Small State and Big Challenges: Eswatini’s Authoritarian King and the (Mis)uses of Swazi Law and Custom

Sinethemba Memela

Sinethemba Memela is a PhD candidate at the Faculty of Law & Justice, University of New South Wales, Australia.

National myths are often understood as bringing harmony and a common identity to a polity, supporting nation-building and the promotion of peace and stability. However, in Eswatini, the national myth created by the Monarchy is that Swazis are a peaceful people and therefore must have a common posture of acquiescence. The myth of being peaceful is then used to justify the crushing of political dissent and a common desire for liberation from a political system understood as an absolute monarchy, deeming the people’s democratic demands as being ‘unSwazi’.   

Eswatini self-defines as a ‘unitary, sovereign, democratic Kingdom’ in its Constitution. However, closer examination of the operative constitutional culture in the country reveals a more discordant system, in which Eswatini law and custom, as understood by the Monarchy, cannot be reconciled with the liberal constitutional commitments set out in the Constitution. My chapter in the volume on Small States Constitutionalism studies key constitutional moments in Eswatini since the passing of its 2005 Constitution to show how legal pluralism has been (ab)used by the Swazi King to consolidate political power and stifle dissent, which are both indicators of authoritarianism.

Postcolonial states experience political dislocation resulting from the colonial encounter, often leading to plural and hybrid legal regimes blending liberal democracy inherited from the colonists and diverse forms of autochthonous, traditional and customary legal systems. Eswatini is no exception. As a former British protectorate that attained independence in 1968, the country faced the task of building a post-colonial identity for itself. In 1973, shortly after independence, the then King decided to abolish the country’s independence Constitution and ban political parties, labelling them unSwazi for the ways in which they created political enmity leading to social disharmony (for further discussion on Eswatini’s constitutional history, see this book). Eswatini’s political party ban remains in place, and popular democracy is instead exercised through the Tinkhundla system, whereby citizens vote for their local representatives on an individual basis following the King’s approval of the candidates.

Eswatini’s 2005 Constitution was drafted over a nine-year period beginning in 1996, following a 32-year interval in which the country had no formal constitution. The composition of the Constitutional Review Process was subjected to multiple political and legal challenges, and questions about its legitimacy continue for reasons including the failure to include public participation in the process.

Demographically, Eswatini is an ethnically homogenous country with a majority rural population and the highest burden of HIV/AIDS in the world. My chapter shows that these factors alone make it a vulnerable state, and that its vulnerability is compounded by an authoritarian King who rules absolutely with assistance from the various branches of government, including the judiciary. Swati law and custom are invoked as the source of his power and of the authority which makes his decision-making unquestionable and non-justiciable.

While Chapter III of Eswatini’s 2005 Constitution guarantees several fundamental rights, including equality, liberty and expression and assembly, when a wave of pro-democracy protests engulfed Eswatini in 2021 and 2023, dozens of protestors were killed. During those protests, citizens were expressing their disillusionment with the country’s political system (where democracy is absent) and with the asymmetries in the distribution of the country’s economic resources in favour of the King and his family.

Section 141 of the Constitution also guarantees the independence of the judiciary, and there was a period where the King did experience challenges from Swazi judges. In 2002, six senior judges resigned because the King refused to comply with their orders. In 2015, the King dismissed the Chief Justice, Michael Ramodibedi, and attempted to have him arrested. The King also dismissed a number of other judges, including one who challenged his dismissal before the African Commission on Human and Peoples’ Rights and succeeded, with the Commission ruling that the judge’s dismissal violated the principle of judicial independence and the African Charter on Human and Peoples’ Rights. Following these events, Swazi judges have been more acquiescent in enforcing the King’s desires, facilitating a constitutional culture where the country’s legislative, executive and judicial power effectively rests with the King.  

Judicial collaboration with the authoritarian King has become entrenched, with the Chief Justice issuing a Practice Directive in 2011 banning all legal proceedings against the King and thus closing all avenues to challenge any conduct of the King. As a result, the King has been able to turn Swazi law and custom into a vehicle for despotism and has relegated its communitarian and collaborative elements to irrelevance, with the support of the judiciary. Swazi scholars Angelo Dube and Sibusiso Nhlabatsi have critiqued Swazi courts for cherry picking elements of Swazi law and custom to provide legal justification for the King’s penchant for authoritarianism while ignoring the democratic demands of Swazi law and custom, and legal systems.

Eswatini engages in significant legal borrowing from its larger neighbour, South Africa, despite differences in their respective autochthonous constitutional systems. One might expect this because of a perception that Eswatini is a small state existing in the shadow of its larger, economically and politically stronger neighbours. However, South Africa and Eswatini, both countries that have experienced forms of British colonialism, have developed a more egalitarian relationship with opportunities for mutual learning and collaboration. In my chapter, I show how Eswatini engages in constitutional borrowing from South Africa while at the same time also resisting it, with judges asserting the legal independence of the country. I suggest that the legal borrowing seen between South Africa and Eswatini might also be owed to the fact that a notable number of legal professionals in Eswatini are legally trained in South Africa. South Africa is a bigger country, with mature governance institutions and a more liberal rights culture, so it is not surprising that there is also resistance to the wholesale adoption of its constitutional jurisprudence.

While not discussed in the chapter in the Small State Constitutionalism book, most recently, Eswatini has become a receiving country for migrants who have been deported from the United States of America (USA). The deportees received by Eswatini were denied access to legal representation, prompting rights groups to institute legal proceedings before the High Court of Eswatini, though the judge assigned to the matter did not appear and provided no reason for their failure to appear. The recent use of Eswatini to facilitate legally dubious deportations, which have been legitimated by the Supreme Court of the USA, may be linked to the country’s reputation for having a King who rules absolutely, making it an attractive destination for exporting human rights abuses. What becomes clear is that legal systems, whether principally based on traditional law and custom or liberal democracy, are malleable to misuse as they rely on judges and political actors committed to the rule of law and constitutional democracy to be effective at promoting the responsible use of political power. 

This blog post is part of the IACL Blog symposium Small State Constitutionalism, which presents some of the key arguments made in chapters of the newly published edited collection: Elisabeth Perham, Maartje De Visser and Rosalind Dixon (eds), Small State Constitutionalism (Hart Publishing, 2026).

Sinethemba Memela is a PhD candidate at the Faculty of Law & Justice, University of New South Wales, Australia.

Suggested citation: Sinethemba Memela, ‘Small State and Big Challenges: Eswatini’s Authoritarian King and the (Mis)uses of Swazi law and Custom’ IACL-AIDC Blog (12-02-2026) Small State and Big Challenges: Eswatini’s Authoritarian King and the (Mis)uses of Swazi Law and Custom — IACL-IADC Blog