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.