SWAZILAND HIGH COURT
Bhembe Lucky Nhlanhla v Rex Crim Case No 75/2002
Gwebu George and ano v Rex Crim Case No 11/2002
17th September 2002
There are two applications for bail before us. They have this in common in that the applicants are charged with offences in respect of which Decree No 3 of 2001 provides that persons so charged may not be admitted to bail. The relevant section reads
Proclamation of 12th April, 1973
In exercise of the powers vested in me by the King's Proclamation to the Nation, 1973, I, MSWATI III, THE KING OF SWAZILAND hereby issue the following Decree -
1. This Decree may be cited as decree No. 3 of 2001.
Laws that have a constitutional bearing
2. (1) All Orders in-Council and Acts of Parliament that would otherwise be invalid on the sole ground that they are inconsistent with the Proclamation to the Nation of 12th April 1973 are hereby validated to that extent, unless repealed or amended by this Decree or any other law.
(2) Notwithstanding any section 104 of the 1968 Constitution (Repealed with savings) and/or any other law, the Non-Bailable Offences Order No.14 of 1993 (as amended) is hereby reinstated and/or validated.
It will be remembered that the Court of Appeal, in Professor Dlamini v The King (Appeal Case No 41/2000) had declared the Non â€“Bailable Offences Order No. 14 of 1993 unconstitutional. The executive reacted to this by swiftly procuring the promulgation of Decree No 2 of 2001 which purported not only to validate or reenact the Order but to make other far reaching constitutional changes The section dealing with the matter presently under examination read
12. Notwithstanding any provision of any law, a court shall refuse to grant bail to any person charged with -
(iii) armed robbery;
(iv) contravention of section 11(8) of the Arms and ammunition Act No. 24 of 1964; (arms of war only)
(v) contravention of section 8 of the Game Act No. 51 of 1953;
(vi) contravention of section 12 of the Pharmacy Act No. 38 of 1929;
(vii) contravention of section 6 of the Public Order Act of 1963;
(viii) contravention of section 3 (I) of the Theft of the Motor Vehicles Act, 1991;
(ix) contravention of sections 4, 10, 11, 12, 13, 16 and 17 of the Public Order Act No. 17 of 1963;
(x) high treason;
(xi) contravention of sections 4 and 5 of the Sedition and Subversive Activities Act No. 46 of 1938; or
(xii) any offence the Court may deem fit to refuse bail.
This section together with the remainder of Decree No 2 were repealed by Decree No 3.
In issuing both Decree No. 2 of 2001, and Decree No. 3 of 2001 His Majesty, The King, declared that he was exercising powers vested in him â€œby the King's Proclamation to the Nation, 1973â€. No mention is made of any amendment or other subsequent enactment declaration or decree where the power is to be found. It is the contention of the Applicants that, that instrument, namely the Proclamation to the Nation 1973, is not only itself constitutionally invalid, but also does not itself, read alone or with subsequent and decrees, confer upon His Majesty such powers in terms of which he purported to act. The argument is that if there was no power vested in the King to abrogate the 1968 Constitution by proclamation decree or otherwise, the power to legislate by decree could not later be assumed or conferred by later instrument.
All the provisions of Decree No 2, including that quoted provoked so great an outcry, and adverse criticism, that Decree No 3 was Gazetted, repealing the earlier Decree, but again providing that some crimes were to be non-bailable..This experience has raised questions as to whether legislation by decree is consistent with constitutional democracy and whether the power to legislate should not be confined as it was in the 1968 Constitution, to the King in Parliament. The committee established for this purpose will consider these questions in the process of drafting the new constitution
While in Decree No 2 no mention is made of the Non Bailable Offences order, its provisions are largely enacted afresh, Decree No 3 provides for the validation of the earlier order which had been declared unconstitutional.
The applications have this in common, that in both cases, but for the provisions of the Decree, the circumstances alleged would persuade the court to admit the applicants to bail. There is nothing to suggest that they or either of them, who are both Swazi citizens, would abscond and not stand trial. Furthermore there is little to suggest that either of them would repeat the commission of the offence with which they have been charged if not in custody while awaiting trial.. It is not suggested that their being at liberty would constitute a public danger. So too, is there nothing to substantiate any perception of danger that they would interfere with crown witnesses. Generally the interests of justice would best be served if the Applicants were admitted to bail on appropriate conditions.
The applications therefore raise the question, as appears from the terms of the relief sought in the notices of motion, whether the decree, Decree No. 3 is constitutionally valid. The applications are viewed by the parties â€œtest casesâ€, having far reaching constitutional implications. For this reason I determined that the applications should be heard by a bench of two judges.
We have received guidance from counsel on both sides, whose diligence in preparation and presentation of their respective arguments has facilitated our task. For this, we express our appreciation.
I have had the advantage of a preview of the Judgment of my brother, Masuku J, with which I find myself in respectful agreement in all respects save one. That one respect is however, significant if not crucial.
His review of the â€œConstitutional History of Swazilandâ€ appears to be complete and accurate. The examination of the merits of Applicantsâ€™ cases as to whether or not bail should (but for the provisions of the Decree) be granted, leads to what I consider a proper positive conclusion.
I furthermore find myself in agreement with the analysis of what he has dealt with under the rubric â€œthe Kings Power to issue Decreesâ€ and the conclusion that no vesting of such power can be said to have been validly provided for in the constitutional instruments to which reference is made.
Where I find difficulty in agreeing with my Brother, is in his acceptance that the Kingâ€™s power to legislate by decree has become a â€œgrundnormâ€ in accordance with the theory expounded by Kelsen among others. The proclamation and the revocation of the 1968 constitution were not presented at the time as revolutionary, providing a â€œTabula Rasaâ€. The Late King purported to be acting lawfully in accordance with powers he claimed to have, but which were nowhere to be found provided for in the 1968 independence constitution.
I appreciate that a host of conundrums stem both from the view I express, and that enunciated by my brother If the abrogation by proclamation of the 1968 constitution was incompetent in 1973, can the passage of time alone convert what was invalid into a grundnorm? At what stage did that which was invalid become valid? If the validity had been tested in earlier years closer to 1973 what would have been the result? Can the 1973 Proclamation and the later confirmatory decrees become of themselves a valid empowerment of the King to legislate by decree? Does it really alter the outcome because the issue is only put squarely to the test some thirty years after the event? Is not the process by which my brother sees the development and establishment of the grundnorm, nothing more than the negation of the Rule of Law? I would be hard pressed to answer these questions with confidence, but incline to the view that the opinions endorsed by my brother are a negation of the Rule of Law. I question whether the King ever has had the power to amend much less to abrogate the Constitution, whether by decree or otherwise. The 1968 Constitution had as my brother has observed provision for its amendment. Perceived impracticality of this provision could not itself empower or justify abrogation
The Court of Appeal has indicated that legislation by Decree is part of the Law of Swaziland. The decision to which I have referred even if not binding in this respect, must be strongly persuasive. It is the unanimous judgment of a full court of five judges. The judgment contains this sentence (page 12)
â€œAccordingly we have come to the conclusion that the reasoning in Khuluâ€™s case is incorrect and that where the constitution is amended by the King that must b e done by decree published in the Gazetteâ€ (my underlining and italics)
This conclusion accords with that of Masuku J. It was presumably acting on the strength of this sentence that the executive procured that first Decrees No2 and thereafter No 3 were Gazetted
The Court of Appeal having found that the, Non Bailable Offences Order, as an Order in Council, was unconstitutional, may not have had to go further, and to indicate how the changes to the constitution could be validly effected. The sentence I have quoted may not have been necessary in coming to its conclusion, and in this sense is obiter. It is nonetheless a view of a superior court, made after a review of the constitutional enactment pertaining to the issue. As it supports the conclusion to which Masuku J has come, I make my ruling in the present cases, notwithstanding the reservations I have expressed.
By this different route, I agree that the applications should be dismissed
The Applications are accordingly dismissed.