Eswatini 2005 Constitution - Page 4 of 22

Table of Contents

CHAPTER III. PROTECTION AND PROMOTION OF FUNDAMENTAL RIGHTS AND FREEDOMS

14. Fundamental rights and freedoms of the individual

The fundamental human rights and freedoms of the individual enshrined in this Chapter are hereby declared and guaranteed, namely –
1. respect for life, liberty, right to fair hearing, equality before the law and equal protection of the law;
2. freedom of conscience, of expression and of peaceful assembly and association and of movement;
3. protection of the privacy of the home and other property rights of the individual;
4. protection from deprivation of property without compensation;
5. protection from inhuman or degrading treatment, slavery and forced labour, arbitrary search and entry; and
6. respect for rights of the family, women, children, workers and persons with disabilities.
The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government and, where applicable to them, by all natural and legal persons in Swaziland, and shall be enforceable by the courts as provided in this Constitution.
A person of whatever gender, race, place of origin, political opinion, colour, religion, creed, age or disability shall be entitled to the fundamental rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.

15. Protection of right to life

A person shall not be deprived of life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted.
The death penalty shall not be mandatory.
A sentence of life imprisonment shall not be less than twenty five years.
Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are mentioned in this subsection, a person shall not be regarded as having been deprived of life in contravention of this section if death results from use of force to such extent as is reasonably justifiable and proportionate in the circumstances of the case –
1. for the defence of any person from violence or for the defence of property;
2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
3. for the purpose of suppressing a riot, insurrection or mutiny; or
4. in order to prevent the commission by that person of a serious criminal offence.
Abortion is unlawful but may be allowed –
1. on medical or therapeutic grounds including where a doctor certifies that –
  1. continued pregnancy will endanger the life or constitute a serious threat to the physical health of the woman;
  2. continued pregnancy will constitute a serious threat to the mental health of the woman;
  3. there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped;
2. where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a mentally retarded female; or
3. on such other grounds as Parliament may prescribe.

16. Protection of right to personal liberty

A person shall not be deprived of personal liberty save as may be authorised by law in any of the following cases –
1. in execution of the sentence or order of a court, whether established for Swaziland or another country, or of an international court or tribunal in respect of a conviction of a criminal offence;
2. in execution of the order of a court punishing that person for contempt of that court or of another court or tribunal;
3. in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law;
4. for the purpose of bringing that person before a court in execution of the order of a court;
5. upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence under the laws of Swaziland;
6. in the case of a person who has not attained the age of eighteen years, for the purpose of the education, care or welfare of that person;
7. for the purpose of preventing the spread of an infectious or contagious disease;
8. in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of the care or treatment of that person or the protection of the community;
9. for the purpose of preventing the unlawful entry of that person into Swaziland, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Swaziland or for the purpose of restricting that person while being conveyed through Swaziland in the course of the extradition or removal of that person as a convicted prisoner from one country to another; or
10. to such extent as may be necessary in the execution of a lawful order –
  1. requiring that person to remain within a specified area within Swaziland or prohibiting that person from being within such an area;
  2. reasonably justifiable for the taking of proceedings against that person relating to the making of any such order; or
  3. reasonably justifiable for restraining that person during any visit, which that person is permitted to make to any part of Swaziland in which, in consequence of that order, the presence of that person would otherwise be unlawful.
A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which that person understands, of the reasons for the arrest or detention and of the right of that person to a legal representative chosen by that person.
A person who is arrested or detained –
1. for the purpose of bringing that person before a court in execution of the order of a court; or
2. upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence,
shall, unless sooner released, be brought without undue delay before a court.
Where a person arrested or detained pursuant to the provisions of subsection (3), is not brought before a court within forty-eight hours of the arrest or detention, the burden of proving that the provisions of subsection (3) have been complied with shall rest upon any person alleging that compliance.
Where a person is brought before a court in execution of the order of a court in any proceedings or upon any suspicion of that person having committed or being about to commit an offence, that person shall not be further held in custody in connection with those proceedings or that offence save upon the order of a court.
Where a person is arrested or detained –
1. the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the arrest or detention and place of the arrest or detention.
2. the next-of-kin, legal representative and personal doctor of that person shall be allowed reasonable access and confidentiality to that person; and
3. that person shall be allowed reasonable access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
If a person is arrested or detained as mentioned in subsection (3) (b) then, without prejudice to any further proceedings that may be brought against that person, that person shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that that person appears at a later date for trial or for proceedings preliminary to trial.
A person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.
Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person has spent in lawful custody in respect of that offence before the completion of the trial of that person shall be taken into account in imposing the term of imprisonment.

17. Protection from slavery and forced labour

A person shall not be held in slavery or servitude.
A person shall not be required to perform forced labour.
For the purposes of this section, the expression “forced labour” does not include any labour –
1. required in consequence of the sentence or order of a court;
2. required of any person while that person is lawfully detained which, though not required in consequence of the sentence or order of the court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which that person is detained;
3. required of a member of a disciplined force in pursuance of the duties of that member or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labour that that person is required by law to perform in place of that service;
4. required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of that labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or
5. reasonably required as part of reasonable and normal parental, cultural, communal or other civic obligations, unless it is repugnant to the general principles of humanity.

18. Protection from inhuman or degrading treatment

The dignity of every person is inviolable.
A person shall not be subjected to torture or to inhuman or degrading treatment or punishment.

19. Protection from deprivation of property

A person has a right to own property either alone or in association with others.
A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied –
1. the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health;
2. the compulsory taking of possession or acquisition of the property is made under a law which makes provision for –
  1. prompt payment of fair and adequate compensation; and
  2. a right of access to a court of law by any person who has an interest in or right over the property;
3. the taking of possession or the acquisition is made under a court order.

20. Equality before the law

All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.
For the purposes of this section, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethnic origin, birth, tribe, creed or religion, or social or economic standing, political opinion, age or disability.
Subject to the provisions of subsection (5) Parliament shall not be competent to enact a law that is discriminatory either of itself or in its effect.
Nothing in this section shall prevent Parliament from enacting laws that are necessary for implementing policies and programmes aimed at redressing social, economic or educational or other imbalances in society.

21. Right to fair hearing

In the determination of civil rights and obligations or any criminal charge a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adjudicating authority established by law.
A person who is charged with a criminal offence shall be-
1. presumed to be innocent until that person is proved or has pleaded guilty;
2. informed as soon as reasonably practicable, in a language which that person understands and in sufficient detail, of the nature of the offence or charge;
3. entitled to legal representation at the expense of the government in the case of any offence which carries a sentence of death or imprisonment for life;
4. given adequate time and facilities for the preparation of the defence;
5. permitted to present a defence before the court either directly or through a legal representative chosen by that person;
6. afforded facilities to examine in person or by a legal representative the witnesses called by the prosecution and to obtain the attendance of witnesses to testify on behalf of that person on the same conditions as those applying to witnesses called by the prosecution; and
7. permitted to have, without payment, the assistance of an interpreter if that person cannot understand the language used at the trial.
Except with the free consent of the person concerned and for purposes of subsection (2), the trial shall not take place in the absence of that person unless that person acts so as to render the continuance of the proceedings in the presence of that person impracticable and the court has ordered that person to be removed and the trial to proceed in the absence of that person.
Where a person is tried for any criminal offence, the accused person or person authorised by the accused person shall, if the accused person or person authorised by the accused person so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
A person shall not be charged with or held to be guilty of a criminal offence on account of any act or omission that did not, at the time the act or omission took place, constitute an offence.
A penalty shall not be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
A person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall not again be tried for that offence or for any other criminal offence of which that person could have been convicted at the trial for the offence, save upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
A person shall not be tried for a criminal offence where that person has been pardoned for that offence.
A person who is tried for a criminal offence shall not be compelled to give evidence at the trial.
Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
All proceedings of every court or adjudicating authority shall be held in public.
Notwithstanding the provisions of subsection (11), a court or adjudicating authority –
1. may, unless it is otherwise provided by Act of Parliament, exclude from its proceedings persons other than the parties and their legal representatives to such extent as the court may consider –
  1. in circumstances where publicity may unduly prejudice the interests of defence, public safety, public order, justice, or public morality or would prejudice the welfare of persons under the age of eighteen years or as the court may deem appropriate; or
  2. in interlocutory proceedings;
2. shall, where it is so prescribed by a law that is reasonably required in the interests of defence, public safety, public order, justice, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of the persons concerned in the proceedings, exclude from its proceedings persons, other than the parties and their legal representatives, to such extent as is so prescribed.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of –
1. subsection (2) (a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
2. subsection (2) (e) to the extent that the law in question prohibits legal representation before a Swazi Court or before any Swazi court hearing appeals from such a court;
3. subsection (2) (f) to the extent that the law in question imposes conditions that should be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or
4. subsection (7) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying and convicting that member shall in sentencing that member to any punishment take into account any punishment awarded under that disciplinary law.
In the case of a person who is held in lawful detention, the provisions of subsections (1), (2) (e) and (f) and (3) shall not apply in relation to the trial of that person for a criminal offence under the law regulating the discipline of persons held in such detention.
In this section “criminal offence” means a criminal offence under the law of Swaziland, and “proceedings” in relation to a court or adjudicating authority includes the announcement of the decision of the court or adjudicating authority.

22. Protection against arbitrary search or entry

A person shall not be subjected –
1. to the search of the person or the property of that person;
2. to the entry by others on the premises of that person;
3. to the search of the private communications of that person,
except with the free consent of that person first obtained.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that –
1. is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;
2. is reasonably required for the purpose of promoting the rights or freedoms of other persons;
3. authorises an officer or agent of the Government or of a local government authority, or of a body corporate established by law for public purposes, to enter on the premises of any person in order to inspect those premises or anything on those premises for the purposes of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to that Government, authority, or body corporate as the case may be;
4. authorises, for the purposes of enforcing the judgement or order of a court in any civil proceedings, the entry upon any premises by order of a court,
except so far as, in respect of paragraph (c) or (d) that provision or, as the case may be, the thing done under the authority of that Government, local authority or body corporate is shown not to be reasonably justifiable in a democratic society.

23. Protection of freedom of conscience or religion

A person has a right to freedom of thought, conscience or religion.
Except with the free consent of that person, a person shall not be hindered in the enjoyment of the freedom of conscience, and for the purposes of this section freedom of conscience includes freedom of thought and of religion, freedom to change religion or belief, and freedom of worship either alone or in community with others.
A religious community is entitled to establish and maintain places of education and to manage any place of education which that community wholly maintains, and that community may not be prevented from providing religious instruction for persons of that community in the course of any education provided at any place of education which that community wholly maintains or in the course of any education which that community otherwise provides.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
1. that is reasonably required in the interest of defence, public safety, public order, public morality or public health; or
2. that is reasonably required for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of members of any other religion or belief.

24. Protection of freedom of expression

A person has a right of freedom of expression and opinion.
A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say –
1. freedom to hold opinions without interference;
2. freedom to receive ideas and information without interference;
3. freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and
4. freedom from interference with the correspondence of that person.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
1. that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
2. that is reasonably required for the purpose of –
  1. protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;
  2. preventing the disclosure of information received in confidence;
  3. maintaining the authority and independence of the courts; or
  4. regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication; or
3. that imposes reasonable restrictions upon public officers,
except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.

25. Protection of freedom of assembly and association

A person has the right to freedom of peaceful assembly and association.
A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
1. that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
2. that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
3. that imposes reasonable restrictions upon public officers,
except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.
Without prejudice to the generality of subsection (2), nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
1. for the registration of trade unions, employers organisations, companies, partnerships or co-operative societies and other associations including provision relating to the procedure for registration, prescribing qualifications for registration and authorising refusal of registration on the grounds that the prescribed qualifications are not fulfilled; or
2. for prohibiting or restricting the performance of any function or the carrying on of any business by any such association as is mentioned in paragraph (a) which is not registered.
A person shall not be compelled to join or belong to an association.

26. Protection of freedom of movement

A person shall not be deprived of the freedom of movement, that is to say, the right to move freely throughout Swaziland, the right to reside in any part of Swaziland, the right to enter Swaziland, the right to leave Swaziland and immunity from expulsion from Swaziland.
Any restriction on the freedom of movement of a person or residence that is involved in the lawful detention of that person shall not be held to be inconsistent with or in contravention of this section.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
1. for the imposition of restrictions on the movement or residence within Swaziland of any person or on the right of any person to leave Swaziland that are reasonably required in the interests of defence, public safety or public order;
2. for the imposition of restrictions on the movement or residence within Swaziland of persons generally or any class of persons that are reasonably required in the interests of defence, public safety, public order, public morality or public health, and except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society;
3. for the imposition of restrictions, by order of a court, on the movement or residence within Swaziland of any person or on the right of any person to leave Swaziland either in consequence of having been found guilty of criminal offence under the law of Swaziland or for the purpose of ensuring the appearance of that person before a court at a later date for the trial of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to the extradition or lawful removal from Swaziland of that person;
4. for the imposition of restrictions on the freedom of entry or movement of any person who is not a citizen of Swaziland;
5. for the imposition of restrictions on the movement or residence within Swaziland of any person who holds or is acting in any public office;
6. for the removal of a person from Swaziland to be tried or punished in some other country for criminal offence under the law of that other country or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted; or
7. for the imposition of restrictions on the right of any person to leave Swaziland that are reasonably required in order to secure the fulfilment of any obligation imposed on that person by law.
If any person whose freedom of movement has been restricted by virtue of such a provision as is referred to in subsection (3)(a) so requests at any time during the period of that restriction not earlier than three months after the order imposing that restriction was made or three months after he last made such a request, as the case may be, the case of that person shall be reviewed by the Commission on Human Rights and Public Administration.
On any review by a tribunal in pursuance of subsection (4) of the case of any person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered and, unless it is otherwise provided by law, that authority shall be obliged to act in accordance with any such recommendations.
Nothing contained in or done under the authority of any provision of Swazi law and custom shall be held to be inconsistent with or in contravention of this section to the extent that that provision authorises the imposition of restrictions upon the freedom of any person to reside in any part of Swaziland.

27. Rights and protection of the family

Men and women of marriageable age have a right to marry and found a family.
Marriage shall be entered into only with the free and full consent of the intending spouses.
The family is the natural and fundamental unit of society and is entitled to protection by the State.
Motherhood and childhood are entitled to special care and assistance by society and the State.
Society and the State have the duty to preserve and sustain the harmonious development, cohesion and respect for the family and family values.
Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of the needy and the elderly.

28. Rights and freedoms of women

Women have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.
Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.
A woman shall not be compelled to undergo or uphold any custom to which she is in conscience opposed.

29. Rights of the child

A child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child.
A child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.
The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.
Children whether born in or out of wedlock shall enjoy the same protection and rights.
Children have the duty to respect their parents at all times and to maintain those parents in case of need.
Every Swazi child shall within three years of the commencement of this Constitution have the right to free education in public schools at least up to the end of primary school, beginning with the first grade.
Parliament shall enact laws necessary to ensure that –
1. a child has the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents, except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law;
2. a child is entitled to reasonable provision out of the estate of its parents;
3. parents undertake their natural right and obligation of care, maintenance and proper upbringing of their children; and
4. children receive special protection against exposure to physical and moral hazards within and outside the family.

30. Rights of persons with disabilities

Persons with disabilities have a right to respect and human dignity and the Government and society shall take appropriate measures to ensure that those persons realise their full mental and physical potential.
Parliament shall enact laws for the protection of persons with disabilities so as to enable those persons to enjoy productive and fulfilling lives.

31. Abolition of the status of illegitimacy

For the avoidance of doubt, the (common law) status of illegitimacy of persons born out of wedlock is abolished.

32. Rights of workers

A person has the right to practise a profession and to carry on any lawful occupation, trade or business.
A worker has a right to –
1. freely form, join or not to join a trade union for the promotion and protection of the economic interests of that worker; and
2. collective bargaining and representation.
The employer of a female worker shall accord that worker protection before and after child birth in accordance with law.
Parliament shall enact laws to –
1. provide for the right of persons to work under satisfactory, safe and healthy conditions;
2. ensure equal payment for equal work without discrimination;
3. ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay as well as remuneration for public holidays; and
4. protect employees from victimisation and unfair dismissal or treatment.

33. Right to administrative justice

A person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.
A person appearing before any administrative authority has a right to be given reasons in writing for the decision of that authority.

34. Property rights of spouses

A surviving spouse is entitled to a reasonable provision out of the estate of the other spouse whether the other spouse died having made a valid will or not and whether the spouses were married by civil or customary rites.
Parliament shall, as soon as practicable after the commencement of this Constitution, enact legislation regulating the property rights of spouses including common-law husband and wife.

35. Enforcement of protective provisions

Where a person alleges that any of the foregoing provisions of this Chapter has been, is being, or is likely to be, contravened in relation to that person or a group of which that person is a member (or, in the case of a person who is detained, where any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
The High Court shall have original jurisdiction –
1. to hear and determine any application made in pursuance of subsection (1);
2. to determine any question which is referred to it in pursuance of subsection (3);
and may make such orders, issue such writs and make such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Chapter.
If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of this Chapter, the person presiding in that court may, and shall where a party to the proceedings so requests, stay the proceedings and refer the question to the High Court unless, in the judgement of that person, which shall be final, the raising of the question is merely frivolous or vexatious.
Where any question is referred to the High Court in pursuance of subsection (3) the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Supreme Court, in accordance with the decision of the Supreme Court.
An appeal shall not lie, without the leave of the Supreme Court, from any determination by the High Court that an application made in pursuance of subsection (1) is merely frivolous or vexatious.
Provision may be made by or under an Act of Parliament for conferring upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or expedient for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.
The Chief Justice may make rules for purposes of this section with respect to the practice and procedure of the High Court (including rules with respect to the time within which applications to that court may be made).

36. Declaration of emergency

The king may, on the advice of the Prime Minister, by proclamation which shall be published in the Gazette, declare that a state of emergency exists in Swaziland or any part of Swaziland for the purposes of this Chapter.
The provisions of subsection (1) shall not apply and a proclamation shall not be issued under that subsection and where issued that proclamation shall not be effective in law unless –
1. Swaziland is at war or circumstances have arisen making imminent a state of war between Swaziland and a foreign State;
2. there is in Swaziland a natural disaster or imminent threat of a natural disaster; or
3. there is action taken or immediately threatened by a person or body of persons of such a nature or on so extensive a scale as to be likely to endanger the public safety or to deprive the community or a significant part of that community of supplies or services essential to the life of the community.
Copies of the Gazette containing the proclamation of a state of emergency shall as soon as practicable and at any rate not later than seven days from date of publication of that proclamation be laid before Parliament by the Prime Minister.
A declaration under subsection (1) if not sooner revoked, shall cease to have effect –
1. in the case of a declaration made when Parliament is sitting or has been summoned to meet within three days, at the expiration of a period of seven days beginning with the date of publication of the declaration;
2. in any other case, at the expiration of a period of twenty-one days beginning with the date of publication of the declaration,
unless, before the expiration of that period, the declaration is approved by a resolution passed by a two-thirds majority at a joint sitting of all the members of the Senate and the House.
Subject to the provisions of subsection (12), the joint sitting referred to in subsection (4) shall not dissolve but only be adjourned to be reconvened from time to time by the President of the Senate or the Speaker of the House until the emergency is ended.
A declaration approved by a resolution passed at a joint sitting under subsection (4) shall continue in force until the expiration of a period of three months beginning with the date upon which that declaration was so approved or until such earlier date as may be specified in the resolution.
Notwithstanding the provisions of subsection (6), the declaration may be extended from time to time for periods of not more than three months at a time by a resolution passed by a three-fifths majority at a joint sitting of all the members of Senate and the House.
Where a person is detained or restricted by virtue of a power exercised in the absolute discretion of any authority and conferred by any such law as is referred to in section 38(1), the following shall apply, that is to say –
1. that person shall, as soon as reasonably practicable and in any case not more than seventy two hours after the detention or restriction, be furnished with a statement in writing in a language that the person understands specifying in sufficient detail the grounds upon which that person is detained or restricted;
2. not more than five days after detention or restriction, a notification shall be published in the Gazette stating that the person has been detained or restricted and giving particulars of the provision of law under which the detention or restriction is authorised;
3. not more than fourteen days after detention or restriction and thereafter at intervals of three months, the case of that person shall be reviewed by the Commission on Human Rights and Public Administration;
4. the detained or restricted person shall be afforded reasonable facilities to consult a legal practitioner who shall be permitted to make representations to the tribunal; and
5. at the hearing before the tribunal, that person may appear in person or by legal representative.
On any review by a tribunal of the case of a detained or restricted person the tribunal may make recommendations concerning the necessity or expediency of continuing the detention or restriction to the authority by which the detention or restriction was ordered and the authority shall be obliged to act in accordance with any such recommendations.
Where movement of persons is restricted or curfew imposed, that restriction or curfew, unless lifted within twenty-one days, shall be reviewed by the tribunal appointed in terms of subsection (8) (c) at intervals of not more than one month and any person or group of persons affected by the restriction or curfew may make submissions to the tribunal.
Where the public emergency has been extended beyond twenty-one days, the Prime Minister shall make a report to a joint sitting of the Senate and the House stating among other things, the number of persons, if any, detained or restricted in terms of this section, the status of the emergency and the public reaction to the continued state of emergency.
The provisions of the First Schedule shall apply with respect to the summoning and procedure of the joint sitting of the Senate and the House.

37. Derogations during public emergency

Without prejudice to the power of Parliament to make provision in any situation or the provisions of section 38, nothing contained in or done under the authority of a law shall be held to be inconsistent with or in contravention of any provision of this Chapter to the extent that the law authorises the taking, during any period of public emergency, of measures that are reasonably justifiable for dealing with the situation that exists during that period.
A law that is passed during a period of public emergency and is expressly declared to have effect only during that period shall have effect in terms provided in the section of this Chapter under which that law is passed.

38. Prohibition of certain derogations

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms –

life, equality before the law and security of person;
the right to fair hearing;
freedom from slavery or servitude;
the right to an order in terms of section 35 (1); and
freedom from torture, cruel, inhuman or degrading treatment or punishment.

39. Saving clauses and interpretation

Save as may otherwise be expressly indicated, nothing contained in section 21 (2) or section 36 (8) shall be construed as entitling a person to legal representation at public expense.
Nothing contained in section 20, 24 or 25 shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to the communication or association with other persons or as to the movement or residence of those officers.
In relation to a person who is a member of a disciplined force of Swaziland, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 15, 17, or 18.
Measures taken in relation to a person who is a member of a disciplined force of a country with which Swaziland is at war and any law, to the extent that it authorises the taking of any of those measures shall not be held to be inconsistent with or in contravention of any of the provisions of this Chapter.
The provisions of section 36 (8) do not apply in the case of a detained or restricted person who is a citizen of a country which is at war with Swaziland or has been engaged in hostilities against Swaziland in association with or on behalf of that country or otherwise assisting that country.
In this Chapter, unless the context otherwise requires –
- “contravention”, in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
  “court” means a court of law having jurisdiction in Swaziland, but does not include, save in sections 15 and 17, a court established by a disciplinary law;
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  “disciplinary law” means law regulating the discipline of any disciplined force;
  “disciplined force” means –
  
  an air, military or naval force;
  
  the Swaziland Royal Police Service;
  
  the Swaziland Correctional Services.
  
  “member” in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline;
  
  “period of public emergency” means any period so declared under section 36.
  
  “property” means property, movable or immovable, corporeal or incorporeal, of any description whatever including Swazi nation land and any right or interest lawfully held by any person in that property.