Court Diary: Swaziland Constitutional Challenges, Day 3

Salc : Staff Writer

Caroline James

On Monday, 8 February 2016, the Swazi High Court continued hearing applications challenging the constitutionality of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act. The case began in September 2015, when oral argument by the applicants’ legal representatives took place.

On Monday, Adv Greg Harpur SC began arguing for the state respondents – the Prime Minister, the Minister of Justice, the Director of Public Prosecutions, and the Attorney General. He began by explaining the context in which the Swazi Suppression of Terrorism Act was adopted, and said that it must be seen in light of the attacks in the United States on 11 September 2001, and the global drive to prevent terrorism that followed.

The main thrust of Adv Harpur’s argument was that the challenge to the constitutionality of the acts is abstract – that is, it is a challenge divorced of the facts of the applicants’ criminal trials and the applicants are asking the court to decide the constitutionality of the legislation without reference to those factual contexts. He argued that the applicants should either have pleaded guilty to the charges, or to at least have agreed on a set of facts with the respondents. In this respect, Adv Harpur made consistent reference to the South African Constitutional Court case of Savoi v National Director of Public Prosecutions, in which the Court had held that Courts correctly treat abstract challenges with disfavour. Savoi dealt with organised crime – a type of crime that Adv Harpur explained was similar to terrorism because of its complex nature – and Adv Harpur said that the legislation has, necessarily, to be broad so as to adequately address that complex nature.

Adv Harpur then moved on to discuss the relationship of the terrorism legislation to the right to freedom of expression, and said that this question must be looked at within the context of the Swazi constitutional framework. He said that because the Swazi Constitution’s protection of freedom of expression includes internal modifiers that stipulate that the protection does not extend to certain types of conduct (for example, expression that puts national security at risk), the right itself is significantly constrained. He said that, given this, the applicants have not been able to show that their right to freedom of expression has been infringed because it is not clear that their conduct falls within the category of conduct protected by the right.

In analysing the Suppression of Terrorism Act itself, Adv Harpur’s main argument was that it was similar to legislation around the world, and to a model law on counter-terrorism that was drafted by the Commonwealth Secretariat in the wake of the 11 September 2001 attacks. One aspect which was similar to these international pieces of legislation was the process by which organisations can be classified as terrorist groups. This meant, he argued, that there is nothing objectionable about the Swazi legislation.

Adv Harpur also said that the legislation allowed for the review of a decision to declare a group a terrorist entity, and that any person charged with support for a terrorist group would be able to challenge that categorisation.

Adv Harpur stated that the fact that conduct that does not constitute terrorism may be prosecuted in Swaziland does not mean that the law itself is bad; these types of over-zealous prosecutions would be corrected by a Court, which would acquit any person wrongly accused. At this point, Judge Annandale asked whether Adv Harpur was saying that the overbroad legislation is permissible because a court would not convict anybody wrongfully charged with a terrorist offence – and Adv Harpur confirmed this, saying that the courts have a duty to prevent abuse of power.

In response to the applicants’ argument that the right to freedom of expression should be generously interpreted, Adv Harpur said that all rights in Swaziland should be generously interpreted. This meant, he argued, that the rights to life and protection of property should also be generously interpreted: it is better for someone to be alive and not maimed as a result of a terrorist bomb than allowing terrorists to speak freely, and so the right to freedom of expression in the context of terrorism should be limited.

Adv Alan Lamplough set out the respondents’ arguments in respect of the Sedition and Subversive Activities Act. He began by explaining that the legislation explicitly excludes certain categories of conduct from its prohibitions, and submitted that these exclusions mean that all political speech is allowed under the law. He responded to the applicants’ argument that the words used in the legislation are impermissibly vague but accepting that they are old English terms, but said that they have been the subject of judicial interpretation and so are capable of clear interpretation.

Adv Lamplough then discussed the purpose of the sedition legislation, and said that it was to protect the authority of the state. He said that this was a perfectly legitimate purpose, and one which was necessary in society. He compared the offence of sedition to that of contempt of court – an offence which is designed to protect the authority of the court – and said that there is no argument that judicial authority is precious and deserving of protection. Adv Lamplough also said that because the purpose of the offences under the Sedition and Subversive Activities Act are to protect the authority of the state, it cannot criminalise only violent conduct because non-violent conduct can also threaten the state’s authority.

Adv Lamplough looked at the argument that the legislation infringes the right to freedom of expression, and said that given the narrow ambit of what is prohibited by the legislation it isn’t clear that there has been an infringement at all. He did say that if the court found that there was an infringement, then that infringement should be deemed to be justifiable because of that narrow ambit of prohibited conduct. He acknowledged that calling for lawful political change and for a boycott of national elections – conduct for which the applicants were charged with sedition – should not be deemed to be prohibited by the Act.

At this point, the respondents finished their argument.

Adv Myron Dewrance for Mlungisi Makhanya – one of the applicants – began the replying arguments. He explained that the applicants’ case is not abstract, and that they have a constitutional right to bring this applicant in terms of the Constitution which permits individuals whose rights are “likely” to be infringed to approach the court.

Adv Dewrance’s main argument was that the state must bear the onus to prove the reasonableness of the limitation to the right to freedom of expression. This was an area of contestation between the applicants and respondents as the respondents argued that there is no such onus on the state. However, Adv Dewrance referred to a case in the Swazi courts in which the judge held that the onus does fall on the state to show that there limitation is reasonably required, before it shifts to the applicants to show that the limitation is not reasonably justified in a democratic society. Adv Dewrance said that this is in line with the international approach.

Judge Mamba asked Adv Dewrance whether it would not have been better for his client – who had been charged with terrorism after wearing a t-shirt with branding for the People’s United Democratic Movement (PUDEMO) which has been declared a terrorist group – to have argued in his criminal trial that wearing a t-shirt simply cannot constitute “support” for a terrorist group in terms of the legislation. Adv Dewrance repeated his assertion that the applicants are constitutionally permitted to ask the court for the relief they seek, without having to wait for the commencement of their criminal trial.

Judge Annandale asked Adv Dewrance whether the terrorism laws criminalise mere membership of a terrorist group, or whether only a physical manifestation of the support for that group would be an offence. Adv Dewrance said that his client had only been charged with the support of an organisation through that physical manifestation.

Adv Peter Hathorn for Mario Masuku and Maxwell Dlamini then began his argument in reply. He first clarified that membership of a group that has been declared to be a terrorist one is an offence under the Suppression of Terrorism Act, and carries a ten year prison sentence. He said that therefore it is not only the physical manifestation of support for such a group that leads to criminal prosecution, and said that this means that any challenge to a group’s designation as terrorist brought by a member of the group may be highly prejudicial to that member.

Adv Hathorn then pointed out the irony in the respondents’ argument that they have argued that the Constitution should be interpreted within the Swazi context because it is a uniquely Swazi document, but have still relied heavily on foreign jurisprudence. Adv Hathorn explained that this was particularly ironic when the respondents rely on the South African Constitutional Court case of Savoi for authority that the application is an abstract one when the Swazi Constitution – unlike the South Africa one – explicitly allows constitutional challenges to be brought when rights are “likely” to be infringed. In response to repeated questions from the judges regarding why the applicants did not bring the constitutional challenges during their criminal trial, Adv Hathorn reiterated the point first made by Adv Dewrance that the Constitution permits the bringing of an application when rights are likely to be threatened. He expanded on this by saying that as the applicants have chosen to exercise their right under the Constitution to bring such a challenge the Court cannot punish them for doing so by saying that they should have challenged the legislation within their criminal trial. He said that given the choice of proceedings taken by the applicants, the court is bound to make the constitutional determination in this matter.

Adv Hathorn also agreed with Adv Dewrance that the onus of proving that a limitation to the right is reasonably required must be on the state – not least because the information relating to why the limitation is required is peculiarly within the knowledge of the state.

At this stage, the Court adjourned for the day. Adv Hathorn will continue with his replying argument on Tuesday morning, and Adv Berger will reply to Adv Lamplough in respect of the Sedition and Subversive Activities Act.