After a lapse of six years, Eswatini’s Supreme Court has controversially condoned and reinstated an appeal by the government against a 2016 high court judgment that had declared swathes of the country’s terrorism and sedition and subversive activities laws to be unconstitutional.

The 2016 high court judgment had ruled that the 1938 Sedition and Subversive Activities Act and the 2008 Suppression of Terrorism Act violated several rights to freedom enshrined in the constitution. The verdict was considered a landmark decision upholding the rule of law against the absolute monarchy of King Mswati III.

Now Swazi democrats fear a decision by the Supreme Court on 22 September to allow the state to appeal against the historic high court judgment will almost certainly lead to it being overturned. 

The state’s appeal had effectively lapsed in 2018 after months of unexplained delays, missed deadlines and breaches of court rules by the Attorney-General’s office in presenting its case.

The Supreme Court judgment delivered by Judge Mabandla Manzini last week did not examine the reasons for these delays. But it condoned them anyway, saying that the constitutional issues at stake in the case were too important to be decided by default — meaning, in effect, that the case should not be decided by the ineptitude of the Attorney-General’s office.  

Thulani Maseko, the human rights lawyer who was one of those accused of sedition in the case which prompted the original judgement — and had also represented five other accused — slammed the Supreme Court’s ruling.

“This case reflects the highest rot, corruption and lack of independence and impartiality of the judiciary and the highest court in the land,” Maseko told Daily Maverick. 

He said the Supreme Court’s ruling was “flimsy, baseless, both factually and legally incorrect”. The Supreme Court was going all-out “to assist the government to prosecute and persecute us”.

Maseko said the government had offered the court no legally plausible reasons for its delays in filing its appeal. And the Supreme Court had departed from its own precedents on condonation so as to help the government prosecute its appeal.

The protracted legal saga dates back to 2008 when a bomb exploded under a bridge on the Mbabane-Manzini highway near  King Mswati’s palaces at Lozitha.

Musa John Dlamini, a Swazi, and Jack Govender, a South African, died in the explosion. Their accomplice, Amos Mbedzi, also a South African, was arrested, charged under the new Suppression of Terrorism Act, tried, convicted and sentenced to 85 years in prison. He died earlier this year, after having been transferred to a South African prison when he fell ill.

“I spoke and called them heroes of the Swazi struggle because government had compelled them to use other means of expression,” Maseko recalls. “For this, I was charged under the Sedition Act (the Sedition and Subversive Activities Act).

“In the same year, Pudemo (People’s United Democratic Movement)  was listed as a terrorist organ under the Suppression of Terrorism Act  and Mario Masuku, then its president, was arrested and charged for supporting a terrorist group.

“In 2014, I was again arrested and charged together with the editor of The Nation magazine, Bheki Makhubu, for contempt of court for having written an article critical of the then Chief Justice Michael Ramodibedi. 

“In solidarity with us, Mlungisi (Makhanya, current Pudemo president)  and some other Pudemo members came to court wearing Pudemo  T-shirts. Mlungisi and the others were arrested for supporting Pudemo as it had now been listed as a terrorist organisation.”

The men were all charged under the Sedition and Subversive Activities Act and/or the Supression of Terrorism Act. 

Between June 2009 and December 2014, Maseko, Makhanya, Masuku and another Pudemo member, Maxwell Manqoba Dlamini, all filed challenges to the two laws, on the grounds that they fundamentally violated Eswatini’s constitution. 

Their challenges succeeded at the high court, where Judge Mbutfo Mamba and another of the three judges on the bench agreed with them that critical parts of both the Sedition and Subversive Activities Act and the Suppression of Terrorism Act were unconstitutional because they violated the rights to freedom of speech, expression, peaceful assembly and association enshrined in the country’s 2005 constitution — and because they were too wide and broad in their reach.  

The State had opposed their challenges, invoking sections of the constitution which allow limitations on the freedoms in the constitution in the interests of defence, public order, public morality or public health.

But Mamba noted in his judgment that the state had nowhere stated why these limitations on the freedoms enshrined in the constitution had been necessary in this case, or what purpose they were meant to achieve, or what mischief to address or curb.

Mamba noted that in his submission, the justice minister had merely stated the limitations were “reasonably required in the interests of certain public purposes”, without disclosing what those were.

“This… is not an answer to the challenge,” the judge wrote, adding that the state had “failed to satisfy the court that the restrictions and limitations imposed on the applicants’ freedom of speech and expression are either reasonable or justifiable”.

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Mamba noted that the Sedition and Subversive Activities Act made it an offence to “excite disaffection” against the king or the government. But, citing foreign precedent, he said that the very purpose of criticism levelled at government by its political opponents was to undermine public confidence in their conduct of public affairs and to persuade the electorate that their opponents would make a better job of it than those presently in office.

Turning to the Suppression of Terrorism Act (STA), Judge Mamba noted that  “terrorism” was a subjective term and that there was no universally accepted meaning for it. Yet the act allowed the government to proscribe an organisation as a terrorist group and to convict anyone who supported that group, or who committed a terrorist act, and to imprison such a person for up to 15 years. 

Maseko, Masuku, Makhanya and Dlamini, in challenging the STA, had argued that these and other provisions of the act were inconsistent with the freedoms of association and peaceful assembly guaranteed by the constitution. 

They had  also argued that the STA provisions were to some extent inconsistent with the freedom of expression and opinion; the freedom to receive ideas and information without interference; the freedom to communicate ideas and information without interference, and the freedom from interference with one’s correspondence — which were also all guaranteed by the constitution.

The state had argued, though, that any infringement of these constitutional rights of the accused “is justified as may be required in the interests of defence, public safety and public order”.

But Mamba noted that the state had merely stated that terrorism was an offence and that it was necessary to protect the public against it — without offering any facts or material to justify limiting the constitutional rights of Masuku and company.

Mamba also noted that Masuku and the others had been charged under the STA because they were members of Pudemo, a “specified entity” — ie a “terrorist group” — and because they had been found wearing Pudemo T-shirts and berets and chanting its slogans and demands. 

They had effectively been declared terrorists, or criminals, merely on the basis of their membership of Pudemo. Yet they had never been given an opportunity to be heard on the issue of whether Pudemo should have been declared a terrorist group. That omission violated a fundamental constitutional right, he said.

So Judge Mamba ruled that the offending sections of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act were inconsistent with the freedoms in the constitution and were therefore unconstitutional and null and void or invalid.

On 23 September 2016, the state launched its appeal against the high court judgment, and on 11 October gave its grounds for appeal. These included its contention that the onus for proving that the charges against Maseko and company had limited their constitutional freedoms rested with them, not the state.  

The state also said the high court had erred in striking down sections of the Suppression of Terrorism act as bad and unconstitutional on the grounds that the accused had not been given a hearing before being designated as terrorists.

The state said the high court had failed to appreciate that in this case it was Pudemo itself which was in fact challenging the constitutionality of the Suppression of Terrorist Act. 

As Judge Manzini noted, court rules stipulated that the state should have submitted its record of appeal within two months of noting its appeal. In fact, it took the state about seven months to do that. 

What followed was a series of applications for condonation of its late filings, failures by state attorneys to show up for court hearings, applications to the court to condone this, other breaches of the court rules — and applications by Maseko opposing the state’s moves for exoneration for all these infractions. 

By August 2018, the state’s appeal appeared to have lapsed, but last week’s Supreme Court judgment resuscitated it. 

Maseko told Daily Maverick the Supreme Court’s judgment “departs from long-standing judgments on condonation”. This included the court’s own precedent that, in an application for condonation, “the applicant must show that there are prospects of success on the appeal”.

The state had not done that in this case, yet Judge Manzini had made his own assessment that the appeal had prospects of success. 

“This is now new law, and shows apparent lack of consistency from the highest court in Swaziland,” Maseko said.

“And it is a given that, the court having assessed prospects of success of the appeal, the outcome is now a foregone conclusion. What this means in effect is that the judgment of the high court has already been reversed.

“We will go to the appeal for the purpose of going through the legal process, knowing that the case has already been determined against us.

“It is clear that there is one law for the regime and its proponents, and another law for those who oppose it. This judgment represents supreme injustice from the Supreme Court.” DM