Armed masked men were stationed at the entrance to the high court of Eswatini on the day that the court heard the State’s appeal to a 2016 judgement which declared sections of the Sedition Act and the Suppression of Terrorism Act inconsistent with the rights to freedom of expression and association.

But the guns weren’t there for the team of lawyers and group of activists in the courtroom right opposite the entrance, arguing against the state’s appeal. They were there for the man in leg chains who made a brief first appearance in the courtroom to the right, days after his arrest.

Thabo Kunene, popularly known as the Commander for his role as the leader of the Swaziland International Solidarity Forces, was caught with an alleged accomplice in South Africa on 1 June, Swaziland News reported, and not extradited, but “sneaked into Eswatini through informal crossing around Lavumisa”.

The two face 43 charges under the Suppression of Terrorism Act, and the outcome of the long-running constitutionality case may have some bearing on them in due course.

Government’s appeal  

The appeal case is a complicated one, and is being heard as Eswatini approaches another general election on 29 September. The case consolidates four cases challenging the Sedition and Subversive Activities Act of 1938 (in short, the Sedition Act) and the Suppression of Terrorism Act of 2008.

The state on June 12 argued, before a bench of judges headed by Chief Justice Bheki Maphalala, that the case “is about the protection of society from the twin evils of terrorism and sedition”.

The country lives with the “violent implications” of these, advocate Greg Harpur, SC, argued for the state, in reference, amongst others, to the looting and arson that took place here in 2021. Looking at the 2016 judgement, “other terrorist organisations” could contemplate setting up headquarters in the country, he said.

But those who the Eswatini government terms terrorists, are considered freedom fighters by many, for example, respondent number one is the human rights lawyer Thulani Maseko, who was shot dead in an apparent assassination by unidentified assailants. No arrests have been made in the case as yet.  

Read more in Daily Maverick: Leading Swazi activist Thulani Maseko shot dead at his home

The charge against him, under the Sedition Act, goes back to a May Day rally in 2009 where he made a statement commemorating deceased activists. 

Mario Masuku, who was leader of the People’s United Democratic Movement (Pudemo) and who died in 2021 at a government hospital due to Covid-19 complications, is also a respondent. 

Thulani Maseko. (Photo: Supplied)| Thabo Kunene. (Photo: Facebook)| Maxwell Dlamini. (Photo: Wikipedia)| Mario Masuku. (Photo: Wikipedia)

He was charged under sections from both acts for singing songs and chanting slogans at a 2014 May Day event. He spent 454 days in jail before being released, and at the time of his death, the restrictive bail conditions from 2014 were still in place. The state’s appeal in 2016, and subsequent delays, meant that the provisions of both acts were still fully in place.

Read more in Daily Maverick: Historic Swazi court judgment striking down parts of sedition and terrorism laws is under threat

Another respondent, Swaziland Youth Congress (Swayco) leader Maxwell Dlamini was arrested and charged under the Sedition Act after a Swayco rally in 2013 where calls were made to boycott the 2013 national elections.

The last and seventh respondent, Pudemo leader Mlungisi Makhanya, faced terrorism charges after wearing a T-shirt in 2014 bearing the logo of his movement, which had been designated a terrorist organisation.

Counsel for the activists, instructed by the Southern Africa Litigation Centre, argued that sections of the two acts should be struck out because the laws are too broad.

With regards to the Sedition Act, for example, those activists who “merely wanted to attend a rally to express dissatisfaction” were “not trying to undermine the legal structure of this country and cause chaos”, advocate Jonathan Berger argued.

He said good faith criticism of King Mswati III and the Eswatini government and administration, no matter how vehemently or strongly expressed, fell outside of the ambit of the Sedition Act.

Eswatini LGBTQ activist Melusi Simelane, who attended the court case, reckoned the state wanted the case finalised in order to keep using the sedition and terrorist acts “to keep arresting people”, especially in the light of the 2021 uprisings and the subsequent arrest of two pro-democracy MPs, Mduduzi Bacede Mabuza and Mthandeni Dube, who earlier in June were found guilty of charges of sedition, terrorism and murder.

“It is basically about stifling dissent because we have seen the state constantly entrenching itself, whether it’s through expanding the number of people they are hiring in the military and police forces, whether it’s threatening to vet people to run for parliament in the coming elections,” he said. DM

The name of the journalist has been withheld for their own safety and those who spoke to the writer. Daily Maverick does know the writer’s identity.