be declared under article 36 of the Constitution are not consistent with article 4 of the Covenant, as they do not necessarily satisfy the standard of threatening the life of the nation. It is also concerned that the constitutional rights indicated as non-derogable do not cover all the rights listed in article 4 (2) of the Covenant. While taking note of the explanation provided by the delegation that the 2005 Constitution replaced the 1973 King’s Proclamation and that the proclamation is thus no longer in force, the Committee is concerned that some confusion regarding the proclamation’s validity prevails, as it has not officially been repealed. The Committee is further concerned at reports that the 1973 Kings’s Proclamation has been used by law enforcement officers to supress political opponents (art. 4).
17. The State party should ensure in law and in practice that no derogation from Covenant rights can lawfully be declared except in the strict circumstances provided for in article 4 of the Covenant, and that the Constitution recognizes all the rights from which no derogation can be made. The State party should formally repeal the 1973 King ’ s Proclamation and ensure that it is not used as a basis for suppressing political opponents.
Discrimination and violence on the basis of sexual orientation and gender identity
18.The Committee is concerned that discrimination on the basis of sexual orientation and gender identity is not clearly prohibited under the Constitution, or in the State party’s domestic laws. It is also concerned at reports that reveal that lesbian, gay, bisexual, transgender and intersex persons frequently face discrimination, particularly in accessing adequate housing and employment. It is further concerned about reports of violence against lesbian, gay, bisexual, transgender and intersex persons, including the murder of two individuals directly linked to their sexual orientation and the rape of a gay man in detention. While noting the State party’s position that the common law criminalization of same-sex relations between men (sodomy) is not enforced in practice, the Committee is concerned at the State party’s current intention to retain the law, and at the law’s continued discriminatory effect on lesbian, gay, bisexual, transgender and intersex persons (arts. 2, 6, 7, 17 and 26).
19. The State party should revise its laws to clearly prohibit discrimination on the basis of sexual orientation and gender identity, in all contexts, and take the measures necessary to ensure that such persons can fully enjoy all the human rights enshrined in the Covenant. It should also:
(a) Vigorously combat stereotypes and negative attitudes towards persons on the basis of their sexual orientation or gender identity;
(b) Train and sensitize police officers, prosecutors and members of the judiciary to identify discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons;
(c) Adopt legislation explicitly prohibiting hate crimes against lesbian, gay, bisexual, transgender and intersex persons;
(d) Adopt robust measures to effectively prevent acts of discrimination and violence against such persons and ensure that all acts of violence against them are effectively investigated, perpetrators are brought to justice and punished with appropriate sanctions and victims are compensated. It should also collect comprehensive data on cases of violence against persons on the basis of their sexual orientation or gender identity;
(e) Criminalize the rape of men and repeal the common law crime of sodomy.
Discrimination against persons living with HIV/AIDS
20.While acknowledging the considerable efforts made by the State party to promote and protect the life and health of persons living with HIV/AIDS, the Committee remains concerned at the continued high number of infections in the State party and the persistence of stigma and discrimination against such persons. The Committee is also concerned at the absence of laws prohibiting discrimination on the basis of HIV/AIDS (arts. 2, 6 and 26).
21. The State party should:
(a) Continue and step up intervention to address the needs of key populations, in particular women, youth, sex workers and the lesbian, gay, bisexual, transgender and intersex community, including persons in rural areas;
(b) Redouble its efforts to combat the high level of HIV/AIDS-related stigma and discrimination among the general population;
(c) Ensure that discrimination against persons with HIV/AIDS is legally prohibited in all contexts and that such laws are enforced effectively in practice.
Discrimination against persons with albinism
22.The Committee is concerned at reports of discrimination and violence against persons with albinism. It is also concerned that the State party has yet to adopt effective strategies to ensure that persons with albinism are afforded equal protection in law and in practice (arts. 2, 6 and 26).
23. The State party should take steps to ensure that persons with albinism are protected, in law and in practice, against all forms of violence and discrimination.
Equality between men and women
24.The Committee is concerned that despite the constitutional provisions for the equal treatment of women and men, several domestic laws contain discriminatory provisions towards women, such as the Marriage Act, which assigns the woman a disadvantaged status in relation to her husband, and chapter 4 of the Constitution, which differentiates between men and women in the acquisition and transfer of Swazi citizenship. The Committee is also concerned that customary law and practices perpetuate inequality between men and women, in particular with regard to inheritance and property rights, and that cultural practices such as polygamy, forced marriage and bride inheritance continue to exist. While taking note of the provision in section 28 (3) of the Constitution, the Committee is concerned that it insufficiently protects women’s rights under the Covenant by placing an inappropriate burden on the woman and that its practical implementation, including access to redress, is ineffective. The Committee is also concerned about the lack of equal representation of women in the public and private sectors, particularly in decision-making positions, and about the lack of specific information on the representation of women in the private sector (arts. 2, 3, 7 and 26).
25. The State party should, as a matter of urgency:
(a) Review its Constitution and domestic laws, including customary laws, on the status of women and repeal or amend all provisions that are inconsistent with the Covenant, including those relating to marriage, inheritance, property rights and transfer of citizenship;
(b) Step up its efforts to combat discriminatory customary practices, including by ensuring the proper administration of estates, and increasing awareness-raising measures in rural areas, including among men and traditional leaders;
(c) Combat the practices of polygamy, forced marriage and bride inheritance, with a view to securing their abolition;
(d) T ak e all measures necessary to promote the equal participation of women in both the public and private sector s , in decision-making positions, including by adopting, if necessary, temporary special measures and collecting comprehensive data on women ’ s representation in both the public and private sectors.
Violence against women
26.The Committee is concerned at reports of widespread violence against women and children, in particular pervasive sexual violence, including rape and marital rape, and that relevant officials lack specific training on gender-based violence. It is also concerned at the lack of adequate legislation to protect women against violence and notes in this regard the delay in enacting the sexual offences and domestic violence bill. It is further concerned that the national strategy and action plan to end violence (2013-2018) has not yet been implemented (arts. 3, 6, 7 and 24).
27. The State party should:
(a) Promptly adopt legislation to effectively criminalize and combat sexual offences and domestic violence;
(b) Provide relevant actors in the police, public prosecution and judiciary with training on sexual and gender-based violence and on evidence-gathering for such cases;
(c) Strengthen its efforts to raise the awareness of the wider public to the adverse impact of sexual and gender-based violence and encourage reporting, inter alia by systematically informing women and children of their rights and of the existing legal avenues through which they can receive protection;
(d) Ensure that all cases of sexual and gender-based violence are thoroughly investigated, that perpetrators are prosecuted and, if convicted, are punished with appropriate sanctions, and that victims receive full reparation;
(e) Ensure that victims have access to effective remedies and means of protection, including to an adequate number of psychological and educational centres, and that other support services, such as accommodation or shelters, are available in all parts of the country.
Voluntary termination of pregnancy, maternal mortality and reproductive rights
28.The Committee is concerned at the significant increase in the maternal mortality rate and the high rate of maternal mortality resulting from unsafe abortions. The Committee is also concerned about the lack of clarity regarding the circumstances in which voluntary termination of pregnancy is legally available, and that the State party has not yet adopted the legislation as provided under article 15 of the Constitution. The Committee is further concerned about reports that cumbersome procedural requirements, including requirements of court orders, and refusal to perform abortion on grounds of conscientious objection, have obstructed access to women or girls seeking lawful abortions. It is also concerned by the high teenage pregnancy rate (arts. 3, 6 and 17).
29. The State party should:
(a) Adopt the legislation provided in article 15 of the Constitution and eliminate legal and procedural obstacles impeding access to voluntary termination of pregnancy to ensure that women are not prompted to resort to clandestine abortions that put their lives and health at risk;
(b) Adopt clear protocols for service providers to ensure meaningful access to legal abortion;
(c) Ensure access for men, women, boys and girls to comprehensive reproductive health education and services throughout the country, particularly in rural areas, including access to affordable contraceptives, and increase awareness-raising programmes on the importance of using contraceptives and on sexual and reproductive rights and choices;
(d) Collect disaggregated data on maternal mortality, including risks to women resulting from unsafe abortions.
Right to life and use of force by law enforcement
30.The Committee is concerned at reports of excessive use of lethal force and arbitrary killings by law enforcement officers and game wardens in the State party. In particular, the Committee is concerned by the permissive conditions in article 41 of the Criminal Procedure and Evidence Act and at provisions in the Public Order Act which leave it to the discretion of the individual police officer to decide whether it is expedient to use force. The Committee is also concerned at reports that proposed amendments to the Game Act may give game rangers immunity from prosecution for using force against persons suspected of poaching. While welcoming the State party’s moratorium on the death penalty and its stated intention to ratify the Second Optional Protocol to the Covenant, the Committee is concerned that the State party has not set a timeline for doing so (arts. 6 and 7).
31. The State party should amend its national legislation governing the use of force by police officers and game rangers to ensure effective protection of the right to life in line with article 6 of the Covenant. The State party should also take measures to ensure that the law and the practice are in accordance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The State party should consider ratif ying the S econd Optional Protocol to the Covenant without delay .
Persons deprived of liberty and deaths in custody
32.The Committee notes with concern reports that detainees do not always have access to lawyers and that their families are not properly informed of their detention. It also notes that while the Constitution prohibits torture, it is not specifically criminalized and there is no independent body mandated to investigate cases of complaints of torture and ill-treatment by law enforcement officials. The Committee is concerned about reports of numerous deaths in custody. It is also concerned by the delays in the investigations into the deaths of Luciano Reginaldo Zavale on 12 June 2015 and of Sipho Jele in May 2010. The Committee is further concerned that despite the State party’s commitment to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, no progress has been made thus far (arts. 2, 6, 7, 9 and 10).
33. The State party should:
(a) Ensure that the basic legal safeguards on the liberty and security of the person provided in the Covenant for persons deprived of liberty, including access to counsel and humane treatment, are guaranteed without exceptions upon being detained;
(b) Amend its legislation to include a definition of torture that is fully in line with article 7 of the Covenant and internationally established norms, preferably by codifying torture as an independent crime;
(c) Establish a system for the regular and independent monitoring of all places of detention, as well as a confidential mechanism for receiving and processing complaints lodged by persons deprived of their liberty, and in the light of the willingness of the State party to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, speed up the preparations for doing so;
(d) Ensure that law enforcement personnel receive training on torture and ill-treatment by incorporating the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) in all training programmes for law enforcement officials;
(e) Ensure that all deaths in custody are promptly investigated, that perpetrators are prosecuted and punished with appropriate sanctions and that full reparation is provided to victims. It should also maintain data on the number of deaths in custody, the number of resulting investigations and prosecutions and any reparation made to victims.
Prison conditions
34.The Committee is concerned at reports of poor prison conditions, that prisoners do not always receive adequate medical care and that the regulations governing prison conditions are out of date (arts. 2, 6 and 7).
35. The State party should improve detention conditions in all premises and bring the regulations governing prison conditions into line with international standards including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
Counter-terrorism
36.The Committee is concerned at reports that counter-terrorism laws have been used to counter political opposition and social protests instead of addressing legitimate terrorism threats. It is also concerned that the definition of a terrorist act in the Suppression of Terrorism Act is overbroad and that neither that law nor the Sedition and Subversive Activities Act provide access to effective legal remedies and procedural safeguards (arts. 9, 14, 19 and 21).
37. The State party should ensure that its counter-terrorism legislation and practices are in full conformity with the Covenant, including the principles of freedom of expression and non-discrimination. In particular, the State party should ensure that acts of terrorism are defined in accordance with international standards, including restricting the definition to cases involving acts of violence, and that effective remedies and procedural safeguards are in place against improper application of counter-terrorism laws.
Independence and impartiality of the judiciary and traditional courts
38.The Committee is concerned at reports of political interference in the judiciary by the executive and that recent measures taken by the State party are insufficient to guarantee the independence and impartiality of the judiciary. The Committee is also concerned that the traditional justice system does not meet the fair trial standards provided under the Covenant and that its jurisdiction is not sufficiently limited (art. 14).
39. The State party should put in place specific constitutional guarantees to protect judges and prosecutors from any form of political influence in their decision-making and effectively ensure that they are free of pressure and interference in the performance of their work. The State party should align the traditional justice system with fair trial standards under the Covenant. It should also ensure that the jurisdiction of traditional courts is limited to minor civil and criminal matters and that their judgments may be validated by State courts.
Pretrial detention and legal aid
40.While welcoming the measures taken by the State party to reduce long pretrial detention periods, the Committee remains concerned by the situation. While taking note of the State party’s explanation given by the delegation that pro Deo services are provided in cases that carry the death penalty or life imprisonment, the Committee remains concerned that the legal aid policy has not yet been implemented and that the bill on legal aid has not been passed into law (art. 14).
41. Consistent with the Committee ’ s general comment No. 35 (2014) on liberty and security of person, paragraph 38, the State party should continue its efforts to reduce lengthy periods of pretrial detention, including by adopting provisions to ensure that the trial detention process is not abused, and avoiding unnecessary arrests and delays between the police and prosecutor ’ s office. The State party should ensure that bail is generally available and is not set at an excessive level. The State party should ensure that free legal aid assistance is available in any case where the interests of justice so require.
Trafficking in persons and forced labour
42.The Committee is concerned at reports that adults and children have been recruited by chiefs into forced labour and that children, orphans in particular, have been forced into sex work and domestic servitude. While welcoming the adoption of the People Trafficking and People Smuggling (Prohibition) Act, the Committee is concerned that insufficient resources have been allocated to the task force against human trafficking to ensure its efficient implementation. It is also concerned that the implementation of the victim identification guidelines has been delayed (art. 8).
43. The State party should:
(a) Strengthen the task force against human trafficking by providing it with adequate resources and ensure that cases of human trafficking are effectively identified, investigated, prosecuted and punished, and that victims receive appropriate protection and reparation;
(b) Expedite the implementation of the victim identification guidelines;
(c) Broaden the implementation of measures to assist the social integration of victims and to provide access to quality health-care and counselling services throughout the State party;
(d) Take the additional steps necessary to fully eliminate forced labour and child labour.
Freedom of expression, assembly and association
44.The Committee is concerned at reports of attacks on journalists, political opponents, human rights defenders and trade unionists, and reports that proposed amendments to the Public Order Act will severely restrict freedom of expression, assembly and association, impose cumbersome requirements for obtaining permits before holding a meeting or hosting an activity and give law enforcement officers discretionary powers to interrupt meetings. It is also concerned at reports that a monitor should be present during public meetings. The Committee is concerned at reports that trade union leaders have been kept in preventive detention to prevent them from engaging in legitimate trade union activities (arts. 19, 21 and 22).
45. The State party should prevent and redress attacks on human rights defenders and other social activists and promptly adopt legislation to ensure that any restriction on the exercise of freedom of expression, assembly and association complies with the strict requirements in the Covenant. The State party should take all measures necessary to protect the rights to freedom of expression, association and peaceful assembly and ensure that police officials, judges and prosecutors receive adequate training regarding such protection.
Juvenile justice
46.The Committee is concerned at the lack of a specific judicial framework for minors, at the low age of criminal responsibility for children and at the detention of adults and children together on the same premises (arts. 9, 10, 14 and 24).
47. The State party should:
(a) Take measures to establish juvenile chambers with trained judges to ensure that juveniles are treated in a manner commensurate with their age, specific needs and vulnerability;
(b) Raise the minimum age of criminal responsibility in accordance with international standards and ensure the full implementation of international standards for juvenile justice;
(c) Ensure that children are kept separate from adults in detention.
Birth registration
48.While noting measures taken by the State party to ensure that all births are registered, the Committee remains concerned by the large number of births that remain unregistered (arts. 16 and 24).
49. The State party should expedite its efforts to register all births on its territory and continue to mount public and family awareness-raising campaigns concerning birth registration, particularly in rural areas.
Corporal punishment
50.While noting that the Children’s Protection and Welfare Act abolished the use of corporal punishment as a judicial sentence for children, the Committee remains concerned that corporal punishment is still lawful in the home, alternative care, day care, schools and penal institutions (arts. 7 and 24).
51. The State party should take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment, in all settings. It should encourage non-violent forms of discipline as alternatives to corporal punishment, and should conduct public information campaigns to raise awareness about its harmful effects.
Participation in public affairs, and corruption
52.The Committee is concerned that the concentration of power in the King, which, inter alia, gives him excessive powers of appointment over the Government, Parliament and the judiciary, is incompatible with article 25 of the Covenant. It is also concerned that the elections held in the State party in 2013 did not comply with international standards for free and fair elections, and that political parties as such are unable to register, contest elections, field candidates or otherwise participate in the formation of a Government. It is further concerned that neither the Elections and Boundaries Commission nor the Anti-Corruption Commission are adequately independent, impartial or effective (arts. 19, 21, 22 and 25).
53. The State party should bring its constitutional framework into compliance with the Covenant, including with article 25, inter alia by:
(a) Fostering a culture of political pluralism, ensuring freedom of genuine and pluralistic political debate, and allowing the registration of opposition political parties, including to contest elections, field candidates and participate in the formation of government;
(b) Undertaking a constitutional reform process with the objective of devolving power to democratically elected branches of government, and guaranteeing the right of every citizen t o take part in the conduct of public affairs and have access to public service on general terms of equality;
(c) Guaranteeing free and fair elections;
(d) Ensuring the independence and effectiveness of the bodies in charge of elections and anti-corruption .
D.Dissemination and follow-up
54.The State party should widely disseminate the Covenant, the written replies to the Committee’s list of issues and the present concluding observations with a view to raising awareness of the rights enshrined in the Covenant among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country, and the general public. The State party should ensure that the replies to the list of issues and the present concluding observations are translated into the other official language of the State party.
55.In accordance with rule 71, paragraph 5, of the Committee’s rules of procedure, the State party is requested to provide, within one year of the adoption of the present concluding observations, information on the implementation of the recommendations made by the Committee in paragraphs 27 (violence against women), 45 (freedom of expression, assembly and association) and 53 (participation in public affairs and corruption) above.
56.The Committee requests the State party to submit its next periodic report by 28 July 2021 and to include in that report information on the implementation of the recommendations made in the present concluding observations. The Committee also requests the State party, in preparing the report, to broadly consult civil society and non-governmental organizations operating in the country. In accordance with General Assembly resolution 68/268, the word limit for the report is 21,200 words.