Mbabane, Eswatini: 14 August 2025: The Eswatini Litigation Centre (ELC), alongside Mzwandile Banele Masuku, the Swaziland Rural Women’s Assembly (SRWA), and Melusi Simelane of the Southern Africa Litigation Centre (SALC), today filed an urgent application in the High Court of Eswatini to declare unconstitutional an agreement between the Kingdom of Eswatini and the United States of America that resulted in five foreign nationals, with no familial or legal ties to Eswatini, being incarcerated at the Matsapha Maximum Correctional Facility following their deportation from the United States.
Yesterday, CNN reported on the thousands of untracked US planes departing on a regular basis to third countries. Most of the persons deported via these flights have no link to the countries to which they are being flown and their families have no information on where they have been sent to. Eswatini is the first SADC country which has accepted one of these planes. Today, activists in Eswatini have filed an application questioning the legality of accepting US planes.
The application argues that the terms of the agreement remain undisclosed and have been implemented without the participation of the public and Parliament, constituting a violation of constitutional provisions such as section 238 of the Constitution. The circumstances under which this agreement has been concluded raise serious concerns about executive overreach, human rights, and national security.
The Constitution envisions a transparent, participatory, and accountable system of governance in which the executive cannot unilaterally make major international decisions, especially those with significant political, financial, and human rights implications. Our legal action is, therefore, not only about this specific agreement but also about defending the Kingdom’s fundamental democratic principles.
Mzwandile Banele Masuku, 2nd Applicant and Director of the ELC, said,
“This application is a clarion call for constitutional fidelity on this historic anniversary. For 20 years, our Constitution has promised a democratic Eswatini where no leader can wield unchecked power in international affairs. Our ethical duty as lawyers is to promote and protect the rule of law. When we omit to do so, it usually comes with grave costs to the ordinary citizens. Finally, we need to appreciate that human rights are universal. They have no restrictions based on colour, creed, nationality or continent.”
Zakithi Sibandze, Coordinator of the SRWA, 3rd Applicant, emphasised the broader societal impact,
“Rural women and communities bear the brunt of governance failures. This secretive deal threatens national integrity and diverts resources from pressing domestic needs. On this anniversary, we stand for transparency and accountability that uplifts all emaSwati.”
Melusi Simelane, 4th Applicant and Civic Rights Programme Manager at SALC, added,
“Today, we challenge an agreement that treats our nation as a mere extension of US immigration policy, risking our security and values. It’s time for Africa to lead with sovereignty, rejecting pressures that erode our hard-won independence. Eswatini’s prisons are overburdened, and our relations with neighbours are strained without parliamentary input. This is about reclaiming African agency against the global north’s agenda.”
Powerful nations like the U.S. increasingly outsource contentious policies such as third-country deportations to less powerful states, often through opaque arrangements that exploit economic vulnerabilities and bypass democratic safeguards. This litigation signals to the continent and the world that African nations cannot serve as dumping grounds for unresolved issues.
SALC’s Executive Director, Anneke Meerkotter, called on SADC heads of States to take a firm stand against accepting US deportation flights at its upcoming session next week,
“States know for a fact that the US has afforded no due process rights to the persons they have inhumanely boarded on flights to third countries. As citizens, we cannot allow our region to become complicit in these egregious human rights violations. Enough is enough.”
The application signals to the continent and the world that African nations will no longer serve as dumping grounds for the global north’s unresolved issues, instead prioritising self-determination, human rights, and regional stability.
We call on the Government of Eswatini to:
- Immediately make public the full terms of the agreement.
- Subject such agreements to parliamentary scrutiny in line with the Constitution; and
- Commit to transparent, accountable governance that places the interests of emaSwati first.
In a democracy, secrecy is the enemy of trust. Decisions of this magnitude must be made openly, with the knowledge and consent of the people’s representatives. The rule of law demands nothing less.
Background
In July 2025, Eswatini quietly accepted five individuals, citizens of Vietnam, Jamaica, Cuba, Yemen, and Laos, who had completed criminal sentences in the US but were deported to the Kingdom under a “third-country detainee” program. These individuals, with no ties to Eswatini, are currently held in solitary confinement at Matsapha Maximum Correctional Facility.
Government statements confirmed the arrangement stems from high-level engagements with the US, but the full terms remain classified, with no evidence of parliamentary ratification or public disclosure. The applicants contend that the agreement is unconstitutional, unlawful, and irrational for:
- Bypassing parliamentary oversight and democratic checks and balances;
- Risking national security and regional relations, particularly within SADC;
- Imposing an unbudgeted burden on already overcrowded and under-resourced correctional facilities; and
- Undermining the rule of law, transparency, and accountability required by the Constitution of Eswatini.
Its execution without such oversight violates constitutional provisions, bypasses immigration and correctional laws, exacerbates prison overcrowding (already at 171% capacity), and risks straining relations with neighbouring countries like South Africa and the deportees’ home nations. The application seeks to void the agreement, compel disclosure of its terms and financial details, and interdict further deportee arrivals pending resolution.
This filing coincides with the 20th anniversary of the adoption of the Kingdom of Eswatini’s Constitution in 2005. This landmark document was designed to enshrine democratic governance, the rule of law, and parliamentary supremacy in a post-colonial era. Two decades later, this application challenges executive actions undermining the Constitution’s core principles of transparency, accountability, and oversight.
Issued by the Southern Africa Litigation Centre, Swaziland Rural Women’s Assembly and the Eswatini Litigation Centre