Mbabane, 4 February 2026 — The Southern Africa Litigation Centre (SALC) notes with serious concern today’s High Court decision dismissing the legal challenge to the Government of Eswatini’s deportation arrangement with the United States based on a lack of standing. The judgment leaves core constitutional issues, such as whether executive agreements with foreign states that affect domestic law and human rights can bypass parliamentary ratification and public participation, unresolved.
The application, filed by the Eswatini Litigation Centre, the Swaziland Rural Women’s Assembly and Melusi Simelane, arose after five men were deported by the United States to Eswatini in July 2025 and held in solitary confinement without access to legal counsel. These transfers occurred under a memorandum of understanding that was neither disclosed nor tabled before Parliament. Independent access to the detainees was initially refused, with the attorney general calling the litigation “frivolous.”
Today’s decision adopts an approach that severely limits citizens’ and civil society’s ability to challenge government actions and prevents the matter from proceeding to the merits. Executive Director at SALC, Anneke Meerkotter, noted that this decision was nothing new. She said, “By denying the right to approach the courts, the constitutional right to challenge contentious executive decisions that are not in the public interest is in great jeopardy. This decision facilitates and enables governmental decisions to create a system of shadow governance outside parliamentary and public scrutiny,” she said.
Melusi Simelane, Rights Cluster Lead at SALC. “Public‑interest organisations and the citizens of Eswatini must be able to vindicate constitutional principles where human rights and constitutional principles such as the separation of powers are at risk. Eswatini’s Constitution requires transparency and ratification processes for international agreements. Today’s ruling leaves those calls for accountability unanswered.”
Director at the Eswatini Litigation Centre, and applicant, Mzwandile Masuku, said, “The reality remains the fact that the substantive issues are not addressed. When the drafters of the Constitution crafted section 2(2) on the rights and duty to always uphold and defend the Constitution, surely, they sought to usher in a dispensation that has been gravely wanting in this country. Today, that door, it would seem, is in the charge of a doorkeeper who partially opens and closes it depending on the person knocking at the door or what they bring with them.”
The Swaziland Rural Women’s Assembly said, “We are told to respect the law, yet we watch powerful actors sidestep the Constitution. This case is not just about 5 individuals; it is about whether people in Eswatini have the right to challenge their government’s decisions. Silencing public interest voices today weakens democracy for everyone tomorrow.”
This decision sends the wrong message to Eswatini, and, beyond that, a small elite can make decisions outside the rule of law, oversight, or public discourse, leading to dire human rights consequences for those involved. As Africa faces democratic backsliding, judicial oversight is vital to ensure that executive power, especially in sensitive areas such as migration control and cross-border cooperation, remains subject to the law. This is not only a loss for the individuals and civil society involved, but also for Parliament and its members, whose rights and obligations have been undermined in this matter.
Background
In March 2025, US diplomats met with Eswatini officials to push for the agreement, according to a Department of Homeland Security memo. The five deportees arrived in Eswatini and are currently detained. Human rights organisations, learning of the deal, threatened legal action if Eswatini did not withdraw.
On 14 August 2025, the Eswatini Litigation Centre, Swaziland Rural Women’s Assembly, and Southern Africa Litigation Centre filed an urgent application in the High Court of Eswatini challenging the agreement’s validity. The respondents are the Prime Minister, the Commissioner of Correctional Services, the Minister of Home Affairs, the Minister of Foreign Affairs, and the Attorney-General. Neighbouring South Africa has expressed security concerns, summoning Eswatini’s High Commissioner for discussions.
The application contends that the agreement violates section 238 of the Eswatini Constitution, which requires that international agreements be ratified by Parliament or by a two-thirds majority in a joint sitting. Key issues include executive overreach without public participation or transparency, and breaches of human rights and obligations under international law. The applicants sought declarations of unconstitutionality, disclosure of the agreement’s terms and financial details, and an interdict preventing further arrivals of deportees until the matter is resolved.
The Constitution underpins Eswatini’s governance, emphasising its supremacy and the importance of respecting fundamental rights (Section 14). The court should have had concern for the rights of the deportees/immigrants being held in maximum security without any legal clarity on how they were brought into the country or why they were being held in maximum security. Sections 58(1) and 63 establish Parliament’s legislative authority, ensuring that decisions affecting rights or security are subject to parliamentary oversight. These provisions support the argument that such agreements must involve Parliament, transparency, and judicial review, thereby reinforcing the principles of separation of powers, open governance, and lawful executive action. Furthermore, Section 2 requires all citizens to uphold and defend the Constitution.
About the case: Filed 14 August 2025; adjourned on 22 August 2025 when the State failed to appear; heard on 3 November 2025, with judgment reserved pending authorities and certifications. judgement 2
Next steps: We are studying the judgment and considering an appeal and/or a renewed strategy to ensure the integrity of the constitutional order by establishing good governance and separation of powers, and to ensure that affected individuals and representative organisations can be heard on the merits. We also call on Parliament to demand the text of any agreement, provide oversight, and protect constitutional governance.
Media contact:
Melusi Simelane
+27 81 009 7195