SWAZILAND
HIGH COURT
In
res
1 Bhembe
Lucky Nhlanhla v Rex Crim Case No 75/2002
2 Gwebu
George and ano v Rex Crim Case No 11/2002
JUDGMENT
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 HI, THE KING OF SWAZILAND hereby issue the
following Decree -
Citation
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that extent, unless repealed or amended by this Decree or any other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any section 104 of the 1968 Constitution (Repealed with savings)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.
1
It
will be remembered that the Court of Appeal, in Professor Dlamini v
The King (Appeal Case No 41/2000) had declared the Non -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
Non-bailable
offences
12. Notwithstanding
any provision of any law, a court shall refuse to grant bail to any
person charged with -
(i) murder;
(ii) rape;
(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 (1) 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 "by the King's Proclamation to the Nation, 1973". 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.
2
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 "test cases", having far reaching
constitutional implications. For this reason I determined that the
applications should be heard by a bench of two judges.
3
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 "Constitutional History of Swaziland" appears
to be complete and accurate. The examination of the merits of
Applicants' 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 "the Kings Power to issue Decrees"
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 King's power to legislate by decree has become a "grundnorm"
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 "Tabula
Rasa". 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
4
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)
"Accordingly
we have come to the conclusion that the reasoning in
Khulu's
case is incorrect and that where the constitution is amended by the
King that must b e done by decree published in the Gazette" (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
5
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.
SAPIRE,
CJ
