Court Diary: Swaziland Constitutional Challenges, Day 4

Salc : Staff Writer

Caroline James

On Tuesday, 9 February 2016 the High Court in Swaziland concluded the hearing on the constitutionality of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act.

Adv Peter Hathorn continued his argument in reply, and began by emphasising that the state respondents’ arguments that the Swazi terrorism law was similar to the Canadian law did not mean that that was the only way to respond to terrorist threats. He also said that the state’s argument that the legislation’s provisions on the power to designate groups as terrorist was a necessary way to inform the public of terrorist threats was also not the only way to do so and other countries, such as South Africa, had less intrusive ways of informing citizens of terrorist threats.

Adv Hathorn’s main argument in reply was in relation to his argument that the terrorism law – and specifically the power given to the Attorney General and the Minister of Justice to declare organisations terrorist groups – infringed the fair trial right of the presumption of innocence. His argument is that because a group can be declared terrorist if the Attorney General merely “has reason to believe” it is involved in terrorist activity that standard is far weaker than the criminal standard of beyond a reasonable doubt. This is problematic because an accused can be convicted of supporting a terrorist group simply on the basis that an organisation has been declared to be a terrorist group.

Adv Hathorn said that the respondents were attempting to get the court to not decide this point because they argued that it had not been correctly pleaded (ie that “presumption of innocence” did not appear in the founding affidavits). Adv Hathorn said that the applicants had argued that the terrorism law infringes their right to a fair trial right from the very beginning, and that the presumption of innocence is a fundamental aspect of the right to a fair trial, and said that the respondents’ argument on this point indicates that they do not want the merits of it to be determined. He argued that the problematic aspect of the offence of supporting a terrorist group was that the Court is bound to abide by the designation by the Attorney General and Minister of a group as terrorist when that designation is made on an extremely low standard. He said that the Attorney General’s office had acknowledged in the Founding Affidavit in the present case that the nature of terrorism means “there is no room for solid evidence to be obtained” before a group is declared to be terrorist. Judge Mamba said that the case should be determined on the content of the legislation and not on comments made by the Attorney General in the papers, but Adv Hathorn said that the words of the legislation themselves are deeply problematic. He said that it is concerning that the Attorney General and Minister, as members of the executive, are able to make decisions which impact on judicial determinations and that this is inconsistent with the constitutionally entrenched principle of judicial independence.

The Court continually questioned Adv Hathorn on whether this was the appropriate time to determine the constitutionality of the legislation, and Adv Hathorn referred the Court to all the applicants’ argument that the Swazi Constitution permits the applicants to bring such a case and obliges the Court to determine the application before the criminal trial commences. Judge Annandale also asked Adv Hathorn what would happen if the Court declared the provisions relating to the criminalisation of support for terrorist entities, and Adv Hathorn replied that it would be within the court’s power to make an order that would be fair to all parties.

Adv Jonathan Berger then replied to the arguments put up by the respondents on the Sedition and Subversive Activities Act. His first point was in response to the Court’s questions on whether the determination of the constitutionality of the legislation would be best left to the trial court. He reiterated that because the Constitution specifically allows an individual to approach the court when their rights are “likely” to be threatened, it is perfectly legitimate for this application to be made and for this Court to determine the matter. He compared the Swazi Constitutional provision to the comparative one in the previous Zimbabwean Constitution which also permitted a court application if rights were likely to be infringed. However, one difference between the two constitutional provisions was that the Zimbabwean one gave the Court a discretion to decide not to hear the constitutional issue. Adv Berger argued that the Swazi constitution drafters must have chosen not to include this discretion in the Constitution, and that this strengthened his argument that this Court hearing the present matter must make a determination on the constitutional issues. He referred to the Zimbabwean case of Chavunduka v Minister of Home Affairs and said that in that case the Court decided the constitutional question – even though they could have declined to do so – because they believed it was of critical importance that an accused person have the constitutionality of the charges they face determined by a court.

Adv Berger also said that in the case in which he appeared it was simply not practical for his clients to wait for the criminal trial to begin before raising the constitutional issues as no steps had been taken in their case for over a year: they had been arrested and released on bail but no trial date had been set. There was no other option for them but to bring the constitutional application. In response to questions from Judge Hlophe, Adv Berger said that the Constitution obliges the Court to determine this matter irrespective of whether there may have been a more appropriate manner in which to bring the case before court. Judge Annandale also said that there may have been other remedies available to the applicants, but Adv Berger reiterated that his clients’ trial had been stagnant for over a year and that because the applicants had been charged multiple times under the legislation it made sense for this broad constitutional challenge to be brought as opposed to piecemeal challenges in the criminal trials.

Adv Berger then submitted that in light of Adv Lamplough’s statement that political speech (such as calling for the lawful boycott of an election) is not seditious, the prosecution would be acting in bad faith if it was to continue with the criminal charges against his clients. (Adv Berger’s three clients were arrested and charged under the Sedition and Subversive Activities Act after allegedly participating at a rally calling for the boycott of the 2013 National Elections). At this point Judge Mamba asked why, if Adv Berger’s clients’ conduct did not fall within the ambit of prohibited conduct under the legislation, the challenge was not to the implementation of the legislation. Adv Berger responded by saying that the argument of constitutional invalidity is based on the submission that the offences and the defences are impermissibly vague and do not allow citizens to know what conduct constituted offences under the act. He also repeated that, in light of repeated charges being brought against the applicants, clarity on the legislation itself is necessary.

Adv Lamplough had argued that the language used in the Sedition and Subversive Activities Act is not vague because it has been interpreted by various courts around the world. Adv Berger said that this was not sufficient because many of these court decisions were from decades ago and had been determined in countries without constitutional guarantees of freedom of expression. Judge Mamba again asked whether this indicated that the matter would be best left to the trial judge for interpretation of the statute. Adv Berger said that such an approach would expect people to run the risk of criminal trials and possible conviction before learning whether their conduct would constitute an offence under the law. He said that most people would err on the side of caution, and not engage in activity which may amount to sedition, and that therefore the uncertainty in the legislation creates a chilling effect on the conduct of ordinary people in Swaziland.

Adv Berger reiterated the point made by advocates Dewrance and Hathorn that the onus to prove that a limitation to the right to freedom of expression is reasonably required must fall on the state respondents. He argued that it is only if the respondents discharge this onus (that is, they show that the limitation is required) that the applicants would have to show that the limitation is not justifiable in a democratic society. He said that in the present case the state respondents have provided no evidence to show that there is a need for the limitation.

The argument then turned to the consequences of an Indian case Kedar Nath Singh v State of Bihar which the respondents and applicants relied on. Adv Berger said that the proper interpretation of this case is that the court recognised that the offence of sedition was overbroad in the legislation, and that the only way to make it constitutional was to read it down so as to include a requirement of violence. He said that this is very different to the argument made by the respondents that the Indian Court found that there was an interpretation of the offence that would pass constitutional muster. Adv Berger also said that the respondents’ reliance on the South African Supreme Court of Appeal decision in S v Rudolph as authority for sedition being constitutional in South Africa was misplaced. He said that the Rudolph case did not focus on sedition, and that in any event the South African Court made it clear that it was understanding the term ‘insurrection’ in the context in which it is used in the South African Constitution (in relation to a state of emergency) which is far narrower than it would be understood in Swaziland.

Adv Berger also pointed out that the Constitutional provisions relating to citizens obligations that were relied upon by the respondents are part of a non-enforceable chapter in the Swazi Constitution.

Adv Hathorn then made his replying submissions on the Sedition and Subversive Activities Act. He aligned himself with Adv Berger in respect of the sedition offence, but expanded on Adv Berger’s arguments because his clients, unlike Adv Berger’s, have been charged with subversion in addition to sedition. His main argument was that the defences included in the sedition offence are not included in the subversion offence, and so Adv Lamplough’s submission that political speech is permitted under the legislation does not apply in respect of subversion. He also said that the defence that political criticism is allowed if it is made in good faith and for the purpose of remedying defects does not apply to comments made with no intention to remedy any defects, and so the legislation criminalises simple comments made in criticism of government officials. He gave the example of someone complaining about the service they received at a government department, and said that under the Act this would be criminalised.

Adv Hathorn also reiterated that there is a significant body of jurisprudence from around the world that has found that the offence of sedition is overbroad. He said that the respondents cannot refer only to judgments that have found constitutional interpretations of the offence without acknowledging that there have also been a number of courts that have found the offence to be unconstitutional.

This marked the conclusion of all oral submissions, although Judge Annandale did say that any party would have seven days to file any supplementary written submissions. The Court adjourned and reserved judgment.