Mbabane, 22 September 2021 – On 14 September 2021, the High Court of Eswatini delivered judgement on the second bail application of Mduduzi Bacede Mabuza and Mthandeni Dube. The Members of Parliament have been in custody since 25 July 2021 and face charges under section 5(1) of the Suppression of Terrorism Act of 2008 (“the Act”). The trial, initially scheduled for October, is reported to likely only commence at the end of November 2021.
While the charge sheet refers to three particular events as constituting a “terrorist act”, none of these events qualify as a “terrorist act” under the Act. Section 2 of the Act defines a “terrorist act” as including an attempted action or threat of action which: causes or is intended to cause death or bodily injury; causes or is intended to cause serious damage to property; endangers the life of any person; or creates a serious risk to the health of the public or a section of the public. The State alleges that the following three events contributed to the June protests:
- a gathering on 5 June 2021, where one of the MPs allegedly suggested that there be a democratically elected Prime Minister, rather than one appointed by the King;
- a meeting at a restaurant, where one of the MPs allegedly encouraged sending petitions to Tinkhundla centres; and
- a speech in which one MP allegedly said “Akuklalwa Namuhla” (roughly translated to “not sleeping today”).
It is obvious that the accused MPs expressed their opinion on politics, which is a protected freedom under multiple international conventions and the Constitution of Eswatini. Voicing a non-violent opinion does not meet the threshold of a “terrorist act” under the Act. On this basis, none of the alleged events satisfy the elements of the crime of terrorism under section 5 of the Act, which penalises such an offence with imprisonment of up to 25 years.
As both MPs filed bail applications, the Eswatini High Court failed to balance the interests of justice with the rights of individuals to liberty and the presumption of innocence, thus subjecting the MPs to pre-trial detention due to procedural issues rather than the merits of the respective bail applications. The ruling in the second bail application has since been appealed. SALC is seriously concerned about the independence of the judiciary in light of these recent judgments, especially with respect to politically connected cases.
The State’s behaviour of silencing critical voices through arrests and detention reflects a sad reality of the monarchy. While it is usually activists who are at the receiving end of such State behaviour, the fact that two Members of Parliament remain in custody after two months on trumped up charges constitutes a threat to the rule of law and future of democracy in Eswatini.