On Tuesday, 13 August 2024, the Eswatini Supreme Court handed down its long-awaited ruling in the case of Prime Minister of Eswatini and Another v Thulani Maseko and Six Others. The case consolidates four cases brought between 2008 and 2014, which all challenged provisions of the Sedition and Subversive Activities Act of 1938 and the Suppression of Terrorism Act of 2008.

The court reversed the 2016 High Court ruling that found sections 3(1), 4(a), (e), and 5 of the sedition act unconstitutional, holding that ‘the definition of ‘seditious intention’ is to be interpreted as requiring an element of violence or disorder’. The respondents had challenged the offence of sedition for being overly broad, criminalising the act of “bringing into hatred, or contempt or to excite disaffection” against the monarchy or government. In doing so, they argued that the offence risked criminalising expressive conduct that would ordinarily constitute an essential element of democratic discourse.

Requiring an element of violence ensures that the offence aligns with international human rights standards, which specify that expression should be restricted only to instances of incitement to violence or when there’s a direct connection between the expression and the potential for violence. While the Southern Africa Litigation Centre (SALC) appreciates this, we are concerned that by additionally demanding the element of disorder, the Court may have reintroduced the potential for subjective enforcement of the offence by police officers and prosecutors. It’s crucial to balance the need for security with the protection of free expression and fair enforcement of laws.

It’s disappointing that the Supreme Court didn’t seize the opportunity to decisively clarify the vagueness of the offence. However, this decision does offer a foundation for prosecutors to dismiss the numerous charges of sedition against political activists and human rights defenders when there is no connection to violence. This could pave the way for a fairer and more just legal environment.

The Supreme Court agreed that the respondents were arrested and charged for their speech under these laws. However, the Court held that the respondents did not demonstrate how their rights were violated. The Court also confirmed that the respondents had the right to challenge the constitutionality of the provisions under which they were charged before the outcome of their criminal trials. This important finding ensures that people facing prosecution under unclear and arbitrary offences have access to justice to seek recourse from the courts and uphold their rights.

The Supreme Court didn’t find any fault with the provisions of the Suppression of Terrorism Act, some of which the State had since amended in 2017. Organisations designated terrorist entities, including the online publication Swaziland News, can hopefully seek redress from the High Court to review their designation.

So much progress has been made in Africa since the case was initially filed, with countries like Uganda and Zambia repealing the sedition offences. Unfortunately, the persecution of political activists, human rights defenders, and parliamentarians persists in Eswatini. While we honour the memory of Thulani Maseko and Mario Masuku, it is disheartening that harassment and targeting of activists and defenders continue. We are hopeful for positive changes in the future and remain committed to advocating for justice and fairness.

Background Information

The offence of sedition

The Sedition and Subversive Activities Act of 1938 is part of the colonial remnant of British rule. The act was amended in 1983 to increase the sentence to 20 years’ imprisonment.

Over the years, the act has been used against activists to suppress dissent. Often, activists are arrested under sedition charges after participating in demonstrations. They are detained for extended periods just to be acquitted, convicted of lesser offences such as jaywalking or attending a political meeting (an offence under the 1973 Proclamation) or released on bail without ever being brought to trial. In one such instance, in 2000, Mario Masuku was charged with sedition and acquitted after spending 323 days in maximum security prison.

The Supreme Court, in its judgement, emphasised that although other countries have repealed the offence of sedition, it remains vital in Eswatini, where the monarchy has been honoured and revered for centuries. The continuation of the offence in many monarchies supports their ability to maintain some semblance of legitimacy in an era when they have become obsolete. In contrast, Heads of State are elected periodically in democratic countries. For the elections to be free and fair, people must be able to criticise the actions of the incumbent president effectively. The offence cannot be justifiable to the same extent in modern democracies. For activists in a country where the monarch is the Head of State, the offence has a chilling effect on democracy and freedom of expression.

Most recently, on 15 July 2024, the High Court of Eswatini sentenced former Members of Parliament Mduduzi Bacede Mabuza and Mthandeni Dube to 25 and 18 years imprisonment, respectively, ostensibly for the crimes of sedition, “terrorism” and murder. In 2021, the MPs delivered six speeches advocating for democratic reforms. Their central demand was that the Prime Minister should be directly elected by the people, not appointed by the monarch.

The Suppression of Terrorism Act

The Suppression of Terrorism Act similarly has a politically motivated history. The 1973 King’s Proclamation banned all political parties in Eswatini. Following the 2006 Constitution, which entrenched the right to freedom of association, political parties in 2008 applied to the court for an order declaring that “political organisations are entitled and have a right, to be recognised, registered and organise, operate and engage in free political activity in Swaziland.”

Within months, the King signed the Suppression of Terrorism Act (STA) into law, and the Prime Minister declared the People’s United Democratic Movement (PUDEMO), the Swaziland Youth Congress (SWAYOCO), the Swaziland Solidarity Network (SSN) and the Swaziland People’s Liberation Army (Umbane) terrorist entities. Subsequently, the law has often been used to arrest and detain activists and search their houses. For example, in October 2008, Mario Masuku was charged under the Act after he made a speech at the funeral of an activist. On 23 September 2009, on the first day of the trial, he was acquitted after the prosecution had failed to produce an offence, which meant that he had spent 343 days in custody on what was proved to be spurious charges. That same year, Mphandlana Shongwe was charged under the Act for shouting “Viva PUDEMO, Viva SWAYOCO” at a meeting; he was released on bail and never brought to trial. In May 2010, Sipho Jele was arrested at a May Day rally for wearing a PUDEMO t-shirt. He died in custody.

The High Court in 2016 found that despite PUDEMO being a specified entity under the Suppression of Terrorism Act, the applicants were arrested purely for belonging to this group and for wearing its t-shirts and chanting its slogans, which interfered with their rights to freedom of association and freedom of expression. It also held that the government had not provided a legitimate justification for interfering with these rights. In its judgement, the Supreme Court disagreed that the rights to freedom of expression and association had been violated.

The Suppression of Terrorism Act was amended in 2017. The amendments made minor positive changes, including removing from the definition of a ‘terrorist act’, an act that “involved prejudice to national security or public safety.” The High Court held this section vague and overly broad, and the 2017 amendment removed this part.

Section 11 of the Suppression of Terrorism Act specifies that it is an offence to solicit support for a terrorist group knowingly. Section 11 has accordingly been used to arrest individuals who have supported an organisation without having actual knowledge that the organisation they support is involved in terrorism. This results in ‘guilt by association’, which violates the presumption of innocence. The High Court declared sections 11(1)(a) and (b) unconstitutional. They were, however, retained in the Amendment Act.

Section 28 was declared unconstitutional by the High Court and amended to allow a judge to order the Minister to revoke an order designating an organisation as a ‘specified entity’.

Written by Melusi Simelane, Civic Rights Cluster Programme Manager, Southern Africa Litigation Centre