Times Of Swaziland: PARTIES WON’T BE HEARD  BEFORE BEING  PROSCRIBED

PARTIES WON’T BE HEARD  BEFORE BEING  PROSCRIBED
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Kwanele Dlamini on 14/08/2024 16:16:00


MBABANE – Political parties and activists will not be heard before being
declared a specified entity or being proscribed.
This, after the Supreme Court yesterday dismissed the matter in which a number
of individuals were challenging the constitutionality of certain sections of the
Suppression of Terrorism Act of 2008 and the Sedition and Subversive Activities
Act of 1938. These were former President of the People’s Democratic Movement
(PUDEMO), Mario Masuku, current PUDEMO President Mlungisi Makhanya, former
Secretary General of SWAYOCO Maxwell Dlamini and the late Human Rights Lawyer,
Thulani Maseko. Others were Mbhunu Mtshali and Derrick Dickson Nkambule.
When they approached the court, they had pending cases touching on either the
Sedition and Subversive Activities Act or the Suppression of Terrorism Act of
2008, which were consolidated.The Supreme Court has found that the impugned
sections were not inconsistent with sections 23, 24 and 25 of the Constitution
of the Kingdom of Eswatini. The court also found that there is no basis in law
for holding that any individual, or for that matter any entity, has a right to
be heard before the declaration of any entity as a specified entity in terms of
Section 28. According to the court, the reliance on Section 33 (right to be
heard) of the Constitution was misplaced. The appellant was the prime minister
and his grounds of appeal were successful and upheld.
The judgment that was issued by a full bench at the High Court, in favour of
Masuku and the others (respondents, who were applicants at the High Court) was
yesterday set aside and it was substituted with the order that ‘the
applications are hereby dismissed’.  Since this is a constitutional matter,
the court issued no order as to costs. The case of the respondents, who were
applicants at the High Court, was premised on two grounds. They argued that the
statutes or provisions, under which they had been charged violated their rights
under the Constitution, in particular with regards to Section 23 (protection of
freedom of conscience, thought or religion), Section 24 (protection of freedom
of expression) Section 25 (protection of freedom of assembly and association)
and Section 33 (right to administrative justice).
Oppressive
Their case was also premised on that the provisions, under which they were
charged, in their different cases, were vague, overboard and oppressive,
therefore, unconstitutional and ought to be so declared.  The case of the prime
minister was that the provisions were not vague or overly broad, or that there
were infringement of their constitutional rights. The late Maseko contended that
the wording of the Sedition and Subversive Act was very wide overboard to the
extent that it virtually vitiated and negated the fundamental right and freedom
of free speech and expression guaranteed under Section 24, read together with
sections 1 and 2 of the Constitution.
He said the broadness and wideness of the Act had the effect of making virtually
every utterance and expression fall under a seditious statement and subversive
activity. “The provisions are open to abuse as a mere expression of a view,
which appears to be offensive to the regime, is labelled seditious and
effectively freedom of is vitiated and rendered nugatory by the provisions of
the Act,” Maseko argued.He had also argued that it gave the director of public
prosecutions (DPP) wide and unlimited powers to arrest and charge a person under
the Act.
These are some of the averments made by the made respondents in the matter.
Among its findings, the court stated that a law or provision could not be both
void for legal defect yet be of force to determine whether it infringes a
fundamental constitutional right and freedom and/or constitutes a justifiable
limitation; once it is held to be void and invalid for vagueness. According to
the court, that would be the end of the matter. The Supreme Court went on to
rule in favour of the prime minister. The matter was heard by Judge Magriet Van
Der Walt, sitting with Chief Justice Bheki Maphalala, Judge Judith Currie,
Acting Judge Mabandla Manzini and Acting Judge Luke Simelane. The prime minister
was represented by Crown Counsel Vikinduku Manana and the attorney general.
Advocates Berger and Hathorn appeared for the respondents. This judgment comes
eight years after the matter began. The respondents had filed different
applications with similar prayers and the cases were consolidated into one at
the High Court.  The judgment that was being challenged was delivered by a full
bench comprising of Judge Mbutfo Mamba, who was flanked by Judge Jacobus
Annandale and Judge Nkululeko Hlophe on September 16, 2016. Judge Mamba and
Judge Annandale issued a majority judgment, while Judge Hlophe dissented.  The
majority judgment found certain provisions of the Suppression of Terrorism Act
and the Sedition and Subversive Activities Act were unconstitutional. The prime
minister filed an appeal and eight years later, it has been concluded.
Delays
Among the numerous delays in concluding the matter was that there were not
enough judges to form the bench as most of the available judges had dealt with
the matter in one way or the other.Former PUDEMO President, Masuku and Maxwell
Dlamini were arrested on May 1, 2014, after participating in a May Day gathering
in Manzini. Masuku spoke at the gathering and Dlamini participated in the
singing of songs, and both used the gathering to draw attention to various
challenges facing Swaziland. They were charged with two counts for allegedly
contravening the Suppression of Terrorism Act, and two charges for purportedly
contravening the Sedition and Subversive Activities Act, as a result of the
statements they had made.
Maseko allegedly made seditious statements about the Lozitha bridge bombing.
Among the parts that were declared to be invalid were Sections 3 (1), 4 (a), (e)
and 5 of the Sedition and Subversive Activities Act, 64 of 1938. Others were
Section 5(1) of the same Act and Paragraph 1 of Section 2, paragraph (2), (f),
(g), (i),(ii), (iii), (j), paragraph (b), Section 11 (1) (a), and 11 (2),
Sections 28 and 29 (4) of the Suppression of Terrorism Act 3 of 2008.