15 August 2024 – On 13 August 2024, the Eswatini Supreme Court handed down its long-awaited judgement in the case of Prime Minister of Eswatini and Another v Thulani Maseko and Six Others [2024] SZSC 88. The case is a consolidation of 4 cases brought between 2008 and 2014, which all challenged provisions of the Sedition and Subversive Activities Act of 1938 and the Suppression of Terrorism Act of 2008. The Supreme Court upheld both laws, albeit with a more restrictive reading of the offence of sedition to include an element of violence or disorder.
The court reversed the 2016 High Court ruling that found provisions of the sedition and terrorism laws unconstitutional. The respondents had challenged the offence of sedition for being overly broad, criminalising the Act of “bringing into hatred, or contempt or to excite disaffection” against the monarchy or government. In doing so, they argued that the offence risked criminalising expressive conduct that would ordinarily constitute an essential element of democratic discourse.
SALC’s Executive Director, Anneke Meerkotter, highlighted that:
“The Court agreed that the activists had the right to challenge the constitutionality of the offences they were charged with before trial. Yet the Court ignored the blatant facts of the rights violations experienced by the activists due to being charged with offences under these laws. In each case, they were arrested after expressing their opinions in a speech, on a banner, singing a song or wearing a t-shirt. In none of these instances did the respondents’ speech result in violence or disorder. Whilst waiting for a decade for the outcome of this case, the activists were under stringent bail conditions, including prohibiting their free speech. The harsh effect of these offences on their rights to expression and associate themselves is indisputable.”
The Southern Africa Litigation Centre has supported the case, and we mourn the activists and human rights lawyers who passed away before the case was concluded.
- Thulani Maseko, an internationally renowned human rights lawyer, was assassinated on 21 January 2023. He was the first respondent and represented the 2nd to 6th respondents on appeal.
- Mario Masuku, the 5th respondent and former President of PUDEMO, passed away on 11 January 2021. Cumulatively, Mario spent more than 5 years in detention on sedition and terrorism charges without ever having been convicted.
- Leo Gama, a human rights lawyer in Eswatini, passed away on 17 September 2018. He represented the 2nd to 5threspondents in the High Court.
- Advocate Rudolph Jansen SC, former Director of South Africa’s Lawyers for Human Rights, passed away in November 2017 and represented the 7th respondent in the High Court.
- Mandla Mkhwanazi, then President of the Law Society of Swaziland and a senior human rights lawyer in Eswatini, passed away on 21 February 2019. He represented the 1st respondent in the High Court.
So much progress has been made in Africa since the case was initially filed, with countries like Uganda and Zambia repealing the sedition offences. Unfortunately, the persecution of political activists, human rights defenders, and parliamentarians persists in Eswatini. While we honour the memory of Thulani Maseko, Mario Masuku, and others, it is disheartening that harassment and targeting of activists and defenders continue.
We are concerned that the Supreme Court’s judgement will pave the way for increased persecution of activists. We hope that with the case now being concluded, the State can assist the country in putting this difficult period behind it by releasing persons who had been charged with sedition and other politically motivated charges and by fostering dialogue with political parties to resolve the current impasse and remove the designation of political parties as terrorist entities.
We are hopeful for positive changes in the future and remain committed to advocating for justice and fairness.
Background Information
The offence of sedition
The Sedition and Subversive Activities Act of 1938 is part of the colonial remnant of British rule. The Act was amended in 1983 to increase the sentence to 20 years’ imprisonment.
Over the years, the Act has been used against activists to suppress dissent. Often, activists are arrested under sedition charges after participating in demonstrations. They are detained for extended periods just to be acquitted, convicted of lesser offences such as jaywalking or attending a political meeting (an offence under the 1973 Proclamation) or released on bail without ever being brought to trial. In one such instance, in 2000, Mario Masuku was charged with sedition and acquitted after spending 323 days in maximum security prison.
The Supreme Court, in its judgement, emphasised that although other countries have repealed the offence of sedition, it remains vital in Eswatini, where the monarchy has been honoured and revered for centuries. The continuation of the offence in many monarchies supports their ability to maintain some semblance of legitimacy in an era when they have become obsolete. In contrast, Heads of State are elected periodically in democratic countries. For the elections to be free and fair, people must be able to criticise the actions of the incumbent president effectively. The offence cannot be justifiable to the same extent in modern democracies. For activists in a country where the monarch is the Head of State, the offence has a chilling effect on democracy and freedom of expression.
Most recently, on 15 July 2024, the High Court of Eswatini sentenced former Members of Parliament Mduduzi Bacede Mabuza and Mthandeni Dube to 25 and 18 years imprisonment, respectively, ostensibly for the crimes of sedition, “terrorism” and murder. In 2021, the MPs delivered six speeches advocating for democratic reforms. Their central demand was that the Prime Minister should be directly elected by the people, not appointed by the monarch.
The Suppression of Terrorism Act
The Suppression of Terrorism Act similarly has a politically motivated history. The 1973 King’s Proclamation banned all political parties in Eswatini. Following the 2006 Constitution, which entrenched the right to freedom of association, political parties in 2008 applied to the court for an order declaring that “political organisations are entitled and have a right, to be recognised, registered and organise, operate and engage in free political activity in Swaziland.”
Within months, the King signed the Suppression of Terrorism Act (STA) into law, and the Prime Minister declared the People’s United Democratic Movement (PUDEMO), the Swaziland Youth Congress (SWAYOCO), the Swaziland Solidarity Network (SSN) and the Swaziland People’s Liberation Army (Umbane) terrorist entities. Subsequently, the law has often been used to arrest and detain activists and search their houses. For example, in October 2008, Mario Masuku was charged under the Act after he made a speech at the funeral of an activist. On 23 September 2009, on the first day of the trial, he was acquitted after the prosecution had failed to produce an offence, which meant that he had spent 343 days in custody on what was proved to be spurious charges. That same year, Mphandlana Shongwe was charged under the Act for shouting “Viva PUDEMO, Viva SWAYOCO” at a meeting; he was released on bail and never brought to trial. In May 2010, Sipho Jele was arrested at a May Day rally for wearing a PUDEMO t-shirt. He died in custody.
The High Court in 2016 found that despite PUDEMO being a specified entity under the Suppression of Terrorism Act, the applicants were arrested purely for belonging to this group and for wearing its t-shirts and chanting its slogans, which interfered with their rights to freedom of association and freedom of expression. It also held that the government had not provided a legitimate justification for interfering with these rights. In its judgement, the Supreme Court disagreed that the rights to freedom of expression and association had been violated.
The Suppression of Terrorism Act was amended in 2017. The amendments made minor positive changes, including removing from the definition of a ‘terrorist act’, an act that “involved prejudice to national security or public safety.” The High Court held this section vague and overly broad, and the 2017 amendment removed this part.
Section 11 of the Suppression of Terrorism Act specifies that it is an offence to solicit support for a terrorist group knowingly. Section 11 has accordingly been used to arrest individuals who have supported an organisation without having actual knowledge that the organisation they support is involved in terrorism. This results in ‘guilt by association’, which violates the presumption of innocence. The High Court declared sections 11(1)(a) and (b) unconstitutional. They were, however, retained in the Amendment Act.
Section 28 was declared unconstitutional by the High Court and amended to allow a judge to order the Minister to revoke an order designating an organisation as a ‘specified entity’.
