Eswatini upholds contentious anti-terrorism, anti-sedition and subversive activities laws

14 Aug 2024

A decision by the Supreme Court of Eswatini has provoked fears that the state will use two controversial laws against political activists and human rights watchdogs.

The Supreme Court of Eswatini has ruled that the country’s controversial Suppression of Terrorism Act (STA) and Sedition and Subversive Activities Act (SSA) are in fact constitutional – overruling the Eswatini High Court which had declared that significant sections of them violated constitutional rights to freedom of expression and of assembly.

This week’s decision by the supreme court has provoked fears by Eswatini political activists and human rights watchdogs that the state will use the two laws against them to suppress legitimate political activity.

The high court had declared key sections of the two laws unconstitutional as far back as 2016 in a case brought by the late human rights lawyer and political activist Thulani Maseko, Swayoco leader Maxwell Dlamini and Pudemo leader Mario Masuku.

They and other members of the banned political organisation Pudemo had been charged in 2014 under the two laws for various separate political statements deemed seditious or subversive or for promoting the cause of Pudemo.

The high court had ruled that the two laws violated their rights to freedom of speech, expression, peaceful assembly and association enshrined in the country’s 2005 constitution — and also ruled they were too wide, vague and broad in their reach.

The state appealed against the high court ruling six years after it was delivered, long after the deadline for doing so had expired but in 2022 the supreme court condoned the late application on grounds which Maseko said at the time were spurious. In January last year, Maseko was shot dead at his home near Manzini, a crime which the state has still not solved and which was widely believed to have been a political assassination.

In June this year, the supreme court heard the state’s appeal and this week issued its ruling upholding the appeal on all the main counts.

Read more: Thulani Maseko: Honouring a brave defender of human rights murdered in Eswatini

Limited rights

In essence, the court ruled that their constitutional rights and freedoms which Maseko and the other activists claimed had been denied them by their prosecutions under the two Acts were secondary to the rights of a person to life and security. And it said that these were the rights protected by the two laws in dispute, the STA and the SSAA.

The latter were absolute rights, “not to be derogated from” which were protected by section 38 of the constitution, whereas the rights claimed by the activists were not enshrined under section 38 and were protected only in as far as they did not infringe on the rights, freedoms and legitimate interests of others.

The court endorsed the state’s argument that this constitutional requirement that persons must respect the rights, freedoms and legitimate interests of others was stronger in Eswatini relative to some other countries “because the Eswatini constitution demands a level of patriotism and loyalty from citizens”.

The supreme court also disagreed with the high court that the onus for proving that limiting a person’s constitutional rights was justifiable lay with the state. The supreme court said the onus lay with those claiming their rights had been unjustifiably restricted and that Maseko and his colleagues had failed to do this.

Read more: Activists call for ‘decisive’ SADC action on crisis-ridden Eswatini ahead of Harare summit

The supreme court also based its judgment in part on “the doctrine of constitutional avoidance” which it said was well established in Eswatini law that “if a matter is capable of a decision or determination on any other ground than a constitutional one, the latter ground has to be avoided”.

The court also upheld the state’s argument that the STA Act was justified on grounds that there was a worldwide need to adopt counterterrorism measures, that the STA Act followed internationally applied wording, that in the absence of the STA Eswatini could be considered as a soft target for terrorist activity due to ineffective legislation and that it was designed to deal with the inadequacies of ordinary criminal law in dealing with terrorism.

The supreme court also dismissed the argument of the complainants who had been charged for membership or support of the proscribed organisation Pudemo, that they had been denied the opportunity to argue against Pudemo being proscribed.

The high court had accepted this argument but the supreme court ruled that the government could not be expected to find out in advance of an organisation being proscribed who the individual members of such an organisation might be in order to give them an opportunity to argue against the organisation being proscribed.

The supreme court also dismissed the complaint of the activists that their mere membership and support of a proscribed entity – Pudemo – had been criminalised without there being a contention that the support was in relation to the commission of any further crime. They said this unjustifiably limited their constitutional right to freedom of assembly.

But the court said the respondents had failed to explain why constitutional protection should be given to persons who solicited or gave support to terrorist groups or to the commission of terrorist acts.

It added that “the mischief sought to be avoided and combated by the sections of the SSA and the STA Acts under consideration herein, is a selection of acts encompassing violence, harm and destruction, be they proposed, incited, promoted or committed or supported by individuals or groups.”

It said these features of the two Acts accorded with international provisions including the Commonwealth Model for anti-terror law.

“Prime facie it is difficult to see how acts of violence or harm or destruction or the incitement or promotion or support thereof can enjoy protection under the constitution…” the court said. It added that the activists had failed to demonstrate why it should be.

The court also rejected the high court’s judgement that the offences referred to in the two Acts such as “seditious intent” or “terrorist acts” were overly vague. For instance, it noted that “seditious intent” should clearly be interpreted as requiring an element of violence or disorder.

‘A dangerous sign’

Amnesty International’s Deputy Director for East and Southern Africa, Vongai Chikwanda, said:

“The Supreme Court’s decision to uphold this repressive legislation is a major setback for human rights in Eswatini. The authorities must immediately repeal the Act, or significantly amend it so that it is precise, targeted and fully in line with international human rights standards.

“The law in its current form poses significant threats to freedom of expression, association and peaceful assembly. The Suppression of Terrorism Act is overly broad and vague, and authorities have frequently used it to arbitrarily arrest and prosecute dissenters and suppress media, including by branding political opponents, activists and journalists as ‘terrorists.’

“The fact that Eswatini’s highest court has given the Suppression of Terrorism Act its stamp of approval is a dangerous sign for the future of human rights in the country, especially because repression is already widespread.” DM

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Limited rights

‘A dangerous sign’