On 16 September 2016, the High Court in Swaziland declared a number of provisions in the Sedition and Subversive Activities and Suppression of Terrorism Acts invalid. In a majority decision, Judges Annandale and Mamba held that the provisions relating to the definition of the offences of sedition, subversion and terrorism and to the designation of an organisation as a terrorist entity unconstitutional on the grounds that they infringed the right to freedom of expression, association and administrative justice. Judge Hlophe delivered a dissenting judgment.
This case is a combination of four separate cases brought by political activists in Swaziland who had been charged with terrorism, sedition and subversion. These activists had been charged with terrorism and/or sedition and subversion for conduct which included wearing t-shirts in support of a banned political group, speaking at a rally and participating in a march calling for an electoral boycott. In 2014, the activists filed applications arguing that the overbroad and vague definitions of the offences in the legislation were an unjustifiable infringement of the rights to freedom of expression and association because the conduct that had led to their criminal charges constituted legitimate comment. Some of the activists facing terrorism charges also argued that the Suppression of Terrorism Act, which criminalised the mere support of a group which has been designated as a terrorist entity and prevented individuals challenging that designation, infringed their right to administrative justice.
The Court held that the state respondents in the case has not provided any evidence explaining why the laws – which they admitted infringe the right to freedom of expression – would be justifiable in a democratic society. The Court also emphasised that the rules of natural justice apply to individuals who are members of a so-called terrorist entity.
“We are absolutely delighted at the outcome of this case”, said Kaajal Ramjathan-Keogh, SALC’s executive director. “The sedition and terrorism laws have been used in Swaziland to stifle legitimate dissent for many years, and this judgment is a welcome recognition of the need to ensure that the constitutionally protected rights to freedom of expression and association are given full effect to in the Kingdom.”
SALC supported two of the four cases in this matter, and Adv Peter Hathorn SC, from the Cape Bar, and Adv Jonathan Berger of the Johannesburg Bar represented the activists involved in those cases. Leo Gama, of Leo Gama Attorneys in Swaziland, was the attorney of record.
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