The Eswatini Litigation Centre, Mzwandile Banele Masuku, the Swaziland Rural Women’s Assembly, and Melusi Simelane have submitted a Notice of Appeal to the Supreme Court of Eswatini, contesting the dismissal of their case—a high court challenge to the US-Eswatini deportation agreement, which involves receiving third-country deportees in exchange for financial compensation.
The case is supported by the Southern Africa Litigation Centre.
Just yesterday (12 March 2026), the government of Eswatini announced the arrival of a third batch of four more deportees from the United States, nationals of Somalia, Sudan, and Tanzania, bringing the total number of people held in Eswatini prisons under this arrangement to at least 19. This latest development only heightens our concern. Despite having already served their sentences for crimes committed on US soil, these individuals remain imprisoned in Eswatini, held in a country to which they have no connection, with no clear legal status and no access to legal representation.
We have consistently held that this agreement is unlawful. It was never presented to Parliament. Its full terms were never made public. Yet, it continues to be used to deport more individuals to Eswatini.
The opacity surrounding this deal is not only worrying for civil society. Members of parliament have continued raising serious questions, including why the payment from the United States, reportedly $5.1 million (USD), was directed to the National Disaster Management Agency (NDMA) instead of the national treasury. This is precisely the kind of question that demands public accountability. Public money, no matter how it is received, belongs to the people. When funds from a controversial international agreement are channelled through an agency outside normal budget oversight, every citizen has the right to ask why, and we welcome the ongoing parliamentary debate on this issue. These questions from within parliament affirm what we have argued from the beginning: this agreement was designed to avoid scrutiny. And it is succeeding, unless we take action.
What the High Court decided and why we disagree
On 3 February 2026, a Full Bench of the High Court dismissed the application. The court found, essentially, that citizens and civil society organisations lacked sufficient personal interest to bring this case. In legal terms, it ruled there were no adequate grounds for locus standi, meaning the right to appear before the court as litigants.
In submitting the appeal, we respectfully but firmly disagree. The High Court’s own judgment, at paragraph 17.6, recognised that the applicants had locus standi. Yet instead of examining the substance of our case, the court chose to dismiss the application on other technical grounds and declined to scrutinise the full merits of the matter. We submit that this was an error with consequences that extend far beyond this case.
At the core of this appeal lies a fundamental question: in Eswatini, who has the right to access the courts when the government acts unlawfully?
The High Court determined that the applicants lacked standing because they had no direct personal interest. In doing so, the Court overlooked the significance of allowing citizens to seek judicial review of executive actions that seem unlawful and unconstitutional. A broad interpretation of legal standing to access courts is particularly crucial in cases where the government avoids parliamentary accountability.
This observation, from Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre, in a recent opinion piece, cuts to the core of what is at stake. The real-world consequences of such judgments can be severe: those directly affected cannot access lawyers; those able to access the courts are denied standing. Therefore, such agreements and the detentions resulting from them remain shielded from judicial scrutiny. This is a risky and potentially dangerous outcome in any democracy, and it must be addressed.
What the Constitution actually says
The Constitution of Eswatini, in section 2(2), imposes a duty. Every citizen has a constitutional obligation to uphold and defend the Constitution. We submit that this duty is not merely ceremonial. It is not fulfilled by passive compliance with the law. It means that when the executive branch of government acts in a manner that appears unconstitutional, enters into secret agreements, bypasses parliament, and spends public money without accountability, citizens must have the right to go to a court of law and make such allegations.
If ordinary citizens are told they can only bring a case when they have been personally and directly harmed, that requirement becomes meaningless. A government that bypasses Parliament, signs secret deals, and keeps financial arrangements off the books can do so freely, knowing that those most directly harmed, such as foreign nationals in detention with no access to lawyers, cannot challenge it. Moreover, those who can access the courts will be turned away for lack of personal injury. This is exactly the situation our Constitution was designed to prevent.
The doctrine of actio popularis and public interest litigation
The High Court applied an outdated and overly restrictive interpretation of the legal principle of actio popularis, the right to initiate a case in the public interest. It relied on pre-constitutional case law to justify a narrow approach that requires litigants to demonstrate personal prejudice or injury. The appeal aims to challenge this interpretation, which is not only legally incorrect but also inconsistent with the progressive constitutional framework adopted by Eswatini in 2005.
Public interest litigation is familiar within this jurisdiction. It is not an unconventional idea. It serves as a means for citizens to hold governments accountable when institutions that should do so, like parliament, are ignored or overlooked. The High Court’s approach, in effect, restricts one of the few remaining pathways for accountability in cases of executive overreach.
We are asking the Supreme Court to set the record straight
We are requesting the Supreme Court to overturn the High Court’s dismissal and to grant the relief we initially sought, including an order compelling the government to disclose the full terms of its agreement with the United States, and an order stopping further arrivals under the agreement until the matter is legally resolved.
We are also requesting the Supreme Court to confirm that, in Eswatini, courts are accessible to citizens who present genuine public-interest challenges, especially when the executive has acted in secrecy, and Parliament has been denied the chance to carry out its constitutional oversight role.
Eswatini is not the only country to have entered into such arrangements. It is the first country in the Southern African Development Community to accept deportees from the US. How our courts respond to these challenges indicates across the region whether constitutional accountability is genuine or merely aspirational. As Anneke Meerkotter has warned, we must not allow our region to become complicit in egregious human rights violations. We agree. And we aim to continue fighting until the courts of Eswatini are allowed to pronounce so too.