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.’
See also
SWAZILAND
FAILS HUMAN RIGHTS TEST
SWAZILAND
QUIZZED ON TERROR LAW
SWAZI
HUMAN RIGHTS RECORD KILLS AGOA
http://swazimedia.blogspot.com/2014/05/swazi-human-rights-record-kills-agoa.html
