Court Diary: Swaziland Constitutional Challenges, Day 2

Salc : Caroline James

Today’s proceedings were focused on discussion about the constitutionality of the Sedition and Subversive Activities Act. This piece of legislation is one of two (the other being the Suppression of Terrorism Act) being challenged in the Swazi High Court on the grounds that some of its provisions unjustifiably infringe the right to freedom of expression.

Adv Jonathan Berger, representing Maxwell Dlamini, Mfanawenkhosi Mntshali, and Dickson Nkambule, spent the morning explaining why the definition of the offence of sedition is unconstitutional. He began by describing the situation in which Dlamini, Mntshali and Nkambule were charged: the three men had been arrested after they were in the vicinity of a planned march to encourage the boycott of the 2013 national elections. Adv Berger highlighted that there was no violence at the march, and that there was no intention to incite violence on the part of any of the three men, and that these charges therefore illustrate how the legislation criminalises participation in peaceful political protest.

Adv Berger described the context of the Swazi sedition legislation, explaining that it had been adopted in 1938 by an English colonial government fearful of any dissent by independence agitators. He then looked at similar legislation in India – under which Mahatma Gandhi had been charged by the British colonial government. The Indian legislation had recently been the subject of a constitutional challenge in which the court found that the offence of sedition had to be read as including a requirement of violence. Adv Berger also referred to the Ugandan offence, which was also similar to the colonial-era Swazi one, and a case in 2010 where the Ugandan Constitutional Court held that the offence was unconstitutional because the definition of “sedition” was so vague that it prevented anyone from knowing where the boundaries of the prohibited conduct began and ended.

Adv Berger highlighted that the vagueness of the offence – which had been identified in the Ugandan judgment – was a serious problem as it prevented any person seeking to peacefully exercise their right to freedom of expression from knowing whether their conduct may be deemed to be seditious. This lack of certainly creates a chilling effect, as people choose not to exercise their right out of fear of criminal sanction.

Adv Berger then took the court through the analysis that is required when determining whether any limitation to a constitutionally protected right is permissible. The sedition legislation clearly limits the right to freedom of expression by criminalizing various forms of expression, and the court is thus required to determine whether that limitation is justifiable in a democratic society. He said that the vague description of the offence means that the legislation lacks sufficient clarity for it to constitute a valid law, and so falls to be declared unconstitutional.

However, even if the court finds that the law is not impermissibly vague, Adv Berger explained that the court needs to determine whether the law is a proportional limitation to the right to freedom of expression. He said that the effects of the law on freedom of expression are so severe that it cannot be seen to be a proportional way of achieving the goal of the legislation (which is to protect public order). Adv Berger said that the inclusion of the requirement of violence into the definition would assist in making the offence constitutional. That would mean that the offence of sedition would only cover conduct that was violent, or that amounted to incitement to violence. He then explained that the court was empowered to read this requirement into the definition in the act.

Adv Peter Hathorn (who had provided the majority of his argument yesterday) then stood up to discuss the constitutionality of the subversion offence in the Sedition and Subversive Activities Act. Adv Hathorn’s clients had been charged under the terrorism and sedition legislation, and, unlike Adv Berger’s, had been charged with subversion.

Adv Hathorn discussed commissions established in Britain, Canada and New Zealand which had all held that offences such as sedition and subversion must include a requirement of violence for them to be constitutional. He also discussed the interests that the offence of subversion is designed to protect, and said that the Swazi government had provided no justification in this case for why these interests need to be protected by this legislation. He also highlighted the fact that, like with sedition, the definition of the offence is vague and has the effect of criminalizing peaceful expression.

At this juncture, the applicants in all four cases indicated that they had addressed all the issues they wished to. Counsel for the state respondents, Adv Greg Harpur SC, then said that he believed that there was not sufficient time for him to finish his arguments in the allotted time period, and so requested a postponement. After discussions with the judges, it was decided to postpone the matter to 8 and 9 October for the respondents’ argument and the applicants’ reply.

SALC will be in court in October, and will provide updates on the conclusion of this case.