In May 2022, the African Union (AU) held an extraordinary session on Terrorism and Unconstitutional Changes of Governments in Africa in Malabo, Equatorial Guinea, resulting in a declaration entitled “robust response, deepening democracy and collective security”. The declaration condemns and expresses zero-tolerance for all forms of “unconstitutional change of government”. However, the declaration’s preamble also commits States to promote constitutionalism, separation of powers, judicial independence, political pluralism and meaningful public participation.
Between these two worlds, the Eswatini Government has carved its political strategy – condemning those who seek judicial independence, pluralism and participation as terrorists and engaging in conduct unbecoming of Swazis. Although essential, the regional response to terrorism has proved a helpful cover for authoritarian States to target those critical of the State under the guise of dealing with terrorism. This is undoubtedly the case in Eswatini and has been since political formations such as the Peoples’ United Democratic Movement (PUDEMO) were first declared terrorist entities in 2008.
Under the Suppression of Terrorism Act, an “entity” refers to a person, group, trust, fund or organisation. Section 28 of the Suppression of Terrorism Act addresses the powers of the Attorney General and the Minister to declare an organisation a “specified entity”. Of concern is the low threshold on which the Attorney General and Minister can base their initial decision on when to designate an organisation as a terrorist, i.e. “reasonable grounds to believe”. Given the severe consequences of such a declaration and the fact that once designated, the entity members can be liable for criminal charges; this threshold is too low. Section 28 was declared unconstitutional by the High Court in 2016. The section was since amended to allow a judge to order the Minister to revoke an order designating an organisation a “specified entity”. Section 28, however, still retains other problematic clauses, including allowing the High Court hearing the review to accept any evidence that would otherwise be inadmissible.
The State has now gone further to declare a journalist a terrorist entity. On 1 July 2022, the Prime Minister of Eswatini, Cleopas Dlamini, officially declared journalist Zweli Martin Dlamini and his publication, Swaziland News (PTY) (LTD); “specified entities” that “knowingly facilitate the commission of terrorist acts”. The declaration of Zweli Dlamini and Swaziland News as terrorist entities coincided with concerns of renewed protest action to commemorate the June 2021 uprising. In the lead-up to the commemoration, police issued search warrants against political party leaders and urged citizens to refrain from participation in protests and discussions on social media.
In addition to targeting activists and journalists, the State also continues to detain two members of parliament. In July 2021, Mduduzi Bacede Mabuza and Mthandeni Dube were arrested under the Suppression of Terrorism Act for allegedly encouraging civil disobedience. The MPs were also charged under the Sedition and Subversive Activities Act, which provisions had been declared unconstitutional by the High Court in 2016, for exciting disaffection against the King. After closing the State’s case against the two MPs and filing an application for discharge by the MPs, the Crown applied to amend the charges against them in a manner that fundamentally changes the case they need to defend. The High Court refused the application to amend the charge on 30 June 2022. The MPs have to date, been in custody for a year.
Declaring a journalist and news entity terrorist is a new low for the Eswatini Government. In May 2021, the then Acting Prime Minister of Eswatini brought an application before the Mpumalanga High Court in South Africa against Dlamini and Swaziland News. The application sought to interdict Dlamini and Swaziland News from publishing any potentially defamatory content of the Eswatini Government, royal family, head of State or ministers without notice to the State and inclusion of their response in the article.
This State’s approach to journalism inside and outside its borders runs contrary to the African Commission’s 2019 Declaration on Principles of Freedom of Expression and Access to Information in Africa which encourages States to repeal criminal laws relating to sedition, insult, false news and defamation, and to guarantee the safety of journalists and media practitioners.
Instead of promoting freedom of opinion and expression, the Prime Minister of Eswatini recently warned that the country would “not hesitate to respond with the necessary force to protect our national security as a sovereign state in the face of these brutal crimes that are being committed under the pretext of pursuing democracy”. The Government has further cautioned citizens who follow and interact on social media on matters critical to the State.
Such statements directly contrast with the African Charter, the Constitution of Eswatini, and the spirit of ubuntu. Such State behaviour violates the right to freedom of expression and other linked human rights and democratic and political freedoms.
In 2017, cognisant of the fundamental importance of protecting human rights and the rule of law, the African Commission on Human and Peoples’ Rights concluded in Resolution 368 that “The African States are still enacting and implementing certain aspects of counter-terrorism legislation that violate fundamental human rights of populations also resulting in shrinking of civic space”.
It is hoped that this caution will also penetrate other regional discussions and interventions on terrorism to ensure that when States are urged to act against potential threats, they are monitored to ensure these measures are not misused to stem criticism and civic space.
By: Melusi Simelane, Civic Rights Cluster Lead, Southern Africa Litigation Centre