OPINION: Swazi court throws out terror act but victory may be short-lived

PUBLISHED: Thu, 22 Sep 2016 13:15:29 GMT

Swazi authorities were on Monday, September 19, examining the previous week’s High Court ruling that effectively declared most of the Suppression of Terrorism Act and the Sedition and Subversive Activities Act unconstitutional – paving the way for pro-democracy groups to operate legally.

If allowed to stand, the High Court ruling would fundamentally change the country’s political landscape, but there is a view that the 1973 powers vested in King Mswati III would allow for the court ruling to be set aside by royal proclamation or simply just ignored.

Swaziland has no clarity on the issue of legal supremacy, with several changes to the formal constitution competing with a 1973 Royal Decree that appears to remain the country’s supreme law. Reuters reported last Friday, September 16, that a full bench of the court ruled the acts null and void, opening the door to the possibility that outlawed pro-democracy groups could operate openly in the country.

“The respondents have been found woefully wanting,” said Judge Mbutfo Mamba after hearing the government’s arguments in favour of a law that restricts freedoms such as assembly and speech.

The case arose after Thulani Maseko, a lawyer who spent 16 months in jail for criticising government, brought the application to court along with Mario Masuku, the president of the People’s United Democratic Movement (PUDEMO). Government used the Suppression of Terrorism Act to ban PUDEMO, and Mr Masuku faces treason charges related to a speech at a May Day rally in 2014.

Given the uncertainties and, indeed, the vulgarities of the country’s law and political practice, it is likely the ruling will be challenged and set aside legally or simply ignored by Swazi officials and security forces.

The 2006 constitution made provision for an independent judiciary and for human rights, including freedom of assembly and association, with little to suggest these rights have been upheld. The king appoints the judges and can fire them, and in any event it appears that the supreme law in Swaziland that effectively allows the monarch to rule by decree remains in force.

The officially titled King’s Proclamation to the Nation No. 12 of 1973 remains in force as it has never been repealed by a counter-decree, and that implies that the 1973 decree remains the supreme law and the king may use that decree to set aside the court ruling.

The 2005/2006 constitution – a document gazetted in July 2005, but that only came into force in February 2006 – vests most powers in the king and allows him to appoint the cabinet, judges and the Civil Service Commission. It allows the monarch to veto any law and in effect elevates the king above the law.

The 1973 decree places all executive, judicial and legislative functions in the king and allows him to make, repeal, or amend any law. That, by any definition, is rule by decree. 

The ruling by the High Court in Mbabane signals a potentially major shift in Swaziland’s politics that would allow organisations with political agendas, independent labour unions and civic organisations to operate freely and legally and to mobilise support for democratic change. The champagne, however, should be kept on ice for the moment as it is by no means certain that much is actually going to change.

There are already laws and provisions in the 2006 constitution, for example, that allow for human rights, freedom of association and freedom of movement that are ignored by the security forces and not protected by the courts; so what is likely to change now?

In addition, there are compelling arguments to suggest the king has an ace up his sleeve – the 1973 decree that effectively allows him to do as he pleases and subverts all other laws, including the constitution, to his whim.

It remains to be seen what the king and his advisors do now: allow the freedoms to grow with some element of control or just slam the door shut by any means possible. The history of Swaziland suggests the scales are tilted heavily in favour of the latter.

Gary van Staden is Senior Political Analyst at NKC African Economics.

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