Treaty ratifications - A/HRC/WG.6/25/SWZ/1 General Assembly Distr.: General 8 March 2016 Origin

Ratify the International Convention for the Protection of All Persons from Enforced Disappearance¹

18. Swaziland signed the CED on 25 September 2007 but is yet to consider accession to this treaty.

Ratify the Rome Statute of the International Criminal Court²

19. Swaziland aligns itself with the decision taken by the Extraordinary Session of the Assembly of the African Union (AU) taken in Addis Ababa, Ethiopia in October 2013 that no charges shall be initiated or continued before any International Court against any serving AU Head of State or Government. Swaziland will consider acceding to the Rome Statute when article 27 of the statute is amended to allow for the immunity of a serving Head of State or Government.

Ratify the Optional Protocol to the Convention Against Torture³

20. Swaziland acceded to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 25 April 2004. Further Section 18 of the Constitution prohibits torture and inhuman or degrading treatment or punishment. Given the country’s commitment towards eradication of all forms of torture, there are ongoing efforts to take the optional protocol through the necessary steps of ratification as articulated by the Constitution in Section 238. The process entails approval of the instrument through an Act of Parliament or through a joint sitting of both chambers of parliament.

Strengthening of structures like the Commission on Human rights is aimed at improving efforts to prevent and eradicate torture.

Ratify the International Convention on Protection of the Rights of All Migrant Workers and Members of their Families⁴

21. Swaziland is yet to consider ratifying the ICRMW.

B. Thematic human rights issues

Put in place a national mechanism for the prevention of torture as set out in CAT, specifically criminalise torture and put in place effective measures to prepare and punish any violations.⁵

22. As set out in CAT, the country has invested resources to strengthen the capacity of the Commission on Human rights to build the capacity of all duty bearers with the intention of preventing torture. The Commission as mandated by the Constitution is working on capacitating key government role actors and support setting up on structures that will provide sufficient redress to victims of torture.

Specifically criminalise torture and put in place effective measures to prevent and sanction the use of torture.⁶

23. As means to effectively address torture, the country is in the process of working towards a legislation that will systematically address the prevention and response to cases of torture.

Abrogate without delay the legislative and regulatory provisions that discriminate women, and adopt new laws in accordance with the principle of gender, as set out by CEDAW.⁷

24. To illustrate the country’s commitment towards gender equality, over and above the ratification of CEDAW, the country has committed itself to a number of instruments to this effect. These include the African Charter on Human and Peoples Rights on the Rights of Women in Africa. Locally, these have been domesticated:

(a) The Deeds Registry Act was amended in 2012 to give effect to the rights of women married in community of property to own land and have it registered in their own names;

(b) The Sexual Offenses and Domestic Violence Bill seeks to address all forms of sexual violence against women and children. The Government of Swaziland is investing all necessary efforts to accelerate enactments by Parliament;

(c) The common law rule that married women had no capacity to litigate without the assistance of their husbands was declared inconsistent with the constitutional right to equality by the High Court in Sihlongonyane and others v Sihlongonyane [2013 SZHC 144].

Take further measures to eliminate discriminatory cultural practises.⁸

25. Section 28 of the Constitution protects women from being subjected to cultural practises that they are in conscience opposed to.

Develop and implement a national strategy to eliminate stigma and discrimination against people living with HIV/AIDS, and ensure that OVC’s have access to health and education services and protected from violence and abuse.⁹

26. Through the National Emergency Response Council on HIV/AIDS (NERCHA) the government of Swaziland reviewed the National Multi Sectoral strategic Framework for HIV and AIDS 2009-2014 and developed an extended National Multi Sectoral Strategic Framework 2014-2018. The framework guides the national response to HIV and AIDS.

The strategy covers issues of prevention, treatment, impact and mitigation including addressing issues of stigma and discrimination.

27. Over and above the aforementioned strategy the country has also enacted Code of

29. There has been a drastic scale up of Antiretroviral Therapy (ART) by the Ministry of Health (MoH). An increase in the number of ART sites from only 24 ART sites in 2006 to 133 by end of 2014. By the end of 2014, a total of 125,421 people on ART, with 7,906 (6%) being children under 14years. With an increase in the number of people on ART, a key priority for the MoH is to ensure that there is minimal deaths of people on ART. These figures demonstrate the survival rate of people on ART. In the past, the MoH was losing almost 60% of people within the first three months after initiating treatment (ARVs). This has improved over the years and from the figure it is worth noting that +/-3% are lost either through death, stoppage of treatment within the first six (6) months. Government continues to subsidise health care in public facilities.

30. The country enacted comprehensive protective legislation for children in 2012 (Child Protection and Welfare Act 2012). This legislation seeks to provide protection for children from abuse and to promote their welfare and best interests. Over and above this legislation, the country has a children’s policy which also provides a clear position of the policy statements that illustrate prioritisation of the protection and promotion of children’s rights, in particular vulnerable children. Under the strong government social protection program, government offers an Orphan and Vulnerable Children’s (OVC) grant which caters for vulnerable children’s education.

31. The government of Swaziland has ensured free primary education for all Swazi children as enshrined in the Constitution and the Free Primary Education Act, 2012. Even though secondary school education is still not free, the government supports the vulnerable children by paying their fees through the through the OVC grant under the Deputy Prime Minister’s portfolio.

32. According to the Multiple Indicator Cluster Survey, (MICS) 2014, the percentage of orphans and vulnerable children stands at 45.1% of all children in the country. Orphans who attend school are at 97.2% as compared to 98.6% of attendance of non-orphans.

Put in place rights training programmes for members of the judiciary and law enforcement officials, including the Police, Security forces and Correctional Officers.¹⁰ 33. Through support from Development partners, a number of duty bearers have been trained on protection of people’s rights. Over the last 2 years, Judicial officers have been trained on the how to invoke international instruments ratified by the country in particular the Convention of the Rights of the Child. The Judicial officers were equipped with skills to ensure that they can properly handle cases involving children in their courts. The trainings covered Magistrates from all the regions in the country. Other officers of the court who support the cases were also extensively trained to better understand how to handle cases involving victims of abuse and children. These training have also been offered to prosecutors for reasons of consistency.

34. Over 230 Police officers were also trained on a manual that was developed to improve their capacity in handling cases involving families and vulnerable clients. The manual which will subsequently be part of the training of all police officers has a comprehensive chapter on International Human Rights framework and the implications to the duties.

35. The Commission on Human Rights is working with the Police to have a more comprehensive training on Human Rights as part of police training. There are also ongoing efforts from the Commission to ensure that the training is more systematic and will target all the relevant stakeholders including the Army and Correctional staff.

Take concrete and immediate measures to guarantee the independence and impartiality of the judiciary.¹¹

36. Section 141 of the Constitution articulates the independence of the Judiciary in both its judicial and administrative functions, including financial administration. To this end there has been progressive steps taken towards ensuring the independence of the judiciary.

These steps include security of tenure of all judicial officers and a transparent process of appointing Judges. In 2015 vacancies in the High Court bench were advertised and candidates were interviewed in public.

37. The Judiciary has a budget separate from the Ministry responsible for the administration of justice. The judges’ remuneration is not subject to annual appropriation but is charged on the consolidated fund.

Align national legislation with the international standards to guarantee freedom of assembly and association, in particular as regards the notification of the organization of peaceful assemblies.¹²

38. The Public Order Act, 1963 which currently regulates the organization of peaceful assemblies is under review. The Government has drafted a new Public Order Bill which repeals the current Act. The Bill guarantees the freedom of peaceful assembly and expression. It also provides for amongst other things, notification and consultation in respect of public gatherings and the regulation of powers of the Police during public gatherings.

39. The Bill does away the requirement that organisers of a public meeting or public gathering have to obtain a permit from the Police. Conveners of meetings or gatherings will have to give the Police at least 7 days notice or in special circumstances not less than 48 hours where valid reasons are advanced on why the 7 days notice could not be given.

40. The notification will be followed by a consultation process between the Police, Local Authorities and the conveners or organisers. This is where logistics will be discussed and agreed upon. For example, routes to be used and the start and dispersal times of the gathering. The Police and the Local Authorities may set conditions to the conduct of a gathering where there are concerns of public order and safety.

41. The Police will only be able to prohibit a gathering where they are satisfied on reasonable grounds that the gathering will endanger public order and public safety and that no amendment, condition or arrangement can be set or made to prevent the threats. The Bill incorporates a provision for judicial review of a decision by the Police to prohibit a gathering.

42. The Public Order Bill was drafted with technical assistance from the International Labour Organisation (ILO). It has been submitted to the Attorney-General for scrutiny before it is tabled before Cabinet for consideration and approval.

43. Furthermore, the Government is in the process of amending the Suppression of Terrorism Act of 2008 to avert the hindrance on the exercise of freedom of association by workers’ organizations. The amendment seeks to exclude employee organizations from the definition of the phrase ‘terrorist group’.

44. The Government also amended the Industrial Relations Act, 2000 to allow for registration of workers and employer federations and thereby ensuring that workers and

business enjoy freedom of association as provided for under ILO Convention No. 87 concerning freedom of association and the right to organize. The amendment was effected through the promulgation of the Industrial Relations (Amendment) Act, 11 of 2014.

Workers and Employer Federations have been duly registered and are part of the social dialogue forum and are represented in all consultative fora where legislative and policy decisions relating to their socio-economic interest are taken.

45. Acting in accordance with the ILO’s recommendation to the effect that the Government of Swaziland gives the right to organize for Correctional Services employees, the Government has reviewed the law establishing the Correctional Services by, inter alia, including the right to organize for such employees in the amended Correctional Service law. A Bill to give effect to the right to organize for the employees has been tabled in Parliament and will be debated soon.

46. The Government has also tabled in Parliament a Bill titled “Public Service Bill”

which amongst other things seeks to strengthen collective bargaining in the Public Service and to improve service delivery. Similarly, this Bill was drafted in consultation with tripartite constituencies and was reviewed by the ILO before being tabled.

Prohibit corporal punishment in all settings.¹³

47. Although the country did not accept the abolishment of corporal punishment in all settings, but limited it to adults, the Child Protection and Welfare Act has abolished the use of corporal punishment as sentence in cases involving children. Over and above this provision, the Ministry of Education has rolled out a program on Positive discipline and is working on revising its policies and rules to be in line with the principles of positive discipline. The Ministry has also partnered with civil society organisations to promote the use of positive discipline in family settings. This initiative is aimed at gradually incorporating these principles in the different settings where corporal punishment has been practiced.

Take immediate steps to repeal laws which criminalise and/or restrict freedom of expression and of media, in particular the Sedition and Subversive Activities Act (1938) the Proscribed Publications Act (1968).¹⁴

48. Section 24 of the Constitution guarantees freedom of expression including freedom of the media. The constitutionality of the Sedition and Subversive Activities Act, in so far as it implicates the right to freedom of expression is pending before the courts.

49. To further promote the enjoyment of freedom of expression, free media and operationalization of independent media houses, the Government of Swaziland has enacted the Swaziland Communications Commissions Act 2013. This Act establishes a Commission whose objectives are inter alia; to regulate electronic communications, data protection in electronic communications, postal services, electronic commerce and broadcasting.

Set up commissions of inquiry for all cases of deaths in custody which take place in the national police, the army and the penitentiary services.¹⁵

50. The Inquest Act provides for an automatic inquiry where a death has occurred in the custody of the state. In light of this Act, for all the deaths that have occurred, the state has commissioned independent inquiries to those deaths.

Strengthen the institutions established to protect democracy.¹⁶

51. The Government has invested resources towards strengthening relevant institutions that seek to protect democracy in Swaziland. The independence, mandate and powers of the

Commission on Human Rights and the Elections and Boundaries Commission are expressly articulated and guaranteed by the Constitution. Government has subsequently allocated resources towards staffing and working equipment to enhance the efficiency of these institutions. Swaziland is working on compliance with the Paris principles to facilitate accreditation of the Human Rights Commission and subsequently its capacity strengthening and efficiency.

52. The Anti-Corruption Commission is a statutory body established by the Prevention of Corruption Act. The Act mandates the Commission to prevent and eradicate corruption and further guarantees and protects its independence. The government has prioritised the fight against corruption and has committed to ensuring workable budget allocation and technical capacity to ensure the commission’s efficiency and effectiveness. The improvement in the independent international rankings of the Commission is an indication of the progress that has been made towards improving efficiency.

Implement measures to prevent violence against the Lesbians Gays, Bisexual and Transgender (LGBT) community.¹⁷

53. In so far as violence against LGBT community is concerned, there has been no record or reported acts of violence.

Institute an urgent review of laws, Regulations and procedures relating to the use of force and firearms by law enforcement officials.¹⁸

54. The laws, regulations and procedures governing the use of force and firearms by law enforcement officials was reviewed and found to be consistent with international human rights norms.

55. The use of force and firearms including lethal force is governed by the Criminal Procedure And Evidence Act. The criminal procedure code permits law enforcement officers to use lethal force as measure of last resort where their lives are in danger. Non-lethal force is used where a person suspected of criminal conduct resists arrest or flees and cannot be apprehended or prevented from fleeing by means other than the use of force.

Repeal or urgently amend the Suppression of Terrorism Act of 2008 and other pieces of security legislation to bring them in line with international human rights

standards.¹⁹

56. The Suppression of Terrorism Act is currently under review. To this end the government has drafted the Suppression of Terrorism (Amendment) Bill, 2013. The purpose of the bill is to amend the definition of “terrorist act” and to provide for incidental matters. The bill is presently before Cabinet and from there it will be tabled before Parliament.

57. In addition to the legislative process there is a pending constitutional case before the High Court. In this case the definition of “terrorist act” and “terrorist group” are being challenge on the ground that they are inconsistent with the right to freedom of assembly and the right to freedom of association guaranteed by Sections 24 and 25 of the Constitution.

V. Achievements and best practices, challenges and constraints

A. Achievements and best practices

58. Since 2011 the Swaziland Government has continued to formulate and implement policies aimed at improving the quality of life of everyone in the country. These policies include amongst others.

59. Free Primary Education (FPE) Programme: This programme is designed to remove barriers and increase access to primary education for all school-going age children. It provides relevant quality education and eliminates all forms of disparities and irregularities in primary education. It is calculated to eradicate illiteracy and to equip every child with basic skills and knowledge in an endeavor to alleviate poverty. This is in line with Section 29(6) of the Constitution of Swaziland, which guarantees the right to free primary education in public schools.

60. FPE was successfully rolled out from grades 1–2 in 2010, by 2015 it was extended to grade 7 in 2015. The enrolment rate has increased from 231,555 in 2009 to 239,422 in 2012 and 247,717 in 2015. Indicators suggest that Swaziland is on track in achieving universal access to primary education specified in Millennium Development Goal 2.

Achievement of access is but one aspect of the progress, there is need to ensure that all children complete primary education. Completion rates at primary levels suggested that repetition and dropout may have still pushed some of the children out of the system. In 2006/2007 the completion rate was about 59.3 percent, it increased to 76.4% in 2012, suggesting that more children stayed on to complete primary education. This is an improvement, which implied that more children are being retained by the system.

61. FPE provides support to primary education in the form of grants, free stationery and textbooks for all primary school pupils including those with special needs. Furthermore, the Swaziland Government has invested an average of E 560.00 (US $80) capitation grant per child. What is observed is that although boys participated more efficiently in the past, girls had taken over as their net enrolment figures rose above that of boys in 2009 and have remained higher ever since. Learners with special needs also benefited from FPE initiatives

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