Southern Africa Litigation Centre
89th Ordinary Session of the African Commission on Human and Peoples’ Rights
Dakar, Senegal | 12–21 October 2026
Delivered by Melusi Simelane, Civic Rights Programme Manager
Southern Africa Litigation Centre | Observer Status No. 420
Honourable Chairperson, Honourable Commissioners, Distinguished Delegates,
The Southern Africa Litigation Centre thanks the Commission for this opportunity.
For a decade, our region did something remarkable. It dismantled the laws that punished people for what they said. Courts in Lesotho, Zimbabwe, Zambia, Uganda and Kenya struck down sedition,criminal defamation and false news offences. Parliaments repealed them. That achievement is now being undone in three steps. First, the State watches. Then it rewrites the law. Then it charges.
First, the watching. Surveillance was once exceptional. It is becoming an administrative routine. Spyware sold to member states has been found on the devices of journalists, opposition figures and human rights defenders, and the power to intercept is moving out of the courtroom and into administrative hands. Section 6(3) of South Sudan’s Cybercrimes and Computer Misuse Act, signedinto law in February 2026, allows the National Communication Authority to order service providers to hand over any data it considers important, with no judicial authorisation at any stage. Similar questions concerning Nigeria’s interception regulations are now before the ECOWAS Court of Justice, in proceedings this organisation supports alongside others; we say nothing of the merits while that matter is before the Court. But the architecture is consistent wherever it appears. Warrants are issued without independent review. Material is retained indefinitely. And the person who was watched is never told — not even once the investigation has closed. If you are never told you were watched, you cannot
complain. If you cannot complain, you have no remedy. And a right without a remedy is not a right.
When surveillance is not enough, the network is simply switched off, as it was around Tanzania’s 2025 general election and the protests that followed. Resolution 573 and Principles 40 to 42 of the 2019 Declaration require judicial authorisation, independent oversight, and an effective remedy. The standard is not unclear. It is being ignored.
Second, the rewriting. This is the step most easily missed. The old speech offences are not being restored; they are being re-enacted, phrase by phrase, within cybercrime legislation. Consider the vocabulary of these statutes: false information, alarm, insult, offensive communication, reputational harm. It is the vocabulary our courts spent a decade removing, and it returns with wider powers, heavier penalties, no defence of honest error, and a single new condition of liability — that the words were typed rather than spoken.
Zambia shows the sequence. In 2023, it removed criminal defamation from its Penal Code. In 2025, its Cyber Crimes Act made it an offence to use a computer to publish information damaging a person’s reputation. Removed from the Penal Code; restored by computer. In Nigeria, section 24 of the Cybercrimes Act is repeatedly used to arrest journalists for their reporting. In Mali, a journalist was imprisoned last month for criticising the authorities.
Honourable Commissioners, these are colonial offences, and our courts have already ruled on each of them. Criminal defamation — struck down in Lesotho and Zimbabwe. False news — struck down in Zambia and Uganda. Sedition — survives in Eswatini’s 1938 statute, enacted by a colonial administration and still in force today. Each was written for a single purpose: to protect those who governed from those they governed. They were written to be used against us. To see them re-enacted in 2025 and 2026, under the respectable heading of cybersecurity, is to watch a repeal undone by a redraft. Principle 22(2) of the Declaration requires their repeal — and a repeal means nothing if the same offence returns three sections into the next statute.
Yet courts continue to hold the line. In March 2026, Kenya’s Court of Appeal struck down two sectionsm of the Computer Misuse and Cybercrimes Act, and its reasoning matters because the word “overbroad” alone conveys nothing. Those sections punished false publication without requiring the State to prove any intention to deceive or any resulting harm. They therefore reached the journalist who made an
honest mistake and the citizen who forwarded a report that later proved to be wrong. A law drawn that widely need not be enforced often; it works by being available. That judgment shows what is possible. It should be the rule, not the exception.
Third, the charges. Governments in our region have begun to resort to the gravest offence they possess. In Uganda, Dr Kizza Besigye has been held on a treason charge since February 2025, through the general election of January 2026, in which he could play no part. In Tanzania, Tundu Lissu was arrested in April 2025, six months before the general election, and has been held without bail throughout; that election proceeded without him. In Zambia, Brian Mundubile and seventeen others were charged with treason seventeen days after a disputed election, after the courts had closed on the final day for filing an election petition.
Three countries, each with a national election immediately before or after. We do not say these cases are identical, nor that no evidence exists in any of them. We say the timing is not accidental and that it produces the same result whatever a court eventually decides: the accused is removed from political life at the very moment his participation matters most. Where treason is not bailable, the charge alone
achieves that, before a single witness has been heard. A trial that arrives after the vote it displaced may be perfectly fair and still come too late.
Let us be clear about what we are not saying. A State facing insurrection or an armed plot is entitled, and indeed obliged, to investigate and to prosecute. Our concern runs in the other direction. Every political treason charge that collapses teaches citizens to disbelieve their government the next time it says that a plot is real, and it cheapens the most serious accusation a State can make against one of its own. A charge used against critics will not be believed when it is finally used against conspirators. The line has already been drawn, and not by us. Under the Johannesburg Principles, endorsed by the United Nations Special Rapporteur on Freedom of Expression, expression may be punished as a threat to national security only if it is intended to incite imminent violence and is likely to do so. Applied to treason, there must be an overt act directed at the violent overthrow of the State — not an opinion, not a party meeting, not a refusal to accept an election result.
Finally, Eswatini. Eswatini’s own Commission on Human Rights recorded 46 people killed in June 2021, two of them children, and 245 wounded by gunfire. Civil society puts the number of deaths at more than one hundred. The figure is contested for one reason: no one has ever been permitted to establish it. That same Commission recommended a full, independent investigation in October 2021. Five years on, none has happened.
Nothing that brought people onto the streets has changed. Political parties still cannot contest elections. There is no lawful avenue by which a citizen may argue for constitutional change, and petitions are met with force.
Mduduzi Bacede Mabuza remains in prison. Mthandeni Dube’s conditional pardon forbids him from speaking to the press, posting online, addressing any gathering, or leaving the country until the day his sentence would otherwise have ended. That is not liberty; it is a sentence served outside the prison walls, and its currency is silence. In September, after a recording attributed to him, his whereabouts became unknown. A right that may be withdrawn because it was exercised was never a right. And the killing of the human rights lawyer Thulani Maseko, more than three years on, remains unpunished.
In August 2024, in the constitutional challenge that Thulani Maseko himself brought and did not live to see decided, the Supreme Court upheld the sedition and terrorism statutes but narrowed the offence, holding that sedition requires an element of violence or public disorder. Peaceful expression alone should not sustain the charge. We ask this Commission to hold the Government to that limit, because
practice has not caught up. Mphandlana Shongwe was charged under the Suppression of Terrorism Act in 2009 for shouting political slogans at a meeting. He has never been tried. Seventeen years later the charge still stands — a punishment without a verdict, and without an appeal.
When citizens may not petition, may not organise, and may not be heard in court, every lawful avenue closes at once. We want to be precise about what follows, as it is often misrepresented. We are not asking for anything outside the law. We are asking for the law to be opened: courts that will hear the merits, a Parliament free to debate what matters, and a public square in which disagreeing with the Government is not a crime.
We therefore ask States Parties to place surveillance under judicial control, and to remove speech offences from their statute books in substance and not merely in name. And we ask this Commission: to direct its Special Rapporteur on Freedom of Expression and Access to Information to review cybercrime legislation across the continent against Principle 22(2); to issue guidance on the use of treason in political contexts, adopting the Johannesburg test and applying particular scrutiny to charges brought around national elections; and to renew its engagement with the Kingdom of Eswatini — for the release of Mduduzi Bacede Mabuza, the lifting of the conditions on Mthandeni Dube’s pardon, the independent investigation into June 2021 that Eswatini’s own Commission recommended, justice for Thulani Maseko, and the repeal of the Sedition and Subversive Activities Act of 1938.
The Southern Africa Litigation Centre remains committed to working with this Commission on these
matters, and on many more.
I thank you.