Swaziland’s Supreme Court
has reinstated an appeal from the government against a High Court ruling that
parts of the Suppression of Terrorism Act and the Sedition and Subversive
Activities Act are unconstitutional.
It had been tabled for
October 2017 but the government’s representatives did not attend.
The Swazi Observer reported on Wednesday (7 March 2018) that Supreme
Court Judge Phesheya Dlamini ruled there had been an error at the time and he reinstated
the case at a date yet to be set.
Both Acts have been used by successive governments of King Mswati III who rules Swaziland as sub-Saharan Africa’s last absolute monarch to stop advocates for democratic reform. Political parties are banned from taking part in elections and the King chooses the Prime Minister, the Cabinet and all senior judges.
Both Acts have been used by successive governments of King Mswati III who rules Swaziland as sub-Saharan Africa’s last absolute monarch to stop advocates for democratic reform. Political parties are banned from taking part in elections and the King chooses the Prime Minister, the Cabinet and all senior judges.
In September 2016,
Swaziland’s High Court ruled that sections of the Suppression of Terrorism Act
and the Sedition and Subversive Activities Act were unconstitutional.
Judges ruled that the Acts
contravened provisions in the Constitution on freedom of expression and freedom
of association.
The ruling was delivered after
years of campaigning to have the Acts overthrown.
Thulani Maseko, a human
rights lawyer; Maxwell Dlamini, Swaziland Youth Congress secretary-general;
Mario Masuku, president of the People’s United Democratic Movement (PUDEMO) and
Mlungisi Makhanya, PUDEMO secretary-general, brought four actions against the
Swazi state.
Responding at the Swazi High Court were the Prime Minister, the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Attorney General.
Responding at the Swazi High Court were the Prime Minister, the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Attorney General.
Justice Mbutfo Mamba and
Justice Jacobus Annandale
ruled that various sections of the Acts were inconsistent with the
Constitution. They said S14(1)(b) of the Constitution, ‘guarantees and declares
freedoms of conscience, expression and peaceful assembly and association as
fundamental human rights’.
The applicants had been
charged with offences under the Suppression of Terrorism Act because they are
members of PUDEMO which is a banned pro-democracy organisation in Swaziland.
The judges’ ruling stated, ‘They were found wearing T-shirts and berets of such
organization and also chanting its slogans.’
The judges also stated that
the Act did not describe what a terrorist was. ‘Generally speaking, most of the
offences criminalized as terrorist acts in the Act are covered by ordinary
criminal law,’ they stated.
The judges stated the fact
that the applicants had been charged for their involvement with PUDEMO, ‘is
plainly a matter that affects or impacts on their right to freedom of
association and opinion.
‘For whatever reason, their
views on the policies, aims, ideals and objectives of PUDEMO have drawn them to
it. The wearing of any apparel of paraphernalia associated with PUDEMO, may or
may not, depending upon the particular circumstances of the case, be said to be
a crime under the Act.
‘The bottom-line in these
proceedings, however, is that their association, involvement with this
organization or entity has resulted in them being charged under the Act. In a
word, they have been told, PUDEMO is a specified [banned] entity, and your
belonging to it or chanting its slogans and wearing its apparels is a crime in
terms of the Act.
‘Clearly, their rights to
freedom of association and opinion are adversely affected by this.’
The judges also stated that the law or regulations that declared PUDEMO a banned entity interfered with the constitutional right to freedom of association, but such rights were not absolute and they may be subject to certain restrictions or limitations.
The judges also stated that the law or regulations that declared PUDEMO a banned entity interfered with the constitutional right to freedom of association, but such rights were not absolute and they may be subject to certain restrictions or limitations.
The judges stated that the applicants who were members
of the banned PUDEMO were, ‘declared, in effect, terrorists or at least persons
engaged or involved in terrorist acts or criminals before they are given the
opportunity to be heard on the issue. This cannot be right. It is against the
rules of natural justice or procedural fairness or administrative justice that
a person be condemned before he has been given the opportunity to be heard on
the issue under consideration.’
A third High Court Justice Nkululeko Hlophe made a dissenting judgement.
See also
SCRAP
SWAZI TERROR ACT – AMNESTY
NO AMNESTY IN ‘TERROR’
CASES
SWAZI TERROR ACT STOPS FREE SPEECH
‘OPPOSITION
TO KING IS TERRORISM
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