Has Swaziland Become a Sanctuary for Human Rights Violations?
When a certain Swazi human rights lawyer decided to make a controversial statement on Workers` Day recently, he was arrested and charged under section 5 of the Sedition and Subversive Activities Act of 1938.
When a certain Swazi human rights lawyer decided to
make a controversial statement on Workers` Day recently, he was arrested
and charged under section 5 of the Sedition and Subversive Activities
Act of 1938. He allegedly portrayed as freedom fighters two men who
died in what the government claims to have been a botched terrorist
attack on a bridge. Without addressing the merits of the pending case
before the Swazi courts, it would be useful to analyse some of the
salient provisions of the Constitution of the Kingdom of Swaziland Act
of 2005 in relation to this Act of 1938.
On the face of it, the Act is arguably inconsistent with the new
Swazi Constitution of 2005, which has now changed the Swaziland’s
constitutional order. Exactly 67 years after the promulgation of the
Act, the Constitution proclaims in its preamble, “Whereas we the people
of the Kingdom of Swaziland do hereby undertake in humble submission
to Almighty God to start afresh under a new framework of constitutional
dispensation”. This notion of starting afresh under a new framework of
constitutional dispensation seems to have been somewhat misunderstood
by the Swaziland authorities who pressed charges against the human
rights lawyer who had decided to exercise his right to freedom of
expression.
Section 2 of the Constitution clearly states that it is “the supreme
law of Swaziland and if any other law is inconsistent with the
constitution that other law shall, to the extent of the inconsistency,
be void.” The Constitution declares and guarantees fundamental human
rights and freedoms of the individual under chapter 3. The only
limitation to the enjoyment of the human rights and freedoms is that
they are “subject to respect for the rights of others and for the
public interest”. While the limitation of respect for the rights of
others is straightforward, the public interest limitation is somewhat
vague. The question that could be posed here is: - public interest
according to whose standards? The other question is what should
supersede the other, upholding public interest or fundamental human
rights and freedoms?
The Constitution provides under section 14 (2) that these
fundamental rights and freedoms “shall be respected and upheld by the
Executive, the Legislature and the Judiciary and other organs and
agencies of Government, and were applicable by all natural and legal
persons in Swaziland…” More importantly, the section provides that
these rights and freedoms shall be enforceable by the courts as
provided in the Constitution.
According to section 24 of the Constitution, a person has a right of
freedom of expression and opinion. Section 24 (2) (c) of the
Constitution provides that a person shall not be hindered in the
enjoyment of the freedom of expression, which includes the “freedom to
communicate ideas and information without interference (whether the
communication be to the public generally or to any person or class of
persons)”.
The Human Rights Committee has elucidated upon this rights that is
guaranteed under article 19 of the International Covenant on Civil and
Political Rights (ICCPR) in its General Comment 10. Swaziland ratified
the ICCPR on 26 June 2004 and is thus bound by this international
instrument. According to general Comment 10, the right to hold opinions
without interference permits no exception or restriction. The
Constitution mirrors article 19 (1) under on the right to freedom to
hold opinions without interference. While there is no exception or
restriction in the exercise of this right, it is however “subject to
respect for the rights of others and for the public interest” under
section 14 (3) of the Constitution, as stated above. The question,
therefore, is whether in the exercise of this right, the individual
respects the rights of others and public interest. If the answer to
this question were in the negative, then any the charges preferred
against an accused in terms of the Act would be in contravention of the
Constitution.
In terms of section 24 (3) (a) of the Constitution it is provided
that nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this section to
the extent that the law in question makes provision that is reasonably
required in the interest of defence, public safety, public order,
public morality or public health. In order to prove that the Act is not
inconsistent with the Constitution, it must be proved that the Act in
question makes provision “that is reasonably required in the interest
of defence, public safety, public order, public morality or public
health.”
Does uttering a statement that deceased persons were “freedom
fighters” and that a certain bridge be named after them, be said to be
contrary to the interest of defence? The statement does not seem to be
challenging the interest of the defence. Could we possible say that the
statement referring to a deceased and an ordinary structure is contrary
to public safety? Again this does not seem to be the case while the
public may use the bridge, the suggestion of naming such a bridge after
deceased persons cannot be said to be interfering with public safety.
Moreover, the statement cannot be said to be against public order,
public morality or even public health.
The Act provides that anyone “who utters any words with subversive
intention shall be guilty of an offence”. Subversive is defined as an
act of “supporting, propagating or advocating any act or thing
prejudicial” to “public order” or “the security of Swaziland” or
“indicating ... any connection, association or affiliation with or
support for an unlawful society”. The issues which the Swazi courts
will have to decide upon are as follows: - First, is uttering a
statement about deceased persons, branding them as “freedom fighters”
deserving (in their afterlife) to have a bridge named in their honour
(or dishonour as some would argue) supporting, propagating or
advocating any act or thing that is prejudicial to public order or the
security of Swaziland? Second, is this kind of statement indicating any
connection, association with or support of an unlawful society? Third,
could deceased people be said to be an “unlawful society” in terms of
the Act?
If an arguably innocent statement that suggests that a bridge be
named after “freedom fighters” - while they are viewed by authorities
as “terrorists” - attracts criminal prosecution, the question is whether
Swaziland has since become a sanctuary for human rights violations?
Sabelo Gumedze, Senior Researcher, Security Sector Governance Programme, ISS Pretoria
