60. Article 10 of the African Charter provides that "every individual shall have the right to free association
provided that he abides by the law". And Article 11 provides that "every individual shall have the right to
assemble freely with others. The exercise of this right shall be subject only to necessary restrictions
provided for by law..." . In communication 225/9813 the African Commission, quoting its Resolution on the
Right to Freedom of Association held that the regulation of the exercise of the right to freedom of
association should be consistent with state's obligations under the African Charter and in regulating the use
of this right, the competent authorities should not enact provisions which would limit the exercise of this
freedom. That the competent authorities should not override constitutional provisions or undermine
fundamental rights guaranteed by the constitution and international standards. The [African] Commission
reiterated this in communications 147/95 and 149/9614 and concluded that this principle does not apply to
freedom of association alone but also to all other rights and freedoms enshrined in the [African] Charter,
including, the right to freedom of assembly.
61. Admittedly, the Proclamation restricting the enjoyment of these rights was enacted prior to the coming
into effect of the [African] Charter. However, the Respondent State had an obligation to ensure that the
Proclamation conforms to the [African] Charter when it ratified the latter in 1995. By ratifying the [African]
Charter without taking appropriate steps to bring its laws in line with the same, the African Commission is of
the opinion that the State has not complied with its obligations under Article 1 of the [African] Charter and in
failing to comply with the said duty, the prohibition on the establishment of political parties under the
Proclamation remained effective and consequently restricted the enjoyment of the right to freedom of
association and assembly of its citizens. The [African] Commission therefore finds the State to have
violated these two articles by virtue of the 1973 Proclamation.
62. The complainant also alleges violation of Article 13 of the African Charter claiming that the King's
Proclamation of 1973 restricted participation of citizens in governance as according to the complainant the
import of Sections 11 and 12 of the Proclamation is that citizens can only participate in issues of
governance only within structures of the Tinkhundla. In communications 147/95 and 146/96 Sir Dawda
Jawara/The Gambia the [African] Commission held that the imposition of the ban on former Ministers and
Members of Parliament is in contravention of their rights to participate freely in the government of their
country provided for under Article 13(1) of the [African] Charter. Also the ban on political parties is a
violation of the complainant's right to freedom of association guaranteed under Article 10(1) of the [African]
Charter.
Holding
From the above reasoning, the African Commission is of the view that the Kingdom of Swaziland by
its Proclamation of 1973 and the subsequent Decree No. 3 of 2001 violated Articles 1, 7, 10, 11, 13
and 26 of the African Charter.
The [African] Commission hereby recommends as follows:
• that the Proclamation and the Decree be brought in conformity with the provisions of the African
Charter;
• that the State engages with other stakeholders, including members of civil society in the conception
and drafting of the New Constitution; and
• that the Kingdom of Swaziland should inform the African Commission in writing within six months on
the measures it has taken to implement the above recommendations.
Adopted by the African Commission at its 37th Ordinary Session held in Banjul, The Gambia, from
27th April to 11th May 2005.
1 Communication 147/95 Sir Dawda K. Jawara / The Gambia.
2 John Dugard (1992) International Law, a South African perspective, Kenwyn Juta and Co. Ltd., p. 266.
See also DJ Harris (1991) Cases and Materials on International Law (4th Edition) Sweet and Maxwell:
London, p. 747.
3 Ibid.
4 Sir Dawda Jawara / The Gambia.
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