Laws in Swaziland have been used by the State as weapons against human rights defenders, a major investigation of the kingdom by international lawyers revealed.
‘There is a growing perception that the law, in particular the law of sedition, defamation, public order and anti-terrorism is systematically used to target human rights defenders (HRDs) and legitimate pro-democracy campaigners,’ the International Commission of Jurists (ICJ) reported.
It stated, ‘As far back as 1990, the Sedition and Subversive Activities Act 1938 (SSA) and the King’s 1973 Proclamation to the Nation were used against HRDs and legitimate pro-democracy campaigners. Leaders of the pro-democracy banned political opposition, the Peoples’ United Democratic Movement, were charged and tried for high treason for having convened a meeting to discuss the political problems in the country,’ it stated in a report called Achieving Justice for Gross Human Rights Violations in Swaziland - Key Challenges.
It added, ‘This approach has continued, with Amnesty International recently concluding that: “Legislation continued to be used to repress dissent”. In 1994, members of the Swaziland Youth Congress (SWAYOCO) and the Swaziland Communist Party were arrested and charged under the Sedition Act for being in possession of seditious placards. They were also charged under the King’s Proclamation for holding either a demonstration or a political meeting without the prior written consent of the Commissioner of Police. The High Court found them not guilty on the sedition charge, but convicted them on the contravention of Decree No. 13 of the King’s Proclamation.
‘In 2001, the leader of the People’s United Democratic (PUDEMO), was charged with two counts under the Sedition Act, accused of allegedly making statements that were seditious. At the close of the Crown’s case he was acquitted and discharged of the first count, and called to his defence on the second count. He was later acquitted on the second count as well. The judiciary proved to be able to exercise its judicial function independently and impartially without fear or favour. In 2005, a group of HRDs and legitimate pro-democracy campaigners were charged under the sedition law for allegedly committing acts of violence against the State. In the bail application they told the court that, while in custody, they had been subjected to torture and cruel and degrading treatment by State security agencies.
‘The court ordered that “the Prime Minister of the Kingdom of Swaziland in liaison with the Minister responsible for Justice and Constitutional Affairs, urgently, in the interest of justice and in the national interest, establish a commission of enquiry into the allegations that are before court concerning torture and denying basic human rights enshrined in our Constitution, to investigate and to report publicly the outcome within a reasonable time”.
‘Despite the court’s order, no such commission was set up and no report was made. The HRDs were released on bail and to date [May 2018] the matter has not been called for trial. Neither the applicants nor the DPP have made any follow-up on the order for an inquiry, albeit that nothing prevents the applicants from instituting contempt of court proceedings for the Minister’s failure to give effect to the court order.
‘In 2008, following a spate of bombings of some Government buildings and some tinkhundla centres, the Suppression of Terrorism Act 2008 (STA) was enacted. As soon as the Act entered into force, PUDEMO and three other organizations were listed as terrorist organizations under section 28 of the STA.
‘In the same year, its leader Mario Masuku was charged under the STA and, alternatively, under the SSA. In September 2009 he was acquitted and discharged by the High Court of Swaziland, because the State failed to prove the its case.
‘Also in 2008, human rights lawyer Thulani Maseko was arrested and charged under the SSA. He was released on bail and subsequently filed an application to the High Court challenging the constitutional validity of the SSA having regard to the Bill of Rights’ guarantee of the right to freedom of expression and opinion.
‘This case was consolidated with others that challenged the same law, together with the Suppression of Terrorism Act. In 2009, another member of the listed PUDEMO, Mphandlana Shongwe, was charged under the STA for shouting a slogan “Viva PUDEMO, viva SWAYOCO” at a civil society meeting. At his first appearance before the High Court, he was released on bail. To date, his case has not been called for trial.
‘In May 2014, Mario Masuku (leader of the PUDEMO) and Maxwell Dlamini (student leader and member of the PUDEMO youth league, the Swaziland Youth Congress, SWAYOCO) were charged under the SSA and STA for having addressed workers on Workers’ Day in Manzini, and shouting slogans in support of PUDEMO, an organisation listed as a terrorist organisation under the STA. Initially denied bail, they were kept in pre-trial detention from May 2014 until July 2016. They were eventually granted conditional bail and released by the Supreme Court, one of those conditions being that they should “refrain from addressing public political gatherings pending finalisation of the criminal trial”. Although the Order was made by consent, its effect was that, for as long as they were awaiting trial, these pro-democracy campaigners were deprived of their rights to freedom of speech, assembly and association and to take part in the discourse of public affairs.
‘Also in 2014, a group of seven members of the PUDEMO were arrested and charged under the STA and the SSA. They, as well as Maxwell Dlamini and Mario Masuku, filed separate applications at the High Court to challenge the constitutional validity of the SSA and the STA. All the matters challenging the constitutional validity of the two pieces of legislation were consolidated and heard by a full bench of the High Court, which, in September 2016, delivered its judgment. The relevant provisions of the SSA and STA were held to be unconstitutional and were set aside.
‘Although the Government noted an intended appeal against the judgment, it failed to file the appeal as required by the Rules of the Supreme Court. On 21 November 2017, the Supreme Court struck off the matter and ordered that it should not be reinstated unless with the leave of the Court. On 5 December 2017 the Government filed an application for reinstatement. The application for leave was heard on 13 February 2018. The Supreme Court’s reserved judgment allowed the appeal to be reinstated, finding that: “…the importance of the matters arising from the appeal and form the view that it would leave a bitter after taste in the Court’s palate for such serious matters to be decided by default as it were, due to the confusion that seems to have reigned at the office of the Attorney-General”.
‘The persecution through the law and prosecution of HRDs and legitimate prodemocracy campaigners continue unabated, even in the face of recommendations of the UN’s Universal Periodic Review (UPR) process. Although, in both the 2011 and 2016 UPR of Swaziland, the Government accepted recommendations to fully align the SSA and STA with the Constitution of Swaziland and the State’s obligations not to impede the right to freedom of expression, association and assembly, it has failed to do so.’
The ICJ report added, ‘In 2017, the Government of Swaziland amended the STA and repealed the Public Order Act (POA). The amendments to the STA are very cosmetic, while the new POA is comprehensive. Under section 28(1) of the POA, the Minister responsible for national security and the Police Service (the Prime Minister) has published the Code of Good Practice. Although the requirement of a permit for holding public gatherings and processions has been dispensed with in favour of a notice procedure, the local authority and/or the Commissioner of Police have the power to prohibit an intended gathering.161 Given the wide discretionary powers of the National Commissioner of Police to prohibit events,162 there is concern that such prohibition is may be applied in an arbitrary, unnecessary and/or disproportionate manner, contrary to international human rights standards on the regulation and policing of gatherings.’
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