Eswatini 2005 Constitution

CHAPTER VI. THE EXECUTIVE

64. Executive authority of Swaziland

1. The executive authority of Swaziland vests in the King as Head of State and shall be exercised in accordance with the provisions of this Constitution.
2. The King shall protect and defend this Constitution and all laws made under or continued in force by this Constitution.
3. Subject to the provisions of this Constitution, the King may exercise the executive authority either directly or through the Cabinet or a Minister.
4. The King in his capacity as Head of State has authority, in accordance with this Constitution or any other law, among other things to –
   1. assent to and sign bills;
   2. summon and dissolve Parliament;
   3. receive foreign envoys and appoint diplomats;
   4. issue pardons, reprieves or commute sentences;
   5. declare a state of emergency;
   6. confer honours;
   7. establish any commission or vusela; and
   8. order a referendum.

65. Exercise of King’s functions

1. In the exercise of the functions under this Constitution or any other law the King shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except where –
   1. any function under this Constitution is expressed (in whatever terms) to be exercisable by him acting in his discretion or on the advice or the recommendation of or after consultation with any other person or authority;
   2. any function conferred by any other law is expressed (in whatever terms) to be exercisable by him in his discretion; and
   3. the provisions of section 158(5), 159(5), 175(4) or paragraph 1(1) of the First Schedule apply.
2. Where, in terms of subsection (1), the Cabinet or a Minister gives advice to the King, the King may refer back that advice for further consideration by the Cabinet, and Cabinet shall meet within ten days to reconsider the advice as required by the King.
3. Where the King is required to exercise any function on the advice or recommendation of any person or authority, he shall exercise that function on that advice or recommendation, save that the King may before acting on the advice or recommendation, in his discretion, once refer back that advice or recommendation in whole or in part for reconsideration within ten days by the person or authority concerned.
4. Where the King is required by this Constitution to exercise any function after consultation with any person or authority, the King may or may not exercise that function following that consultation.

66. The Cabinet of Ministers

1. There shall be a Cabinet which shall consist of the Prime Minister, Deputy Prime Minister and such number of Ministers as the King, after consultations with the Prime Minister, may deem necessary for the purpose of administering and executing the functions of the Government.
2. The Prime Minister shall be the chairman of the Cabinet and leader of Government business in Parliament.

67. Appointment of Prime Minister and other Ministers

1. The King shall appoint the Prime Minister from among members of the House acting on recommendation of the King’s Advisory Council.
2. The King shall appoint Ministers from both chambers of Parliament on the recommendation of the Prime Minister.
3. At least half the number of Ministers shall be appointed from among the elected members of the House.

68. Vacation of office of Prime Minister or Minister

1. The office of the Prime Minister shall become vacant where –
   1. the King revokes the appointment for incompetence;
   2. the Prime Minister is declared an insolvent;
   3. the Prime Minister ceases to be a member of the House;
   4. the Prime Minister resigns from office;
   5. after a resolution of no confidence in the Prime Minister is passed by at least two thirds majority of all members of the House, the King removes the Prime Minister;
   6. the Prime Minister is removed from office for misbehaviour or inability to perform the functions of that office (whether arising from infirmity of body or mind); or
   7. the Prime Minister dies.
2. Where the King considers the question of removing the Prime Minister from office in terms of subsection (1) (f) –
   1. the King shall appoint a tribunal, which shall consist of a chairman who shall be the Chief Justice and two other reputable persons one of whom should have held the position of a Minister, Speaker of the House or President of the Senate;
   2. the tribunal shall enquire into the matter and report to the King whether or not to remove the Prime Minister from office for inability or misbehaviour.
3. The Prime Minister shall not hold office for more than two consecutive terms.
4. The office of a Minister shall become vacant where –
   1. the King, acting on the recommendation of the Prime Minister, revokes that appointment;
   2. the Minister is declared an insolvent;
   3. the Minister ceases to be a member of Parliament;
   4. the Minister resigns from office;
   5. after a resolution of no confidence is passed by at least two thirds majority of all the members of the House on the Minister, the King removes the Minister;
   6. the Minister dies; or
   7. the Minister is removed from office for misbehaviour or inability to perform the functions of that office.
5. Where a resolution of no confidence is passed on the Cabinet by a three- fifths majority of all members of the House the King shall dissolve the Cabinet.
6. A Minister shall not be in office for more than two consecutive terms.
7. For purposes of this section –
   1. a vote of no confidence in the Cabinet, Prime Minister or Minister shall not be moved more than once in a session;
   2. any period served in an office within the life of Parliament constitutes a “term of office”.

69. Responsibility of Cabinet

1. The Cabinet shall keep the King fully informed about the general conduct of the government of Swaziland and shall furnish the King with such information as the King may require in respect of any particular matter relating to the government of Swaziland
2. The Cabinet shall be collectively responsible to Parliament for any advice given to the King by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in the execution of the office of Minister.
3. The Cabinet shall formulate and implement the policy of the Government in line with any national development strategy or plan and perform such other functions as may be conferred by this Constitution or any other law.

70. Assignment of responsibilities

The King may, after consultation with the Prime Minister, assign to the Prime Minister or any other Minister responsibility for the conduct of any business of the Government including the administration of any department of Government.

71. Exercise of the Prime Minister’s functions during absence or illness

Where the Prime Minister is absent from Swaziland or is by reason of illness or any other cause unable to exercise the functions conferred on the Prime Minister by this Constitution or any other law, those functions shall be exercised by the Deputy Prime Minster or where the Deputy Prime Minister is for any reason unable to exercise the functions of the office of the Prime Minister, by such other Minister as the King may authorize in writing for a maximum period not exceeding three months.

72. Exercise of Minister’s functions during absence or illness

Where a Minister is absent from Swaziland or is by reason of illness or any other cause unable to exercise the functions of the office of that Minister the Minister may, after consultation with the Prime Minister, delegate those functions to another Minister in writing for a maximum period not exceeding six months.

73. Oaths of office

A Prime Minister, Deputy Prime Minister or Minister shall, before assuming the duties of office take and subscribe the oath of allegiance and the oath for the due execution of office as set out in the Second Schedule.

74. Secretary to Cabinet

1. There shall be a Secretary to the Cabinet who shall be the head of the public service and whose office shall be a public office.
2. The King, in appointing the Secretary to Cabinet, shall act on the advice of the Prime Minister after recommendation by the Civil Service Commission.
3. The Secretary to Cabinet shall, in addition to any other functions, which may be conferred by the Prime Minister or by any other law –
   1. be chief adviser to the Prime Minister on management systems, structures and organization of Ministries;
   2. review and monitor the overall performance of each Ministry in implementing government policies and programmes, including the discharge by the Principal Secretaries of their functions;
   3. have charge of Cabinet office and be responsible in accordance with the instructions given by the Prime Minister, for arranging the business and keeping the minutes of the Cabinet and for conveying decisions made in Cabinet to the appropriate authorities.

75. Direction of government departments

1. Where a Minister has been charged with the responsibility for any department of government, the Minister shall be responsible for the policy and general direction and control over such department.
2. Two or more government departments may be placed under the responsibility of one Minister.

76. Principal Secretaries

1. The King, shall appoint Principal Secretaries on a renewable five year contract on the advice of the Civil Service Commission.
2. Subject to the provisions of this Constitution, a Ministry or a department of the Government shall be under the supervision of a Principal Secretary whose office shall be a public office.

77. Attorney-General

1. There shall be an Attorney-General for Swaziland whose office shall be a public office and who shall be appointed by the King acting on the recommendation of the Minister responsible for Justice after consultation with the Judicial Service Commission.
2. A person shall qualify to be appointed Attorney-General where that person qualifies for appointment as a judge of the superior courts.
3. The Attorney-General shall –
   1. be the principal legal adviser to the Government;
   2. be ex-officio member of the Cabinet; and
   3. represent chiefs in their official capacity in legal proceedings.
4. The Attorney-General shall, whenever requested so to do, advise the King on any matter of law including any matter relating to any function vested in the King by this Constitution or any other law.
5. Without prejudice to the general functions under subsection (3), the functions of the Attorney-General shall be to –
   1. draft and sign all Government Bills to be presented to Parliament;
   2. draw or peruse agreements, contracts, treaties, conventions and documents, by whatever name called, to which the Government is a party or in respect of which the Government has an interest;
   3. represent the Government in courts or in any legal proceedings to which Government is a party;
   4. be available for consultations with the Director of Public Prosecutions in terms section 162 (7);
   5. assist Ministers in piloting bills in Parliament and provide guidance in legal matters to Parliament.
   6. perform such other functions as may be assigned to the Attorney-General by law.
6. The functions of the Attorney-General under subsection (5)(a), (b) (c), (e) and (f) may be exercised by the Attorney-General in person or by subordinate officers acting in accordance with the general or special instructions of the Attorney-General.
7. Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the Government has an interest, shall not be concluded without the advice of the Attorney-General (in person or by subordinate officers acting in accordance with the general or special instruction of the Attorney-General), except in such cases and subject to such conditions as Parliament may prescribe.
8. In the exercise of the functions vested in the Attorney-General by this Constitution, the Attorney-General shall not be subject to the direction or control of any other person or authority.
9. The Attorney-General shall be disciplined or removed from office by the King in terms of the recommendations following an inquiry by a tribunal consisting of a chairman recommended by the Chief Justice and two other members appointed by the King.

78. Prerogative of Mercy

1. The King may, in respect of a person sentenced to death or life imprisonment –
   1. grant a pardon, either free or subject to lawful conditions;
   2. grant to any person a respite, either indefinite or for a specified period;
   3. substitute a less severe form of punishment for any punishment imposed on any person for such an offence; or
   4. remit the whole or part of that sentence, penalty or forfeiture otherwise due to the Government on account of that offence.
2. In the exercise of the powers conferred upon him by subsection (1), the King shall act on the advice of a Committee on the Prerogative of Mercy made up of two persons appointed by the King drawn from the King’s Advisory Council, the Attorney-General, the Minister responsible for justice and a suitably qualified medical practitioner recommended by the Minister responsible for health and appointed by the King..
3. The King shall designate one of the members of the Committee as chairman.
4. The Committee may act notwithstanding any vacancy in its membership or the absence of any member, and the validity of the transaction of business by the Committee shall not be affected by the fact that some person who was not entitled to do so took part in the proceedings.
5. Whenever any person has been sentenced to death by any court in Swaziland other than a court-martial, the chairman shall cause a report on the case by the judge who presided at the trial (or, if a report cannot be obtained from that judge, a report on the case by the Chief Justice), together with such other information derived from the record of the case or elsewhere as the chairman may require, to be taken into consideration at the meeting of the Committee so that the Committee may advise the King whether or not to exercise the powers in terms of subsection (1).
6. The provisions of this section shall not apply in relation to any conviction by a court established under a law of a country other than Swaziland that has jurisdiction in Swaziland in pursuance of arrangements made between the Government of Swaziland and another Government or an international organization relating to the presence in Swaziland of members of the armed forces of that other country or in relation to any punishment imposed in respect of any such conviction or any penalty or forfeiture resulting from any such conviction.
7. Nothing in this section shall be construed as precluding an Act of Parliament from making provision of general application under which any sentence of imprisonment shall be reduced where such conditions (being conditions relating to good behaviour by the person on whom the sentence was imposed whilst serving that sentence) as are prescribed are fulfilled.