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Thursday, December 8, 2022

Government’s appeal of court judgment questioned

By Melusi Simelane and Rodrigo Canalli

The Supreme Court of eSwatini issued a judgment that constitutes a threat to the rule of law and the protection of human rights in eSwatini. In its decision, the Supreme Court allowed the appeal to proceed in the matter of the Prime Minister of eSwatini and Others versus Maseko and Others.

The Southern Africa Litigation Centre (SALC), supporting three respondents in the matter, had emphasised that allowing the appeal to proceed and not dismissing it, based on the grounds of civil procedure, constituted a threat to the rule of law and the protection of human rights.

The Constitution of eSwatini clearly states the importance of a fair hearing in section 21, which means a hearing within the provided timelines per the court rules and procedures. Anneke Meerkotter, the SALC executive director, commented: “Allowing the appeal to proceed constitutes a disregard for the governing rules of procedure.

“The rule of law means that no one, not even the government or state entity, is above the law, where the laws protect fundamental rights. “The judgment presents a bad precedent, with crucial implications for protecting fundamental human rights.

“(The) SALC is alarmed and appalled by this disregard for the rule of law and the rules of procedure to accommodate and facilitate what appears to be a political agenda.

“Such jurisprudence has the potential to weaken the entire legal system and raises serious questions about the independence of the judiciary.” In 2016, the High Court, sitting as a full Bench, declared Sections 3(1), 4(a), 4 and 5 of the Sedition and Subversive Activities Act of 1938 to be inconsistent with the Constitution, in particular, sections 23, 24 and 25. The court further held that paragraph 1 of section 2(f) (g) (i) (ii) (iii), (j), paragraph (b), Section 11(1) (a) (b) and 11 (2), Section 28 and 29 (4) of the Suppression of Terrorism Act of 2008 were unconstitutional as it did not align with the provisions of freedom of speech and association in section 24 and 25 of the Constitution.

The decision by the high court was appealed by the State, resulting in various delays, which formed the basis of the judgment by the Supreme Court of eSwatini on Thursday.

On the morning of June 10 this year, the Supreme Court of eSwatini held the hearing of interlocutory questions related to the appeal filed by the State after a September 16, 2016, High Court ruling declared unconstitutional certain provisions of the Sedition and Subversive Activities Act (1938) and the Suppression of Terrorism Act (2008).

Section 24 of eSwatini’s 2005 Constitution provides that “a person has a right of freedom of expression and opinion”, which includes “freedom to hold opinions without interference” and “freedom to communicate ideas and information without interference”.

Despite that, the Sedition and Terrorism Acts have been continually used by eSwatini’s government to stifle dissent and silence criticism. The hearing session was closely followed by the Southern Africa Litigation Centre, not to mention dozens of Pudemo (People’s United Democratic Movement) members, who filled the court room singing songs before the session started.

Most of the respondents are members of the political party Pudemo, deemed a terrorist organisation by the eSwatini government since 2008. Speaking on behalf of the eSwatini government, advocate Gregory Harpur argued for the condonation of the late filing of the record of proceedings by the attorney-general. He also made submissions in defence of the atypical amendment of the notice of appeal.

Representing three of the respondents, advocate Jonathan Berger urged the court to “look into the delinquent behaviour of the AG’s Office” and pointed out that “we are in 2022 and there has not been finality in the matter”.

After hearing the parties’ submissions, the Supreme Court reserved its judgment. Despite not addressing the merits of the appeal, the issues presented to the court highlights the utmost importance of the due process of law to the effective protection of human rights by courts in eSwatini and across the continent.

The right to a fair and speedy public hearing within a reasonable time by an independent and impartial court is enshrined in section 21 of the Constitution of eSwatini.

Notwithstanding, six years later some of the respondents died without receiving a final answer from the Judiciary and the remaining ones still wait for justice. On the contrary, the due administration of justice repels arbitrary and abusive acts and guarantees respect for the due process of law. Judicial actors need to understand that the effective delivery of justice is inseparable from adherence to the rule of law.

The abuse of judicial procedure, whether by state or private actors, walks hand-in-hand with tolerance for rights violations. Under the rule of law, diligent and strict observance of procedural rules is never discretionary, but a safeguard against capricious and arbitrary measures and a guarantee that the laws will be properly applied in the way they are supposed to.

In this context, it is important to emphasise that the government’s right to appeal an unfavourable decision does not extend beyond their obligation to exert this right in conformity with the procedural rules by which it is defined and limited.

* Simelane is the civic rights cluster programme manager at the Southern African Litigation Centre and Canalli is an intern at the centre.

** The article was first published in:www.southernafricalitigationcentre.org.

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