SWAZI LAWYER AND THE SEDITION LAW

When Thulani Maseko, Swaziland’s prominent human rights lawyer, appeared in court in leg-irons to apply for bail on a sedition charge, he said he wanted to go to trial because the charge was meant to ‘intimidate and silence me for advocating and promoting basic and fundamental human rights for citizens of Swaziland’.

He never spoke a truer word.

Maseko is accused of breaking the Sedition and Subversive Activities Act, 1938 (SSAA). According to the Swazi state, Maseko spoke about a failed attempt to blow up a bridge near one of the palaces of King Mswati III, sub-Saharan Africa’s last absolute monarch, in which two alleged bombers died.

Maseko is alleged to have said, ‘MJ Dlamini and Jack Govender died for the liberation of this country. One day the Lozitha Bridge will be called MJ and Govender Bridge.’

Apparently it is this statement that the Swazi state says is sedition.

I think most objective people would dispute that it is sedition. A good working definition of ‘sedition’ is that it is an ‘illegal action inciting resistance to lawful authority and tending to cause the disruption or overthrow of the government’.

Whatever you might think about Maseko’s statement it is hard to see it as an incitement to ‘overthrow the government’.

The problem for Maseko is that Swaziland’s SSAA has a much broader definition of sedition. It is not really about legislating against sedition; its intention is to silence all dissenting voices.

Konrad Adenauer Stiftung in its handbook for media practitioners called the act ‘a draconian piece of legislation, the primary purpose of which is to provide for the suppression and punishment of sedition, that is criticism of the King and the Swaziland government’.

Here’s how section 3 of the SSAA defines a ‘seditious intention’. It is an intention to:

- bring the King into hatred or contempt, or to excite disaffection against the King, his heirs, his successors and the government of Swaziland;

- excite the citizens and inhabitants of Swaziland to ‘procure the alteration, otherwise than by lawful means, of any matter in Swaziland as by law established’;

- bring the Swaziland justice administration system into hatred, contempt or disaffection;

- raise discontent amongst the citizens and inhabitants of Swaziland; or

- promote ‘feelings of ill-will and hostility between different classes of the population of Swaziland’.

Under that section just about any dissenting comment can be sedition if it raises ‘discontent amongst the citizens and inhabitants of Swaziland’.

It would seem that Maseko is guilty as charged under the act.

I’m no lawyer but I suspect that Maseko’s defence would be that the new Swaziland Constitution allows for freedom of speech (S24) and the constitution also states ‘if any law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void’ (S2).

Or put another way. The constitution overrules the SSAA – Maseko has no case to answer.