Swaziland’s High Court has ruled that sections of the
Suppression of Terrorism Act and the Sedition and Subversive Activities Act are
unconstitutional.
Judges ruled that the Acts contravened provisions in
the Constitution on freedom of expression and freedom of association.
The ruling was delivered on Friday (16 September 2016)
ending years of campaigning to have the Acts overthrown.
Thulani Maseko, a human rights lawyer; Maxwell
Dlamini, Swaziland Youth Congress secretary-general; Mario Masuku, president of
the People’s United Democratic Movement (PUDEMO) and Mlungisi Makhanya, PUDEMO
secretary-general, brought four actions against the Swazi state.
Responding at
the Swazi High Court were the Prime Minister, the Minister of Justice and
Constitutional Affairs, the Director of Public Prosecutions and the Attorney
General.
Justice Mbutfo Mamba
and Justice Jacobus Annandale ruled
that various sections of the Acts were inconsistent with the Constitution. They
said S14(1)(b) of the Constitution, ‘guarantees and declares freedoms of
conscience, expression and peaceful assembly and association as fundamental
human rights’.
The applicants had been charged with offences under
the Suppression of Terrorism Act because they are members of PUDEMO which is a
banned organisation in Swaziland, where King Mswati III rules as sub-Saharan
Africa’s last absolute monarch. The judges’ ruling stated, ‘They were found
wearing T-shirts and berets of such organization and also chanting its slogans.’
The judges also stated that the Act did not describe
what a terrorist was. ‘Generally speaking, most of the offences criminalized as
terrorist acts in the Act are covered by ordinary criminal law,’ they stated.
The judges stated the fact that the applicants had
been charged for their involvement with PUDEMO, ‘is plainly a matter that
affects or impacts on their right to freedom of association and opinion.
‘For whatever reason, their views on the policies,
aims, ideals and objectives of PUDEMO have drawn them to it. The wearing of any
apparel of paraphernalia associated with PUDEMO, may or may not, depending upon
the particular circumstances of the case, be said to be a crime under the Act.
‘The bottom-line in these proceedings, however, is
that their association, involvement with this organization or entity has
resulted in them being charged under the Act. In a word, they have been told,
PUDEMO is a specified [banned] entity, and your belonging to it or chanting its
slogans and wearing its apparels is a crime in terms of the Act.
‘Clearly, their rights to freedom of association and
opinion are adversely affected by this.’
The judges also stated that the law or regulations
that declared PUDEMO a banned entity interfered with the constitutional right
to freedom of association, but such rights were not absolute and they may be
subject to certain restrictions or limitations.
The judges stated that the applicants who were members
of the banned PUDEMO were, ‘declared, in effect, terrorists or at least persons
engaged or involved in terrorist acts or criminals before they are given the
opportunity to be heard on the issue. This cannot be right. It is against the
rules of natural justice or procedural fairness or administrative justice that
a person be condemned before he has been given the opportunity to be heard on
the issue under consideration.’
A third High Court Justice Nkululeko Hlophe made a dissenting judgement.
See also
NO
AMNESTY IN ‘TERROR’ CASES
SWAZI
TERROR ACT STOPS FREE SPEECH
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