The Supreme Court Judgment paves the way for ongoing repression of freedom of expression in the Kingdom.
The International Commission of Jurists (ICJ) is concerned that an ill-considered judgment issued on 13 August 2024 by Eswatini’s Supreme Court will allow for the continued overexpansive use of national security and counterterrorism laws to violate human rights and fundamental freedoms.
The Court’s decision in Prime Minister of Eswatini and Another v. Thulani Maseko and Six Others overrules a 2016 decision of the High Court, which had declared draconian provisions of the Sedition and Subversive Activities Act of 1938 and the Suppression of Terrorism Act No. 11 of 2008 to be unlawful.
The ICJ now calls on Eswatini to repeal the Sedition and Subversive Activities Act and the Suppression of Terrorism Act or to amend them to comply with Eswatini’s international legal obligations and ensure full compliance with international law.
“Over a long period of time, the Eswatini government has abused these already problematic laws to criminalize freedom of expression, target human rights defenders, and harass, intimidate, and ultimately silence those who exercise their right to public and political participation, including the political opposition in the country,” said Kaajal Ramjathan-Keogh, ICJ’s Africa Director.
The ICJ considers that these laws are vague and overbroad, in contravention of the principle of legality, and non-compliant with Eswatini’s international legal obligations to protect freedom of expression, association, assembly, and political participation.
The overbreadth of these laws and their abuse by the Eswatini authorities was in stark evidence by the conviction and sentencing of Members of Parliament Mduduzi Bacede Mabuza to 85 years and Mthandeni Dube to 58 years in July 2024. The charges, which arose in the context of widespread protest for democratic reform in Eswatini in June 2021, have been characterized by the African Commission on Human and People’s Rights as “politically motivated”. The accused had neither committed nor encouraged the commission of any acts of violence but merely had exercised their right to freedom of expression in advocating that members of Eswatini society should exercise human rights and advocate for democratic reform.
“The newly rendered Supreme Court ruling, along with the prosecution and conviction of Mduduzi Bacede Mabuza and Mthandeni Dube for the exercise of their rights, represents a continuation of the weaponization of the law in Eswatini to suppress political opponents and human rights defenders,” added Ramjathan-Keogh.
Background
The Sedition and Subversive Activities Act of 1938, predating the 2005 Constitution of the Kingdom of Eswatini, contains overly broad and vague provisions that criminalize “seditious intention” or “subversive activities” (Sections 3 and 5). Uttering any words—including statements, speeches, or publications—with such intentions can result in up to 20 years of imprisonment upon conviction (Sections 4 and 5). Similarly, the Suppression of Terrorism Act of 2008 defines “terrorist act” overly broadly to include a wide range of conduct and intended conduct and “terrorist group” to include any designated group (Section 2).
The Supreme Court judgment appears to rely heavily on an interpretation of the Eswatini Constitution which places a double burden on a litigant claiming that a law violates their right to freedom of expression. First, the litigant must prove a restriction or limitation of this right. Second, the litigant must show that such limitation is not reasonably justifiable. This interpretation of the Constitution is inconsistent with international human rights law and standards and is likely to have a devastating and chilling effect on the exercise of fundamental freedoms, including freedoms of expression, association, assembly, and political participation. These Rights are guaranteed in articles 19, 20, 21, and 25 of the International Covenant on Civil and Political Rights (ICCPR), to which Eswatini is a party. They are also guaranteed in articles 9, 10, 11, and 13 of the African Charter on Human and People’s Rights (ACHPR), to which Eswatini is a party.
The Supreme Court, in its judgment, failed to seriously engage with challenges brought to the Acts or their impact on the right to freedom of expression. It adopts an interpretation of the right without reference to Eswatini’s international law obligations, including in terms of the ICCPR and the ACHPR. The UN Human Rights Committee, the supervisory body for the ICCPR, and the UN Human Rights Council, through its Universal Periodic Review Process on Eswatini, have recommended the repeal and/or amendment of the provisions that were before the court.
Under the ICCPR, any measures of restriction on freedom of expression and other fundamental freedoms may only be undertaken when strictly necessary to meet a limited number of legitimate purposes, namely national security, public order, public health and morals, and protection of the rights of others. They must also be proportionate representing the least restrictive kind of measure to meet those objectives. They must also be provided for in law and meet the conditions of legality; in other words, they must be clear and not overbroad. The Human Rights Committee has clarified that the legitimacy of restrictions on expression “may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets, and human rights.”
The Sedition and Subversive Activities Act (Section 5.2) and the Suppression of Terrorism Act (Section 2(2)(j)) justify restrictions on the grounds of public order, safety, and national security, and Eswatini contended that the law is necessary to safeguard these interests (Supreme Court Judgment, paras. 4.1.2, 4.2.2, 4.3.2, 4.4.2). While Eswatini certainly has a legitimate interest in protecting public order and safety, the terms and the scope of application of restrictive measures of the laws in question are neither necessary nor proportionate nor adequately provided for in law.
The Supreme Court judgement was based on an appeal by the government of Eswatini challenging the 2016 High Court judgment that declared the impugned provisions of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act unconstitutional and set them aside. This case consolidates four separate cases brought between 2008 and 2014 by human rights lawyers and opposition party members who had been charged under these Acts.
ICJ attended the hearing on 12 June 2023 as trial observers and noted with concern the absence of interrogation of the various parties’ submissions by the Supreme Court. The Crown’s submissions disregarded the nature of constitutional arguments and international law. ICJ was joined by an esteemed group of persons, including Beatrice Mtetwa, Adv Anna Marie de Vos, and Prof Franz Viljoen.
As documented by the ICJ in a 2018 study, the Eswatini government has consistently used the Sedition and Subversive Activities Act and the Suppression of Terrorism Act to silence, harass, intimidate, and suppress political opponents and human rights defenders in Eswatini. For instance, in 2014, human rights lawyer, the late Thulani Maseko, was arrested and charged under the Sedition and Subversive Activities Act. After being released on bail, he filed a High Court application challenging the constitutionality of the Acts. It is one of the four consolidated cases brought before the courts. In 2023, Maseko was shot and killed at his home. To date, there has been no reported progress in the investigation of his apparent murder.
Eswatini, which gained independence from British colonial rule in 1968, remains the world’s last absolute monarchy. Under this absolute monarchy, King Mswati III holds absolute powers, while political parties are banned, and dissent is heavily restricted.
The country adopted its current constitution in 2005, which enshrines certain fundamental human rights. These include freedom of conscience, thought, or religion (Article 23), freedom of expression (Article 24), and freedom of assembly and association (Article 25).
For more information, contact:
Kaajal Ramjathan-Keogh, ICJ Africa Director, e: [email protected]
Timothy Fish Hodgson, ICJ Senior Legal Adviser, Economic, Social and Cultural Rights, e: [email protected]