Eswatini 2005 Constitution

CHAPTER XVIII. MISCELLANEOUS

251. Council of Chiefs

1. There shall be a Council of Chiefs which shall be composed of twelve Chiefs drawn from the four regions of the Kingdom appointed by the iNgwenyama on a rotational basis.
2. There shall be a Chairman of the Council who shall be appointed by the iNgwenyama and a secretary whose office shall be a public office.
3. The Council of Chiefs shall be responsible for, among other things-
   1. advising the King on customary issues and any matter relating to or affecting chieftaincy including chieftaincy disputes;
   2. performing the function in terms of section 115; and
   3. performing such other functions as may be assigned by this Constitution or any other law.
4. Members of the Council of Chiefs shall be divided into three classes of four each and the first class shall vacate office at the expiry of two years, the second class shall vacate office at the expiry of three years and the third class shall vacate office at the expiry of four years.
5. Chiefs in the respective regions may meet as and when necessary but at least twice a year.

252. The Law of Swaziland

1. Subject to the provisions of this Constitution or any other written law, the principles and rules that formed, immediately before the 6th September, 1968 (Independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute.
2. Subject to the provisions of this Constitution, the principles of Swazi customary law (Swazi law and custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Swaziland.
3. The provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that it is, inconsistent with a provision of this Constitution or a statute, or repugnant to natural justice or morality or general principles of humanity.
4. Parliament may –
   1. provide for the proof and pleading of the rule of custom for any purpose;
   2. regulate the manner in which or the purpose for which custom may be recognised, applied or enforced; and
   3. provide for the resolution of conflicts of customs or conflicts of personal laws.

253. Subordinate legislation

1. An Act of Parliament may make provision conferring functions on a joint sitting of the chambers of Parliament with respect to any subordinate legislation (that is to say any instrument having the force of law made under an Act of Parliament) and for the summoning and procedure of a joint sitting for the purpose of the exercise of those functions.
2. Every subordinate legislation shall before commencement be laid before each chamber of Parliament for a period of at least fourteen days.
3. Subject to the provisions of subsection (4), if during the period of fourteen days that legislation is not called upon for debate by motion of any member, then the legislation shall be deemed to have been approved by the chamber concerned.
4. Where the legislation is called up for debate, that legislation shall only come into force when after the debate the chamber concerned resolves to approve the legislation with or without any alterations.
5. The provisions of subsections (2) to (4) inclusive shall not apply where a chamber resolves by a two-thirds majority of all its members that it shall not be necessary for the minister concerned to place the legislation in question before the chamber for the prescribed period.

254. References to public office, etc

In this Constitution, unless the context otherwise requires, the expression “public office” –

1. shall be construed as including the offices of judges of the High Court and Supreme Court, the offices of members of all other courts of law in Swaziland (other than courts-martial), and the offices of members of the Police Force and of members of the Prison Services; and
2. shall not be construed as including the offices of President or Deputy President of the Senate, Speaker or Deputy Speaker of the House, Minister, Deputy Minister, Senator, member of the House or Member of any Commission established by this Constitution.

255. Acting appointments

1. In this Constitution, unless the context otherwise requires, a reference to the holder of an office by the term designating that office shall be construed as including a reference to any person for the time being lawfully acting in or exercising the functions of that office.
2. Where power is vested by this Constitution in any person or authority to appoint any person to act in or perform the functions of any office where the holder of that power is himself unable to perform those functions, the appointment shall not be called in question on the ground that the holder of the office was able to perform those functions.

256. Removal from office

1. Reference in this Constitution to the power to remove a public officer from office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed.
2. Nothing contained in subsection (1) shall be construed as conferring on any person or authority power to require a judge of the superior courts, the Attorney-General, the Director of Public Prosecutions or the Auditor-General to retire from the public service.
3. Any power conferred by any law to permit a person to retire from public service shall, in the case of any public officer who may be removed from office by some person or authority other than a Commission established by this Constitution, vest in the appropriate Service Commission.
4. Any provision in this constitution that vests in any person or authority power to remove any public officer from office shall be without prejudice to the power of any person or authority to abolish any office or to any law providing for the compulsory retirement of public officers generally or any class of public officer on attaining an age specified therein.

257. Resignations

1. Save or as otherwise provided in this Constitution, any person who has been appointed to any office established by this Constitution may resign from that office by letter under his hand addressed to the person or authority by whom he was appointed, and the resignation shall take effect and the office shall accordingly become vacant –
   1. at such time or on such date (if any) as may be specified in the writing or;
   2. subject to subsection (2), when the letter is received by the person or authority to whom it is addressed or by such other person as may be authorised by that person or authority to receive it.
2. Any resignation referred to in subsection (1) may be withdrawn before becoming effective where the person or authority to whom the resignation is addressed consents to the withdrawal.

258. Re-appointments and concurrent appointments

1. Where any person has vacated any office established by this Constitution, he may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this Constitution.
2. Where a power is conferred by this Constitution upon any person to make any appointment to any office, a person may be appointed to that office notwithstanding that some other person may be holding that office, when that other person is on leave of absence pending the relinquishment of the office, and where two or more persons are holding the same office by reason of an appointment made in pursuance of this subsection, then, for the purposes of any function conferred upon the holder of that office, the person last appointed shall be deemed to be the sole holder of the office.

259. Power to amend or revoke instruments etc

Where any power is conferred by this Constitution to make any order, regulation or rule, or to give any direction, the power shall be construed as including the power, exercisable in like manner, to amend or revoke any such order, regulation, rule or direction.

260. Saving for jurisdiction of the High Court

A provision of this Constitution that a person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall not be construed as precluding the High Court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.

261. Interpretation

1. In this Constitution unless the context otherwise requires –
   • “Act of Parliament” means any law made by the King and Parliament;
     
     “chamber” means a house of Parliament;

     “the Commonwealth” means the countries that are independent members of the Commonwealth and territories for whose international relations any of those countries is wholly or in part responsible;

     “financial year” means the period of twelve months ending on the thirty-first day of March in any year or such other day as may be prescribed;

     “the Gazette” means the Swaziland Government Gazette;

     “the Government” means the Government of Swaziland;

     “high judicial office” means the office of a judge of a court of unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth that may be prescribed or the office of a judge of a court having jurisdiction in appeals from such a court;

     “the House” means the House of Assembly;

     “law” includes any instruments having the force of law and any unwritten rule of law;

     “Ndlovukazi” means a person appointed in terms of section 229 of this Constitution;

     “Ngwenyama” means a person appointed in terms of section 228 of this Constitution;

     “oath” means the oath of allegiance set out in the Second Schedule and also includes affirmation;

     “Parliament” means the Parliament of Swaziland;

     “prescribed” means prescribed in law or, in relation to anything that may be prescribed only by an Act of Parliament, it means so prescribed;

     “public office” means subject to the provisions of section 254 any office of emolument in the public service;

     “public officer” means subject to the provisions of section 254 the holder of any public office and includes any person appointed to act in any public office;

     “public service” means the service of the Crown in a civil capacity in respect of the government of Swaziland;

     “session” means, in relation to Parliament, the sittings of Parliament commencing when the House first meets after this Constitution comes into force or when Parliament first meets after its prorogation at any time and terminating when Parliament is prorogued or is dissolved without having been prorogued;

     “Sibaya” means the nation meeting as the Swazi National Council at the Ndlovukazi’s official residence for the purpose of deliberating or deciding on important national matters;

     “sitting” means in relation to a chamber, a period during which that chamber is sitting continuously without adjournment, and includes any period during which the chamber is in committee;

     “vusela” means a consultative process whereby a person or group of persons or community is visited and addressed with a view to soliciting opinion or consensus on some public matter.

2. In this Constitution –
   1. a reference to an appointment to any office shall be construed as including a reference to the appointment of a person to act or perform the functions of that office at any time when the office is vacant or the holder of that office is unable to perform the functions of that office; and
   2. a reference to the holder of an office by the term designating the office of that holder shall be construed as including a reference to any person for the time being lawfully acting in or performing the functions of that office.
3. Save as otherwise provided in this Constitution, the Interpretation Act 1899 or its successor shall apply, with the necessary adaptations, for the purpose of interpreting this Constitution.