Maverick Citizen

MAVERICK CITIZEN INTERVIEW

‘We are caught between hope and fear’ — Thulani Maseko, chair of the Multi-Stakeholder Forum in Swaziland/Eswatini

Swaziland/Eswatini’s leading human rights lawyer, Thulani Maseko. (Photo: Supplied)

This is the second interview in a series looking at how activists across southern Africa use the law to protect and advance human rights.

In this interview, Maverick Citizen editor Mark Heywood speaks to Swaziland/Eswatini’s leading human rights lawyer, Thulani Maseko, and discusses the challenges of using the law in a country where a constitutional Bill of Rights and justice system sits in the shadow of an absolute monarchy.

Mark Heywood (MH): Given the protests and repression in Swaziland/Eswatini in 2021 and ongoing struggles and unresolved issues, tell us about your experience of using the law to protect and advance human rights: what are the crucial issues and challenges human rights lawyers and their clients face? 

Thulani Maseko (TM): Swaziland is a very difficult constitutional political environment. We often say that the crisis, both in terms of the politics and the constitutional order, started in 1973 when the late King Sobhuza abrogated what we call the ‘independence constitution’ which had a Bill of Rights in Chapter 3. Then he imposed himself as a supreme authority, usurping all the three arms of what would have been a normal constitutional government with checks and balances.

He assumed executive, legislative and judicial powers. All the powers were concentrated on one centre, being the centre of the monarchy. 

Since that day, there has been this cry for the return of the country to normalcy in terms of democracy, the rule of law and constitutionalism. That culminated in about 1996 when three presidents, Nelson Mandela, Robert Mugabe and Quett Masire of Botswana came to Swaziland to impress upon the current King Mswati III to embrace what appeared to have been a wave calling for democratisation. 

Swaziland/Eswatini King Mswati III. (Photo: Gallo Images / Lefty Shivambu)

That marked the beginning of what the king called the Constitutional Review process. He appointed at least three committees which were mandated to review the country’s constitutional framework with a view to adopt a new constitution. 

But it became a process that was again manipulated and usurped by the king, who did not want to allow the people to engage with the review process in a very transparent and accountable manner. 

So we often complain that what was adopted in 2005 as the new constitution merely entrenched what had existed since April 12 1973: the supremacy of the monarch. This is because, while the constitution pretends to be guaranteeing most of the modern human rights and basic freedoms, the basic structure of that constitution remains such that all power remains with the king. Parliament remains weak in terms of being able to legislate laws that will advance democracy; the judiciary as an arm of government that is supposed to protect and to enforce human rights in Chapter 3 is equally weak because the appointments are done by the king on the advice of the Judicial Service Commission composed of individuals singularly appointed by him. Then the executive, who is the Prime Minister, is an appointee of the king and is not elected.

So what is supposed to be the supreme constitution is a product of pressure from the then three presidents, Mandela, Mugabe and Masire, arising from the people’s call for democratisation of the Swazi state. 

But what we have is an entrenchment of an undemocratic, repressive regime through what is supposed to be a supreme constitution but which does not limit or curtail the powers of the king. That is what is obtaining in Swaziland at the moment. Quite clearly, supremacy is inconsistent with the basic tenets of constitutionalism.

MH: It appears very contradictory because at face value the constitution and quite a number of the laws underneath it are quite progressive. But the structure remains tilted towards the absolute power of the king?

TM: Indeed… you know, when the document was actually enacted in 2005, we applied ourselves in relation to the content of the Bill of Rights. Our observation was that whilst, on the one hand, it seeks to guarantee these basic human rights and fundamental freedoms, on the other hand, it takes them away. So we adopted the phrase that ‘on the one hand it gives you the rights and on the other hand it takes the rights away’. 

We said this because there are a lot of ‘clawback clauses’, almost like the African Charter on Human and People’s Rights, which gave you rights subject to the laws of the land. For instance, if one looks at the most controversial rights, which are the civil and political rights, section 25 guarantees ‘the right to free association and assembly’, but it is only guaranteed within the confines of the system that prevails in the country – the Tinkundla system as entrenched in section 79. 

Swazi King Mswati III (centre) arrives at the annual Reed Dance ceremony, Manzini, Swaziland, 28 August 2016. (Photo: EPA / Shiraaz Mohamed)

Inherently, the Tinkundla is a system that in character is traditional. It ensures that the monarchy is supreme and ensures that as a people we cannot question the way the king governs the country. It says that if people want to vie for public office, they only do so on the bogus individual merit concept – they don’t do so via political party lines. So whilst it says that a person can associate and assemble, such are permitted to do so within the confines of the system, which by its very nature is opposed to political pluralism. 

So it comes to nothing. 

And just on that aspect alone, there has been litigation asking the courts to give meaning to the right to association in the form of allowing political parties to participate in the political discourse. The courts have said under the Tinkundla system people may form political parties, but they may not do so for purposes of contending political power. This is an indication that the courts are equally pliable to the system, as it currently exists.

So if political parties can’t contest for political power, what do they exist for? It’s like they are social clubs. So that’s the problem we are facing; the lack of democracy. 

On that score there has been reluctance on the part of government to put in place a mechanism that will ensure that political parties, if allowed to perform as expected, are recognised in terms of the legislation. But that has been left to be a grey area and there has been no law put in place to ensure that political parties are indeed allowed to exist lawfully and be regulated and contest for power as they deem fit. 

So, this constitution is lacking in many ways in terms of ensuring enjoyment of political association, assembly and expression.

MH: That means political parties remain vulnerable to arbitrary action because there is actually no legal framework: the king can make up the rules as he goes along. The whole purpose of political rights is to improve people’s socioeconomic status. Am I right in understanding that despite the existence of the Constitution, most people remain poor; that there is huge inequality, gender inequality, problems with HIV, most recently Covid-19 and food insecurity

TM: In the context of Swaziland, when you speak about socioeconomic rights, you start just from the basic access to land for a typical Swazi who lives in the rural areas. We are a rural population – many of us live in the countryside. This is important because what we call Swazi Nation Land is controlled by the king. So often we are told that the king holds the land and the country’s resources in trust for the nation and he does so through his henchmen who are then the chiefs. 

The arrangement of the powers of the king vis-a-vis the chiefs are then entrenched in Section 233 of the constitution, where it says the chiefs are actually footstools of the king. 

Evidence of violence by Eswatini military and police. (Photo: Supplied)

So for a typical Swazi to have access to land, he must pay allegiance to the chief. This means that you have no right to question how the chief at a local community level rules over the people, because if you are seen as somebody who is a dissident, you run the risk of being deprived of land. If you are deprived of land, it means you increase the level of poverty in Swaziland, because land is the vehicle to a decent livelihood.

So, just on that level, people don’t have title over the land because you use the land at the pleasure of the chief who controls it on behalf of the king to ensure that people are pliant to the wishes and commands of the king. That’s on the first level. 

On the second level, women in our country have been denied the right to land using the concept of culture, tradition and custom. If a woman is to be allocated a piece of land, culturally and traditionally she must hold the land either through the husband… if no husband, it should be through one of her sons – it must be held by a male. 

So this means the people who actually bear the responsibility to even manage households – women – are disadvantaged in terms of accessing land just to run their day-to-day affairs in Swaziland.  

On the third level, we have got this massive unemployment rate in Swaziland. There is massive HIV/Aids, not to mention the effects of Covid-19. 

Government in our view has not been able to account for resources, which were intended to alleviate the effects of Covid. Many people have lost their jobs in the wake of Covid. There’s massive youth unemployment in Swaziland… this has been escalated obviously by the pandemic. 

The country is going through a huge socioeconomic problem in terms of jobs and just the standard of living… the poverty levels are quite high. 

On the contrary, we have the king and his cronies living an exceedingly lavish lifestyle while rendering the masses of the people poor. What’s more, the king’s business interests through proxies make it difficult for ordinary people to take part in the economy as he unfairly competes with them, even when it comes to the government tender system. The king has his fingers everywhere.

MH: What’s it been like practising as a human rights lawyer in this environment? I’m sure it’s not been easy. For example, I know that you have spent two years in prison for your human rights work. 

TM: There are many of us now in the legal profession who compare the courts as they exist today and the courts as they existed prior to 2005. Before 2005 we used to have very senior white judges coming to sit in Swaziland in what used to be the highest court of the land – that’s the Court of Appeal, now the Supreme Court. We used to have people like the late Jules Browde, you would have people like Steyn, Tebbutt and Bech, to mention some

You would have many of the experienced white South Africans sitting in our courts. 

Evidence of violence perpetrated by Eswatini military and police. (Photo: Supplied)

Comparatively, we have a view that even without a supreme constitution with a bill of rights and the presence of the 1973 proclamation which had no Bill of Rights, but a draconian piece of law, the courts then were doing a better job just using common law principles to protect and advance human rights of the poor and vulnerable. They would interpret legislation in such a way as to minimise the oppressive laws that were in existence. 

We then say post-2005 we have seen a decline in the way the courts in our land seem to interpret even the basic human rights in Chapter Three of the constitution. Many lawyers argue that the presence of the 2005 constitution has not improved the independence of the judiciary, even though there are some judges who try to interpret the laws in a manner that advances human rights and democracy, though relatively few in number.

Many of us who are in the human rights movements say that this Bill of Rights is meaningless if there is no independent and impartial judicial system. Because of the manner of the appointment of judges, you find that many of the people who are appointed in the higher courts are obviously in bed with the system. 

We call them “judges of the system”. They look at and interpret the Bill of Rights in a manner that will not offend the system and the powers that be. So, we say that there is generally hostility with the way the courts perceive the implementation, interpretation and enforcement of human rights in Swaziland, because at the back of their minds they understand that the system that exists is a system that is by nature inherently opposed to the enjoyment of basic human rights and fundamental freedoms. It’s a system that is biased in favour of supremacy of the king and royal family and the situation of supremacy is inconsistent with the principle of the rule of law, and constitutionalism and justice. 

That’s the problem we are faced with in Swaziland. 

As I say, the manner of appointment of judges leaves a lot to be desired. We think that cronyism has crept into the appointment of judges. In the Supreme Court, we often have acting justices and there has been a recycling of individuals to “permanently act” in the Supreme Court. 

One of the fundamental tenets of an independent judiciary is that people must enjoy the security of tenure. We see the continuation of acting appointments as a way of ensuring that the judges are unable to apply themselves fairly on the law so that they keep being made to act, thereby undermining the principle of the rule of law in Swaziland. 

An Eswatini police officer and an injured protester. (Photo: Supplied)

MH: How long have you been a lawyer for? 

TM: I have been a lawyer for a short period, only since 1999, in Swaziland. 

MH: And yet you continue to practice law in this system and under these circumstances. Why?

TM: The law is supposed to be a tool to protect the vulnerable of society and to promote the common good. In a situation where the law is used as a tool of oppression, difficult as it may be, we need to find the small spaces and opportunities to advance the rights of the people. And you do so with the hope that you’ll get a judge who will be sympathetic to the cause and to the rights of the oppressed. 

From time to time you do score some small victories, depending of course on who is the judge that you are appearing before, but most of the time we do not succeed because of the very setup in our courts, the politics and the way the law is set up. You do have a sense of frustration. 

You might remember you do have people in South Africa who used the law to fight for justice. We obviously get inspiration from the old guard lawyers such as Bram Fischer, George Bizos and many others there and elsewhere, such as Thurgood Marshall in the United States, who stood up for human rights in the face of adversity. 

We know there is a price to pay for standing up for human rights. You know they went through some levels of frustration themselves. But know you are caught in between deciding whether to give up or keep going. You find that you have an obligation to keep going, difficult as the situation may be, with the hope that one day there will be a breakthrough in terms of creating a society where the rule of law is a basis of government in the country.  History has taught us no situation is permanent.

MH: Are there many human rights lawyers in Swaziland?

TM: We have learnt that fighting for human rights is never for the fainthearted. Nevertheless, we think that post-June 29 2021, there have been a number of lawyers who felt compelled not to stay on the fence, as it were. They felt compelled to stand up and be counted. The number of lawyers willing to stand up and defend the rights of the people has increased since June 29, July and today. But it’s not a big number. We can count up to 15 to 20 individual lawyers who have said, look, we can’t just be watching while the country and the people are made to go through a period of untold suffering.  

We’ve never before seen what we saw on June 29 – this was the first of its kind where the state has become so brutal and massacres innocent civilians. So people felt conscientiously compelled to stand up and be counted. 

MH: You get thrown into prison and you still practice the law in Swaziland. It seems there are a lot of people, not necessarily lawyers, who have left the country because they feel in danger. Do you?

TM: Well, every human rights defender is vulnerable. But as an attorney you face a double jeopardy because, in the first instance, the pool of clientele that gets to consult you is limited to people who themselves are standing up to the system. Often these people don’t have resources even to pay the bill to advance the cases. 

On the second level, as I said, we are going through a period of massive poverty in Swaziland. Other than the fact that the people who tend to be clients are people who are fighting the cause, you also receive people who have either been dismissed from work, people who are being abused by chiefs, who themselves will need to be supported not only legally but also in terms of resources. So you find yourself sacrificing your time on work that does not pay the bills. 

Chief Albert John Luthuli at London Airport ready to board a plane to Oslo where he is to be presented with the Nobel Prize for Peace, 8th December 1961. (Photo: Keystone / Getty Images)

There are a number of colleagues who have these experiences. I think it was Chief Albert Luthuli who noted that the way to freedom goes via prison! This is absolutely correct. One has to come to terms with this reality and keep on keeping on… there are many legitimate human rights defenders and democracy campaigners who have seen the inside of jail, but they do not give up the fight.

MH: Do you run a private practice for profit but end up doing a lot of public interest work or do you work in an NGO where you practice as a lawyer?

TM: I’m running a private law firm for a livelihood as an attorney. So from time to time you defend the rights of workers, you defend the unions, and then you defend your legitimate pro-democracy activists and people who feel they have been abused by the state. You defend those people who have been evicted by chiefs for one or other reason. 

But I run a law firm that would have been for gain, but in a situation where people are poor, you don’t make profit (laughs). You are happy to provide the service as best you can under difficult and trying conditions. So, the fight for democracy, human rights and justice is real.

MH: You keep on dodging my questions about your own vulnerability as a human rights lawyer. I presume you are not popular with the king and with the prime minister, and with the authorities and probably with most of the judges. 

TM: Absolutely, there are a number of activists who are not popular with the regime. I am just counted among many. We are not popular with the king because at the end of the day it is him and the issue of the monarchy that we seek to dislodge from power. Power must be returned to the people so that people can elect a government they see fit, and be able to live a normal life without this whole idea that the king is a superhero or has got some divine power. 

Evidence of violence by Eswatini military and police. (Photo: Supplied)

People must understand that he remains a human being, fallible like all of us. There is no magic in being a king.

Of course, it almost comes naturally that if you question somebody’s power, you become unpopular. Indeed, you become unpopular with all the government structures… unpopular with the police, as an attorney you become unpopular with some of the judges. 

When my office was acting for the two arrested MPs, it was reported there was a feeling that their prospects of success in the courts were minimal if they used my office as their attorney. I had to withdraw my services to allow the process to run smoothly. 

These are the kinds of challenges we face, suggestions that human rights lawyers will compromise the outcome of a case. Whether they are right or whether they are wrong, we have to live with these perceptions and focus on the task at hand.

Generally and quite often you get clients being influenced to withdraw you or your office because they are made to believe that their prospects of success in the courts will be compromised. 

Of course, one must say that in recent history the judicial system has been abused. You hear that people have had access to judges… matters get to be discussed behind closed doors and the outcome is predetermined even before the case is heard. People tell you that they have access to the Chief Justice and they discuss issues in the absence of one of the litigants, or one of the lawyers. 

I think this manifests itself as corruption within the judicial system itself, and if you are somebody who stands up to corruption, you are obviously out of favour with some of the judges. 

We know as a matter of fact that some of us are not liked by some of the judges in our courts for our standing up for judicial independence, impartiality and accountability. I know of some colleagues who have been told point blank by some judicial officers that they will not accept or handle work from their offices. 

Images and videos of murder, torture, beatings, torchings and other violence in Eswatini have emerged, showing a kingdom where human rights do not exist. (Photo: Supplied)

People in power often don’t want to be held accountable. If you are calling upon them to write judgments that make sense, they think that you are insulting them. But the only way you can hold a judge accountable is by the way they write their judgments, and the reasoning thereto. 

If you go to court and make submissions and the outcome that you get is something that doesn’t make sense in law, you have to question it. Question it in a manner that is not insulting to the dignity of the court. In an environment where any form of dissent is not acceptable, you run the risk of being accused of undermining the dignity of the court. It is history now that the editor of The Nation magazine and I faced the might of the law when we questioned the abuse of power by the then Chief Justice.

So when I appeared, for instance, in the second bail application of the two MPs, the way the judgment was crafted still doesn’t make sense to me, but you could see that the judge had a predetermined outcome. She was sure that she wasn’t going to give the two MPs bail and she would use every reason that she could find just to make sure that the outcome of the bail application was against the MPs. 

So these are all the things that we are complaining about, just in terms of legal reasoning of some of the judges… they fall far below what we expect to be standards. 

MH: An activist told me that that particular judge is the sister-in-law of the king and the wife of the attorney-general. Is that right? 

TM: Yes, she is the wife of the former attorney-general. And that former Attorney General now sits as one of the Supreme Court judges. She herself is a former Director of Public Prosecutions. 

She is actually the judge who prosecuted many in the pro-democracy movement. She is somebody who filed charges against Mario Masuku [the former president of Pudemo] during his time. Some of the Pudemo activists who are out on bail were charged during her time as a prosecutor. 

I myself was charged under the Sedition and Subversive Activities Act, 1938, when she was the Director of Public Prosecutions. So you can see that the recruitment of judges from the office of the DPP and the Attorney General, in my view, compromises the very independence and impartiality of some of the judges and many of them have served in those two offices. 

MH: And the two MPs who are still in prison awaiting trial? Have they dropped you because of the suggestion that you are a liability to them? Are you still representing them or did that pressure succeed?

TM: No, they actually asked me to step aside from the matter. So I had to withdraw from acting for them as they instructed. Everyone has a right to hire and fire an attorney as they see fit. It happens every day in the life of an attorney. 

I wish not to comment on whether the pressure worked. For me as an attorney and for us in the pro-democracy movement, there can never be any justification to keep anyone in jail unfairly, and we do believe that the three MPs [including Mduduzi Simelane, who is in exile] are being targeted wrongly and unfairly by the king for standing up for democratisation. 

We have to escalate the campaign for their immediate and unconditional release. There is no legal justification for them being kept in jail, save that the king and government are using them to instil fear in those campaigning for democracy, especially within parliament. This is an unlawful and malicious prosecution through judicial persecution.

MH: On 29 June and over the following weeks, more than 80 people were killed – shot by the police. There’s been a report by the Human Rights Commission that, even if it downplays the extent of the killings, still finds the state and the police were responsible for shooting people, for detaining people for long periods of time. 

What are the critical legal issues you face now? I understand there’s been a complaint laid with the International Criminal Court. Is there a litigation strategy by you or anybody else to try to get to the truth of what happened? To try to get justice for the people who were shot? What do you do now as a human rights lawyer in this very brutal and repressive environment?

TM: As I said, there have been a number of lawyers who found themselves compelled to be involved one way or the other in defence of human rights. We agreed that, in the first instance, we need to file civil claims for and on behalf of most if not all the people who were brutalised, massacred and whose limbs were shot and broken by the state. We decided to file a huge number of letters of demand just to ensure that those claims do not lapse in law. 

The next level would obviously be to issue summonses against the government, but we know that they will oppose it. They are actually defending all these actions. 

But it is a worthy exercise that must be done with a view to find accountability and to assist the people get some compensation for this brutality. It’s a long process… it might take up to five, 10 years or more. 

We were hoping that there would be some kind of willingness on the part of government to say, those people who found themselves to be victims would be compensated somehow. Then we would only be debating the quantum of the compensation. However, we are not hearing anything of that nature from the government. 

So we are proceeding with civil claims for the individuals who were brutalised, but obviously there are people who might not be accounted for. 

We use 80 as conservative for the number of people who were killed. Many people who were killed by state organs cannot be traced. Some people were thrown into a fire at one of the companies in Matsapha, for example. And the company, as far as we know, has never come out to deny the allegations levelled against it. We don’t know how many people suffered that kind of torture and horror.  

That takes me to the second question of criminal accountability by those who perpetrated these heinous crimes against the people. 

I heard that some people were spearheading a complaint at the ICC, but I think that that move was done in haste because the ICC process is also complicated. You need to have the evidence; you need to have the information in relation to the type of atrocities that the government perpetrated. We have sort of agreed with some colleagues to collate the information and consider whether we can actually build a case for the king’s government to account for these atrocities at the ICC. So we are still at the level of collecting the data. 

It is difficult because even if people know that a relative of theirs was picked up by the police in the middle of the night, when people go to lodge a complaint with the police, they don’t get any assistance. Yet we need those criminal records. 

Even those people whose post-mortems were conducted, it is difficult to even determine the cause of death because many of the government pathologists do not want to disclose the cause of death. There are a number of such cases.

There are some cases where we were assisted by Amnesty International and who brought some independent pathologists from South Africa to do some of the autopsies. Perhaps it could be a good starting point to use those cases as a basis to launching a criminal complaint at the ICC. But the setback is that Swaziland is not a signatory at the ICC. We need to find a way to get around that legal requirement. 

But I’m sure we will consult the people who are better informed about the ICC processes and see how we can bring accountability to the government. It’s a matter that we can’t take lying low. We need to ensure that there is accountability for the atrocities that were committed against our people. To the extent that even if we do not get to the ICC, there is plenty of appetite within the Mass Democratic Movement that, when the time comes for democratisation, there will be put in place a mechanism for accountability for the massacre.

MH: After President Ramaphosa visited in November 2021, the king promised that there would be a national dialogue to address the underlying issues that were behind the protest. Do you have any hope that things can be resolved through a national dialogue? What is the mood of the people now in Eswatini? Looking at it from afar, it seems that it’s very difficult to sustain protests against that level of repression and brutality, and so it looks as though people have been beaten back to some extent. 

Will you make a few concluding comments on where you think the country stands at the beginning of 2022 in relation to these big democracy issues and their resolution?

TM: That’s a really fundamental issue because we are caught between hope and fear. 

While we are hoping that SADC, through the SADC Troika, and the president of South Africa will be able to impress on King Mswati to embrace a peaceful process towards transformation, we also have a fear that the king is doing everything he can to undermine that process. Very much so, because if one looks at the press statement President Ramaphosa issued on 2 November 2021, he mentioned that we’ll begin a process that will lead to the setting up of a national dialogue forum, and he said that parliament will have a role in the process. He also said that the king’s Sibaya – the national meeting that the king usually convenes in the residence of the queen – would also have a role to play. 

So, it’s unclear how the process will unfold if Sibaya has a role. We think we might have an opportunity that is missed because if the process will be located in the domain of the king, he will then use his powers as the traditional ruler to frustrate a normal dialogue process.  

We believe that a normal dialogue and negotiation process should happen outside the fora of the traditional structures. Sibaya is, for all intents and purposes, a traditional structure that is incapable of resolving the political and governance crisis.

The Mass Democratic Movement under the Multi-Stakeholder Forum and all the legitimate political parties under the Political Parties Assembly have made it clear that Sibaya can never be the appropriate forum for the national dialogue, and we reject with contempt the call that we must use Sibaya as the place for the dialogue.

So on the one level we are hoping that SADC would help us avoid a situation where the king runs away with the process, as he seems to be doing right now. 

On the other level, we have our fears that if the situation is not arrested by ensuring that the king makes a clear commitment to a process that will be mediated by SADC at an independent and neutral venue, then the levels of violence might escalate. In a situation where the people have got no avenue to express themselves because peaceful protests have been violently crushed by the state, people will find other means of expression. Right now there is a standing order that says no protest must be allowed to take place in Swaziland. 

How else should the people express themselves? 

So there is a danger that the people will begin to take the law into their own hands in an attempt to ensure that the king does take their legitimate demands seriously. 

And one may add that the continuation of the prosecution and arrest of the two MPs and the hunting down of MP Simelane is a clear signal that there is no commitment on the part of the king to engage in meaningful dialogue – because these are the people who, within parliament, were saying ‘let us use the parliamentary process to review and amend the constitution so that, come 2023, the people are allowed to elect the government’. 

The result of that legitimate call has been that they have been kept in jail. There is no evidence whatsoever to show that they committed the crimes of terrorism that they are charged with. There is no evidence to suggest that they have committed the crimes of undermining or violating the Covid-19 regulations – except that they were speaking a language that the king is obviously annoyed with… he doesn’t want to let go of the power to have the people elect the prime minister. 

We were hoping that we were going to agree, at the bare minimum, that the two sides – meaning the side of the government and the side of those of the people legitimately advocating for democracy – would have an opportunity to sit down, even just for one day, and speak about what kind of dialogue we are envisaging in the first instance. And then talk about creating an environment where the dialogue happens, where the climate is conducive for engagement: meaning those people who are being kept in jail will be released so that they are part of the dialogue; those people who have left the country – and there are a lot who have left; many to South Africa – are allowed safe passage to return home, unconditionally… no one is saying anything about those things. 

We are hoping that the terms of reference of the dialogue would be an issue that’s on the table. Government presenting their views on how the terms should look like. We should present our views on how the terms should look like. So that we can have some kind of understanding of how we see the process unfolding, and find common ground. 

Right now those things are not being spoken about, so we are very concerned that what the king and Ramaphosa agreed upon is not being implemented.

MH: You have mentioned how you represent individuals, represent trade unions, protesters and so on. Do you work closely with civil society organisations as their lawyer? I see, for example, there is a multi-stakeholder forum. D0 you at times operate as the legal representative of civil society coalitions that are trying to engage on these issues of democracy? 

TM: Yes, my office does from time to time represent pro-democracy civil society organisations and activists. 

Right now, the focus of the Multi-Stakeholder Forum is to ensure that if we move towards a negotiation, we harmonise our approaches about what the negotiation must achieve. The focus is to bring everyone together so that we can speak with one voice in relation to how we can dislodge the oppressive regime and move into a multi-party dispensation post the negotiation. 

Post-negotiation, I’m sure people will go their different ways as we prepare for an election.

There is not much litigation going on right now except to represent those who are still facing charges arising from the June, July massacre. DM/MC 

Note on the use of Swaziland/Eswatini: In 2018 King Mswati III unilaterally changed the name of Kingdom of Swaziland to Kingdom of Eswatini in an act that many regard as another abuse of his powers. For this reason, many amaSwati people and pro-democracy organisations continue to use the name Swaziland.

An article by Mark Heywood reporting on the uprising in Eswatini in 2021 can be found here.

The first article and webinar in this series looking at how activists are using the law in Mozambique can be found here

The work to produce this article is supported by the German federal foreign office and the Institut für Auslandsbeziehungen (IFA) Zivik funding programme. The views in this article do not represent those of the German federal foreign office or the IFA, and these entities have had no involvement in the production of the content.

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