On 25 July 2021, Members of Parliament Mduduzi Bacede Mabuza and Mthandeni Dube were arrested and charged with the contravention of section 5(1) read with section 2(a)-(d) of the Suppression of Terrorism Act of 2008. The State asserted that the two accused were responsible for the recent unrest after they addressed gatherings of people in June 2021.
The Suppression of Terrorism Act defines a terrorist act as an act that causes the death of a person, the overthrow by force or violence of the lawful Government, or cause by force or violence a member of the public to be in fear of death or bodily injury.
The Suppression of Terrorism Act and the archaic Sedition and Subversive Activities Act have frequently been used to suppress any speech that is critical of the Government and the Monarch. For example, in 2008, Mario Masuku was arrested and charged under the Act. After spending 343 days in custody, he was acquitted of the charges. In 2014, Mario Masuku and Maxwell Dlamini were charged with sedition and terrorism and spent 454 days in custody before being released on bail. In May 2019, an activist who criticised the monarchy in court papers was charged with sedition and belonging to “terrorist groups”, although none of the organisations he belonged to had been designated terrorist in the law. He spent a year in custody before the State dropped the charges against him.
There is a clear tendency by the State to suppress freedom of expression by incarcerating individuals who are critical of the State on trumped up charges. In most instances, the punishment meted out is detention for prolonged periods without any intention to bring the individuals to trial.
The arrest of the MPs infringes on their constitutionally protected right to freedom of expression and opinion, freedom of assembly and association and their right to liberty. The charges emanate from the execution of their duties as members of Parliament, which is protected by statute against criminal liability. They were denied their first bail application on 6 August 2021. The Court stated that the reason for the denial of bail was that the Applicants had not provided enough proof in their replying affidavit to counter the arguments of the Crown. This is in contradiction of the principle of the presumption of innocence applicable to bail proceedings. The denial of bail can only take effect where the release of the accused was not in the interests of justice, where there is a likelihood that the accused would be a flight risk, are likely to interfere with the administration of justice by hiding evidence or interfering with witnesses, or in exceptional circumstances where their release would disturb public order or undermine public peace and security. The judgment has the effect of meting out punishment by denying bail based on ‘lack of evidence’. It also missed the point of bail, which is to balance the interests of justice with the rights of individuals to liberty and the presumption of innocence.
By Thabo Buthelezi
SALC’s Research Assistant
