Challenging anti-terrorism laws in Swaziland: When the judiciary becomes the stumbling block

Author: Kudzani Ndlovu
Part-time lecturer, Lupane State University, Zimbabwe

On 8 and 9 February 2016 the pro-democracy movement in Swaziland converged at the High Court in Mbabane to attend a hearing on the constitutionality of the country’s two draconian and repressive laws – the Suppression of Terrorism Act No. 3 of 2008 (STA) and the British colonial era 1938 Sedition and Subversive Activities Act (Sedition Act) – which continue to be used by the state to stifle opposition and silence critics of the authoritarian monarchy.

Many, especially those outside Africa’s last absolute monarchy, had labelled this hearing as ‘historic’ but local activists remained less optimistic knowing that most of the country’s judges have sold their independence for thirty pieces of silver. The King’s influence in the appointment of judges has seriously undermined the independence of the judiciary. The Constitution of Swaziland provides that the judges are appointed by the King after consultation with the Judicial Service Commission (JSC). Judges are answerable to the King and hence they can never claim to be independent. It will only take rabid denialists and anarchists to argue that there is hope of an independent judiciary in Swaziland under the current system.

The state continues to use the two draconian pieces of legislation to shield the monarchy and the government from criticism. The STA and the Sedition Act have been labelled by international human rights organisations as being flawed and inherently repressive.

International human rights organisations have repeatedly expressed concerned that certain provisions in the STA threaten human rights, adding that ‘other sections contain impermissible breadth/imprecision, with consequent threats to fundamental human rights.’ Amnesty International in particular has clearly stated that the STA is not compatible with Swaziland’s human rights obligations contained in the Constitution and other international treaties which have been ratified by the kingdom.

The STA has been criticised for several reasons including its failure to restrict the definition of ‘terrorist act’ to the threatened or actual use of violence against civilians,  the failure of the definition to meet the requirements of legality, that is, accessibility, precision, applicability to counter-terrorism alone, non-discrimination and non-retroactivity. More importantly, the definition of offences outlined in the STA are overbroad and imprecise that they have been activated by the government to excessively clamp down on the opposition and the prodemocracy movement.

Likewise, the Sedition Act has also been criticised for being overly overbroad and placing the onus on the accused to prove that their alleged acts, utterances or documents published were not done with ‘seditious intention’, contrary to universally accepted standards of presuming an accused person innocent until proven guilty. The Sedition Act has equally been used by the government to intimidate and incarcerate perceived opponents. It is telling that the current regime still heavily relies on an act that was enacted in 1938 at the height of colonial dominance, an era when there was total disregard for democratic principles and human rights.

The two pieces of legislation – the STA and the Sedition Act – directly infringe on the rights and freedoms expressly articulated in Section 23, 24, and 25 of the Swaziland Constitution of 2005. These rights include the freedom of conscience, freedom of expression and information, and freedom of assembly and association.

Members of the opposition and prodemocracy activists have felt and continue to feel the full wrath of these draconian and repressive pieces of legislation. While political parties in Swaziland were banned by King Sobhuza’s 1973 Proclamation – and this proclamation has not been repealed – in 2008 the Peoples United Democratic Movement (PUDEMO), PUDEMO’s youth wing, the Swaziland Youth Congress (SWAYOCO), the Swaziland Solidarity Network (SSN) and other groups were proscribed as terrorist organizations under the STA. The proscription followed a bomb blast near a bridge along the Mbabane-Manzini highway on 21 September 2008- two days after the country’s parliamentary elections. Since then PUDEMO members have been in and out of court facing ridiculous charges such as putting on t-shirts with party logos and chanting PUDEMO slogans (or terrorist slogans as the government refers to them).

It is against this background that PUDEMO leaders President Mario Masuku and youth leader Maxwell Dlamini – both charged under the STA – and Thulani Maseko, a prominent human rights lawyer and activist who is facing sedition charges since 2009, decided to challenge the constitutionality of these laws. The hearing before full bench comprising Judge Jacobus Annandale, Judge Nkululeko Hlophe and Judge Mbutfo Mamba, which has dragged on since September 2015, was concluded on 9 February with the judgement being reserved.

Although the judgement is expected in the next weeks or months, it is the conduct of the judges during the trial which left many activists less optimistic about the verdict. All the three judges kept emphasizing that the applicants should have waited for the trial court to conclude all the cases before approaching the highest court. The judges are seemingly taking advantage of the fact that all these matters are still before the trial court and want to use that to escape from their obligation to determine whether these pieces of legislation are compatible with the Constitution. Section 35 of the Constitution grants citizens the right to approach the High Court for redress if they allege that any of their rights have been, are being or likely to be contravened. So for the judges to suggest that the applicants should have waited until the matters had been decided by the trial court is doubly shocking. One expects judges – as the custodians of the law – to know and understand the Constitution.

It is important to note that this conduct by these three judges is unsurprising for several reasons. First, these judges are directly answerable to the King and will do everything to protect him. Second, referring the matter back the trial court provided an easy escape route for the judges. This will push back the burden to the judges in the lower courts. By doing so, the three judges will avoid criticism from both the power bloc and those fighting against these draconian pieces of legislation. The monarchy has maintained a tight grip on the judiciary and this has resulted in a breed of judges with utter disregard for constitutionalism.

As the pro-democracy movement awaits the outcome of this hearing, the road ahead seems to be a long one. The state will continue to use the STA and the Sedition Act to terrorise opposition figures and those fighting for a democratic Swaziland.

About the Author:
Kudzani Ndlovu holds an MPhil in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria, South Africa. He is also a part-time lecturer at Lupane State University in Zimbabwe