<p>This study looked at socio-economic and political constraints on constitutional reform in Swaziland, an independent state with a fully autonomous government that falls under the Monarch who is Head of State. Swaziland maintains strong economic and trading links with South Africa and also maintains such ties with other states, especially in the Southern African Development Community region. Up untill 1973, the country's constitution was Westminister based. This was evoked and replaced with a system designed to facilitate the practice of both western and traditional styles of government. This system incorporated the system known as Tinkhundla and provides for the people to elect candidates to be their parliamentary representatives for specific constituencies.</p>

<p>This study looked at socio-economic and political constraints on constitutional reform in Swaziland, an independent state with a fully autonomous government that falls under the Monarch who is Head of State. Swaziland maintains strong economic and trading links with South Africa and also maintains such ties with other states, especially in the Southern African Development Community region. Up untill 1973, the country's constitution was Westminister based. This was evoked and replaced with a system designed to facilitate the practice of both western and traditional styles of government. This system incorporated the system known as Tinkhundla and provides for the people to elect candidates to be their parliamentary representatives for specific constituencies.</p>

Masters in Public Administration - MPA / This study looked at socio-economic and political constraints on constitutional reform in Swaziland, an independent state with a fully autonomous government that falls under the Monarch who is Head of State. Swaziland maintains strong economic and trading links with South Africa and also maintains such ties with other states, especially in the Southern African Development Community region. Up untill 1973, the country's constitution was Westminister based. This was evoked and replaced with a system designed to facilitate the practice of both western and traditional styles of government. This system incorporated the system known as Tinkhundla and provides for the people to elect candidates to be their parliamentary representatives for specific constituencies. / South Africa

The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.

Tensions between the individual rights and freedoms found in constitutional bills of rights and the traditionally prescribed social roles and positions articulated in African customary law systems have often been characterised as tensions between communitarian and liberal philosophies. In particular, the notion of gender equality, which is often a feature of the protections offered by constitutional bills of rights, is seen to be in direct opposition to the overtly patriarchal character of many African customs and traditions. This thesis looks specifically at polygamy, long and widely considered in the West to be an oppressive practice premised on the assumed inferiority of women. The analysis considers the implications of polygamy in a particular cultural context, that of the Kingdom of Swaziland, where the newly instituted constitution is often seen to be incompatible with many aspects of Swazi customary law. Here, the tension between the constitutional commitment to gender equality and the persistence of polygamy as a seemingly discriminatory cultural practice forms a lens through which to view the debate as a whole. The theoretical analysis is supplemented by empirical research sourced from local media archives and in-depth interviews conducted with twelve Swazi women, both unmarried and married in polygamous relationships. Communitarian and liberal approaches to resolving this tension are compared, contrasted and finally critiqued from a feminist standpoint. The feminist critique of both communitarianism and liberalism implies that neither ideology promises much for women and affirms the relatively recent feminist suggestion that the key to resolving tensions between constitutional and customary law in general, and to uplifting the social/legal status of women in particular lies in the enhancement of women’s democratic participation and the improvement of women’s decision-making powers.

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.

The title of this thesis is: The Customary Law of Intestate Succession. The African customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law. This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. The chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law. / Public, Constitutional, & International / LL.D.

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.

The title of this thesis is: The Customary Law of Intestate Succession. The African customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law. This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. The chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law. / Public, Constitutional, and International / LL. D.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.