'COMMANDER' WANTS OUT OF JAIL, TAKES PM TO COURT

MBABANE – Thabo Kunene, who identified himself as commander of the Swaziland Solidarity Forces, has applied for his immediate release and transfer to the South African High Commission.

Kunene asserts that his arrest was unlawful, violating the 1968 Extradition Treaty between Eswatini and South Africa.

Kunene claims he was abducted from South Africa and forcibly taken to Eswatini, bypassing any legal extradition process. He now demands a declaration that his detention is unconstitutional, the dismissal of the indictment against him and a halt to all prosecution proceedings.

He, alongside co-accused Thabo Nkomonye, has petitioned the prime minister and six other key figures, including the national commissioner of police, the Ministry of Home Affairs, the minister for Justice and Constitutional Affairs, the director of public prosecutions (DPP) and the South African High Commission.

In his affidavit filed in the High Court, Kunene alleges unlawful arrest and is pressing charges of abduction, kidnapping and attempted murder against those involved.

“I am laying criminal charges against all the accused persons for all the offences, which were committed in Rustenburg in the Republic of South Africa,” he states. He names Andile Nkomonye (Dr Mkhulu), Qiniso Nkomonye, senior police officers Clement Sihlongonyane and Thabo Hlophe as the perpetrators.  Kunene, who is currently incarcerated at Matsapha Maximum Prison, claims he was tortured, assaulted, abducted and kidnapped in Rustenburg, at Dr Mkhulu’s homestead, by these individuals.

 
Maintains

He maintains that he was in exile in South Africa during the Eswatini civil unrest. He insists his arrest was an illegal rendition, lacking any extradition order from a South African court.

“Both Clement Sihlongonyane, Thabo Hlophe and the police driver arrested me and Sibusiso Nkomonye in the Republic of South Africa without a warrant of arrest or an extradition order,” his affidavit reads. He is, therefore, laying charges of attempted murder, human trafficking, kidnapping and abduction. He argues that as these alleged offences occurred in South Africa, the South African prosecuting authority has jurisdiction.  

“I state that after we were unlawfully repatriated to Eswatini, we were taken to the Mbabane Police Station and later to Mafutseni Police Station, where we were handed over to other officers.

“As I was uneasy and bleeding profusely as a result of the repeated assault by the Eswatini police, the officers took me to The Luke Commission at Sidvokodvo for treatment,” he argued.

The veracity of these allegations is still to be tested in court. The respondents are yet to file their answering papers. Kunene and Nkomonye are represented by Professor Dlamini.

He brought it to the court’s attention that upon returning, together with his co-accused, they were charged with a string of politically-motivated offences, including murder and attempted murder.

He contends that the conduct of the police officers allegedly violates the sovereignty of the South African Government and contravenes established international agreements for the extradition of prisoners and suspects from South Africa to Eswatini. “Our abduction and unlawful repatriation from the Republic of South Africa to the Kingdom of Eswatini is in contravention of the Extradition Agreement between the Government of the Republic of South Africa and that of the Kingdom of Eswatini as well as other provisions of this agreement and the Extradition Act of 1968,” Kunene asserted.

He further argued that the alleged abduction/kidnapping and illegal repatriation also contravene the African Charter on Human Rights and the SADC Protocol on Extradition, claiming Eswatini failed to follow proper channels.

“The failure by the Kingdom of Eswatini to follow these International Conventions in which it is a signatory to in bringing us to the kingdom takes away the High Court of Eswatini’s jurisdiction to prosecute us for any offence as it is founded on an illegal act of the Eswatini police, who abducted and/or kidnapped us from the Republic of South Africa to Eswatini,” he argued.

He submitted that he has been advised that Eswatini’s courts are courts of justice and equity, and their jurisdiction cannot be founded on unlawful acts committed by citizens of the country in another country’s territorial sovereignty.
Kunene and Nkomonye face 43 charges under the Suppression of Terrorism Act of 2008, including six counts of murder, 17 of attempted murder, nine of malicious damage to property and two of arson.

The charges detail their alleged involvement in the murder of Correctional Services member Mike Mthethwa, the assassination of Chief Mahloma, the attack on Chief Justice Bheki Maphalala’s homestead, where his cattle were shot and killed, and the killing of law enforcement agents.

The prosecution’s summary of evidence alleges that during the 2021 civil unrest, the Swaziland Solidarity Forces, under Kunene’s command, caused widespread damage and loss of life.

They claim Kunene made instigating and threatening statements. Last year, the prosecution obtained court orders to seize evidence, including camouflage jackets, cellphones, explosives and cables, believed to have been used in the commission of the crimes.

Notably, a cellphone linked to Nkomonye was reportedly found at the scene of a railway line bombing at Sidvokodvo, and Kunene and Nkomonye pointed out explosives and cables at Sibusiso Nkomonye’s homestead.

Kunene is expected to appear in the High Court, where the prosecution intends to make him the first accused in the indictments of approximately 20 members of the Solidarity Forces currently in custody.  The court will have to consider Kunene’s claims of unlawful arrest and rendition against the serious charges he faces.

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