On Tuesday, 7 September 2015, the Swazi High Court began hearing the constitutional challenges brought against the Suppression of Terrorism Act and the Sedition and Subversive Activities Act. This hearing was a consolidation of four separate cases – each of which involved criminal charges in terms of these laws which had been brought against activists who had expressed opinions against the Swazi governmental system. What characterized the activities that led to these charges was that they were all peaceful.
The hearing was before a full bench, presided over by Judge Annandale, with Judges Mamba and Hlophe. The arguments began with Adv Rudolph Jansen, representing Mlungisi Makhanya who had been charged with terrorism, sedition and subversion for wearing a t-shirt with the logo of a banned organization and chanting slogans in support of that organization.
Adv Jansen highlighted the importance of constitutionalism, and how, even though all countries’ constitutions have elements that represent their local character, there is a global recognition of the need to protect fundamental rights. He explained how, although there is a sense that national security considerations often lead us to beliee that individual rights can be sacrificed for the need to protect the security of the state, the converse is actually true: it is when there are national security concerns that rights need to be most zealously protected. He remarked that this is why bills of rights and other instruments protecting fundamental rights often emerge out of oppressive and autocratic regimes. He also called on the court to uphold its judicial duty of carving out a political space to ensure that individual rights are respected.
Adv Jansen then analysed the provisions of the Suppression of Terrorism Act that he is challenging. He explained that the inclusion of conduct that is a “threat to national security” in the definition of terrorist act is impermissible because “threat to national security” is too vague and broad to provide an adequate description of conduct that is prohibited. He said this gives law enforcement officials carte blanche in determining what activities constitute terrorism. Judge Mamba asked whether this is counterbalanced by the fact that a court is required to ascertain whether the conduct actually amounted to terrorism before convicting any person accused under this provision. Adv Jansen said that an acquittal doesn’t remove the harmful effects of a person undergoing a criminal trial, and that the knowledge that this could happen creates a chilling effect on the conduct of other people; that is, not knowing what conduct is prohibited under this provision means that people are less likely to act in a way that might be construed as being a threat to national security.
Adv Jansen then discussed the offence of supporting a terrorist organization, and said that this offence was also overbroad, and said that for this provision to be constitutional the concept of “support” had to broader than the concept of a co-perpetrator.
Adv Jansen closed his argument by reminding the judges that they have the opportunity to make decisions here that will be looked upon favourably by history.
Adv Peter Hathorn was next up, representing Mario Masuku and Maxwell Dlamini. Masuku and Dlamini were arrested and charged with sedition, subversion and terrorism after participating at a May Day celebration in 2014. They were in pre-trial detention for nearly 15 months, before the Supreme Court released them on bail in July this year.
Adv Hathorn focused his argument on the impact of the provisions in the Suppression of Terrorism Act which empower the Attorney General and Minister of Justice and Constitutional Development to declare organisations terrorist entities. He showed that the standards for these officials to make these decisions are low; the Attorney General needs only to have reasonable grounds to believe that an organization has participated in terrorist activity, and the Minister needs only to be satisfied that there is material to support a declaration that the organization is involved in terrorism. Adv Hathorn explained that neither of these standards are equivalent to the criminal standard of “beyond a reasonable doubt” and that the problem is that support for an organization declared to be terrorist is a criminal offence. This means, therefore, that an individual can be convicted of supporting an entity when one key element of the crime – that the entity is a terrorist one – is decided on a standard far lower than the required criminal standard of “beyond reasonable doubt”. Adv Hathorn stated that this then violates an accused’s right to be presumed innocent because the prosecution can secure a conviction without being required to prove all the elements beyond a reasonable doubt. This provision impacts Masuku and Dlamini as they were charged with supporting PUDEMO, which was declared a terrorist group under the legislation.
Judge Hlophe asked Adv Hathorn whether the court had the power to declare this aspect of the law unconstitutional, when the provision allowed for the designation of the organization as terrorist to be challenged and PUDEMO had not done so. Adv Hathorn explained the catch 22 inherent in the provision: if an individual member of PUDEMO, for example, challenged its designation as a terrorist group, that member would first have to state that she or he was a member of that terrorist group – which then opens them up to a criminal charge of supporting a terrorist group. In addition, Adv Hathorn said that the act stipulates that an “entity” that had been declared a terrorist one could challenge that characterization, but doesn’t explicitly say that individual members can do so.
Adv Hathorn then discussed the importance of the right to freedom of expression, and set out how the terrorism legislation infringes this right. He referred to the Zimbabwean case of Chimakure v Attorney General where the court held that all non-violent expression should be protected by the right.
After a long day of argument, the court adjourned. Adv Jonathan Berger, for Maxwell Dlamini, Mfanawenkhosi Mntshali and Dickson Nkambule, and Adv Greg Harpur and Adv Alan Lamplough, for the government respondents, will argue tomorrow.
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