You are an undemocratic government that is keen to silence opposition. But you have a problem: As a public relations exercise you have adopted a democratic Constitution that enshrines the right of political dissent. What do you do?
The Kingdom of eSwatini’s response to this dilemma is to arrest opposition activists on vague and flimsy charges — sedition and terrorism are the favourite options — and leave them languishing in jail or out on bail without charging them, sometimes for years.
In some cases, charges are brought or kept alive even though the relevant legislation has been struck down as unconstitutional by the high court.
Goodwill Sibiya, a political activist from Mhlosheni in the south of eSwatini, is a case in point. Sibiya undertook a near-impossible mission — challenging the authority of the monarch.
In May last year, he filed papers in the high court challenging King Mswati III and the royal household over the ownership of Tibiyo Taka Ngwane, the royal piggy bank founded by Mswati’s father, King Sobhuza II, at independence in 1968. It is funded through contributions from ordinary emaSwati across the country.
To sidestep the constitutional immunity accorded Mswati against legal proceedings, Sibiya cited the prime minister, Ambrose Dlamini, and the government in the matter.
Sibiya had no lawyer to help him prepare papers, so he did it himself. He then proceeded to the commissioner of oaths at the Nhlangano police station to have the papers sworn to, and boarded a bus to Mbabane to depose them with the registrar of the high court.
In his application, he implored the court, among other things, to order the arrest of King Mswati III, mainly on grounds of the alleged theft of Tibiyo Taka Ngwane.
Sibiya had kicked a hornet’s nest. The police were detailed to track him down, which they did as he walked along the narrow path back to his homestead.
Tibiyo is a royal investment company which, among other holdings, has a 53% stake in the Royal Eswatini Sugar Corporation and a 40% stake at Ubombo Sugar in Big Bend. In 2012, it had assets of 1.39-billion emalangeni.
Its objective, according to its website, is to support social and economic development for the benefit of the people of Eswatini.
It funds education, including through scholarships, but its main beneficiary is the royal family itself. It contributes to cultural activities that buttress the authority of the royal household. And the royals draw on the fund for their own, unstated, purposes.
It is no accident that its head office stands at the doorstep of the Lozitha palace.
Sibiya sought to restore ownership of Tibiyo to whom he argues are its rightful owners — the people — from whom he contends it was stolen.
If the matter had been allowed to proceed, the court would also have been called on to make a ruling on the constitutionality of the king’s appointment of the prime minister.
But it was not to be, and Sibiya has paid a heavy price for exercising his democratic right to approach the courts. Arrested in May 2019, he was charged with terrorism for declaring that he was a member of the banned People’s United Democratic Movement (Pudemo), the Communist Party of Swaziland, and a founding member of the virtually unknown Economic Freedom Guerillas.
Sibiya was charged with sedition and subversion, which carry a maximum jail sentence of 20 years, for deposing an affidavit containing alleged falsehoods intended to foment hatred, contempt or disaffection towards the king.
The prosecution also tried to have Sibiya declared insane, applying for an order to have him examined for mental incapacity. The application collapsed.
Writing for the Southern Africa Litigation Centre on his arrest, litigation director Anneke Meerkotter said that his case “throws a shadow over the government’s own claims of being a democratic state”.
The state case against Sibiya had no prospect of succeeding — but he spent a year in jail without trial. Unsurprisingly, the charges were withdrawn in June this year.
The Sedition and Subversive Activities Act had been quashed by a full bench of the high court three years earlier, in September 2016, in the case of Mario Masuku, Thulani Maseko, Maxwell Dlamini and Mlungisi Makhanya .
Holding that the law infringed the fundamental rights to freedom of expression and association enshrined in the 2005 Constitution, the court declared it — and sections of the Suppression of Terrorism Act — unconstitutional.
But in a striking illustration of how these laws are used to intimidate, the state continues to charge people under them, even though they have been annulled by the courts. Four years after the courts quashed the charges against Masuku, Eswatini’s most persecuted pro-democracy campaigner, they still stand and he continues to comply with his bail conditions.
In 2008, Masuku was arrested and charged with sedition and terrorism after a speech he made at the funeral of another activist, Musa Dlamini, in which he allegedly gave support to acts of terrorism. He spent about a year in jail and was discharged by the court minutes after the trial started, on the grounds that there was no case to answer.
In 2014, Masuku was again arrested, together with another activist, Maxwell Dlamini, for sedition, and they spent more than a year in jail. They had made speeches at May Day celebrations, in which Masuku publicly conceded he was a Pudemo member, and called the Swaziland’s tinkhundla governance system undemocratic. Both then shouted “Viva Pudemo!”
Masuku is now back in court, demanding an order for his prosecution to be stayed and that the charges declared unconstitutional in 2016 be withdrawn.
The point was made forcefully by another victim of the 2016 case, human rights lawyer Thulani Maseko, whose sedition charge was also quashed by the high court. Among other things, the state took exception to his “seditious” criticisms of the king at May Day celebrations in 2014.
Maseko argued in his column in The Nation magazine in July 2020 that the 1973 King’s Proclamation to the Nation — made 32 years before the Constitution became law — the sedition and subversion legislation and the Suppression of Terrorism Act “continue to be used in such a manner, not only to suppress, but to abuse and intimidate the voices of democracy”.
“There are many victims of such abuse within the ranks of those legitimately campaigning for democracy,” he wrote.
In 2014 Maseko and The Nation editor, Bheki Makhubu, were arrested for criticising a judgment of the disgraced former chief justice and one-time close ally of Mswati, Michael Ramodibedi. Amid furious international condemnation, they spent a year in jail for contempt of court.
Another legal strategy that appears designed to intimidate is the arrest of activists and their subsequent release on bail in cases that never make it to court.
Activist Mphandlana Shongwe and 15 others were arrested in 2006 and charged with sedition for allegedly carrying out a series of petrol bomb attacks on homes of political figures and police.
Almost 15 years later, the case is still pending and the accused must still comply with their bail conditions, which include reporting to the police once a week.
In the same year, 35-year-old Sipho Jele was arrested at a May Day rally for wearing a T-shirt with a Pudemo emblem. He allegedly hanged himself shortly afterwards in prison, but there are widespread suspicions about the cause of death.
Ncamiso Ngcamphalala, a member of EFF Swaziland, an unknown group, is languishing in jail on a sedition charge after criticising the king in an online publication Swati Newsweek. In the article he was quoted as saying: “We want government to change people’s lives; the Swazi monarchy must know its place. We respect the king, but respect is earned, and when pushed into a corner we will be forced to retaliate. We unapologetically stand for multiparty democracy.”
Arrested in May this year, Ngcamphalala alleged in his bail application that he almost died when he was tortured for three hours at Mafutseni police station outside Manzini.
Critics of the tinkhundla system of government can also find themselves facing nonsecurity charges that are never resolved in court.
One such instance is that of former Lobamba MP Marwick Khumalo, a strong critic of the government, in particular former prime minister Barnabas Sibusiso Dlamini.
Khumalo was arrested in 2013 on charges of defrauding the Commonwealth Parliamentary Association. Almost seven years later, he is yet to have his day in court.
This article was produced by the Inhlase Centre for Investigative Journalism in eSwatini, in association with IJ Hub.