Swaziland’s Attorney General Majahenkhaba Dlamini is to appeal the High Court ruling that sections of the Suppression of Terrorism Act and the Sedition and Subversive Act are unconstitutional.
Now, the decision reached by High Court Justices Mbutfo Mamba and Jacobus Annandale on 16 September 2016 will not take effect unless the Supreme Court determines the matter.
The notice of appeal was filed by the office of the Attorney General on Friday (23 September 2016). No grounds for the appeal have been made public.
The High Court justices had ruled that the Acts contravened provisions in the Constitution on freedom of expression and freedom of association.
Thulani Maseko, a human rights lawyer; Maxwell Dlamini, Swaziland Youth Congress secretary-general; Mario Masuku, president of the People’s United Democratic Movement (PUDEMO) and Mlungisi Makhanya, PUDEMO secretary-general, brought four actions against the Swazi state.
Responding at the Swazi High Court were the Prime Minister, the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Attorney General.
Justice Mbutfo Mamba and Justice Jacobus Annandale ruled that various sections of the Acts were inconsistent with the Constitution. They said S14(1)(b) of the Constitution, ‘guarantees and declares freedoms of conscience, expression and peaceful assembly and association as fundamental human rights’.
The applicants had been charged with offences under the Suppression of Terrorism Act because they are members of PUDEMO which is a banned organisation in Swaziland, where King Mswati III rules as sub-Saharan Africa’s last absolute monarch. The judges’ ruling stated, ‘They were found wearing T-shirts and berets of such organization and also chanting its slogans.’
The judges also stated that the Act did not describe what a terrorist was. ‘Generally speaking, most of the offences criminalized as terrorist acts in the Act are covered by ordinary criminal law,’ they stated.
The judges stated the fact that the applicants had been charged for their involvement with PUDEMO, ‘is plainly a matter that affects or impacts on their right to freedom of association and opinion.
‘For whatever reason, their views on the policies, aims, ideals and objectives of PUDEMO have drawn them to it. The wearing of any apparel of paraphernalia associated with PUDEMO, may or may not, depending upon the particular circumstances of the case, be said to be a crime under the Act.
‘The bottom-line in these proceedings, however, is that their association, involvement with this organization or entity has resulted in them being charged under the Act. In a word, they have been told, PUDEMO is a specified [banned] entity, and your belonging to it or chanting its slogans and wearing its apparels is a crime in terms of the Act.
‘Clearly, their rights to freedom of association and opinion are adversely affected by this.’
The judges also stated that the law or regulations that declared PUDEMO a banned entity interfered with the constitutional right to freedom of association, but such rights were not absolute and they may be subject to certain restrictions or limitations.
The judges stated that the applicants who were members of the banned PUDEMO were, ‘declared, in effect, terrorists or at least persons engaged or involved in terrorist acts or criminals before they are given the opportunity to be heard on the issue. This cannot be right. It is against the rules of natural justice or procedural fairness or administrative justice that a person be condemned before he has been given the opportunity to be heard on the issue under consideration.’
A third High Court Justice Nkululeko Hlophe made a dissenting judgement.
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