Mbabane, 18 July 2025 – This week, the Trump Administration sent five individuals to be imprisoned in Eswatini. Their removal from the US and arrival in Eswatini have raised numerous questions, which civil society organisations in the region emphasise need urgent answers. These questions are pertinent in a context where the country’s correctional centres are overcrowded, the government is grappling with a range of crises, including a shortage of essential medicines, and where there have been consistent calls for a democratic, open and transparent government.
There are basic factual questions that need answers and that are essential to understanding the US and Eswatini laws applicable to the situation:
- Were the five individuals, originally from Yemen, Cuba, Jamaica, Vietnam and Laos, sent to Eswatini to serve out the remainder of their prison sentences, or had these sentences already been served and they left the US under removal orders?
- Were the individuals informed of their removal to Eswatini, and do they have access to consular services from their countries, an automatic right of every person detained in a foreign country?
- Who in Eswatini authorised the country’s acceptance of these individuals, and on what legal basis did they do so? Are they detained under a detention warrant or a certificate of detention as per the Immigration Act? Any other basis of detention would be contrary to the Correctional Services Act No. 13 of 2017.
- Are the individuals in question for a limited period in Eswatini or will they remain in the country until the end of the sentence? If they are in the country for a limited period, for how long will they remain in Eswatini?
Some other questions raised on social media might be interesting, but they do not justify the illegal detention of these individuals in Eswatini. For example, what was the agreement between the US and Eswatini, who would pay for their upkeep in detention, and what offences did they commit? Getting sidetracked by these types of questions distracts from the fact that the individuals ought not to be in Eswatini in the first place.
What we do know points to the illegality of the detention in Eswatini and the unlawfulness of their removal from the United States:
- According to the Eswatini government, the individuals are detained in various correctional centres nationwide. Section 74 of the Correctional Services Act No 13 of 2017 allows for only two scenarios for the detention of convicted persons: 1) transfer of a Swazi citizen convicted in a foreign State to serve their sentence in Eswatini, or 2) transfer of a foreign citizen convicted by a Swazi court to serve their sentence in their own country.
- The Transfer of Convicted Offenders Act No. 10 of 2001 allows a person convicted in another State to be transferred to Eswatini to serve their sentence in the country. However, a holistic reading of the Act makes it clear that this only applies to citizens of Eswatini, and in addition, they must have consented to the transfer voluntarily and in writing.
- The Immigration Act No. 17 of 1982 deems a person who was convicted of murder in any country an undesirable immigrant, and this person is a prohibited immigrant. The Minister can grant such a person a temporary stay, but this would be in exceptional circumstances. Since the International Office of Migration has not been requested to assist in their deportation, there is no indication of how long these individuals would be detained in Eswatini, which would mean that their detention also falls foul of section 64 of the Correctional Services Act, which requires immigration detention to be for a limited period. The Eswatini government has claimed that the individuals are “in transit”.
Publicly available information further points to the unlawfulness of the individuals’ removal from the United States:
- The Immigration and Nationality Act allows the removal of persons from the US to third countries if they can’t be sent back to their country of origin. Sending someone to a third country to which they have no connection is legally a last resort. The US claims the countries the five individuals originate from do not want them back. Eswatini claims the five individuals will eventually be deported to their countries of origin.
- The due process of law requirement means that someone who is to be removed to a third country should be given notice and opportunity to claim that such removal could expose them to torture or cruel, inhumane or degrading treatment. Removing people who had already served their sentences to be detained in a third country would amount to cruel, inhumane and degrading punishment and a violation of their right to due process. From a purely practical angle, it is unlikely that the individuals were able to exercise their due process rights given the haste with which they were sent to Eswatini.
- The United States have domesticated the Convention Against Torture, which means that they cannot send them to a country where people might be tortured. In the United States’ 2024 report on Human Rights Practices in Eswatini, it noted the prisons were overcrowded, constituting inhumane treatment, and that there were reports of torture in prisons.
As concerned civil society organisations, we accordingly call for the following:
- That the government clarifies the legal and factual basis on which the five individuals were accepted into Eswatini;
- That the consulates of countries where the five individuals are citizens urgently arrange for consular services to ensure that they obtain legal representation;
- The Eswatini Commission on Human Rights and Public Administration and international bodies, as official visitors under section 122 of the Correctional Services Act, visit the individuals to establish the facts surrounding their detention and their detention conditions. The international bodies should include the African Commission on Human and Peoples’ Rights, which is currently conducting an official visit in Eswatini, and the International Committee of the Red Cross in Pretoria;
- The government commits to not accepting inmates from third countries.
Issued by the Swaziland Litigation Centre, the Swaziland Rural Women’s Assembly and the Southern Africa Litigation Centre.