eSwatini's 20 years of constitutionalism characterised by a crackdown on freedom of expression

Mail & Guardian

08-05-2025

Paramedics tend to a person injured by police during protests in Mbabane in 2021 as security forces cracked down on pro-democracy protests in Africa's last absolute monarchy. Photo: AFP
Although the African Union has declared 2025 the year of reparations, justice for Africans and people of African descent through reparations, many remain shackled by colonial legal frameworks in the hands of post-colonial and post-independence Africa.
The 2024 decision by the eSwatini
The last absolute monarchy in Africa will mark the 20th anniversary of its Constitution in July 2025. Since the Constitution was promulgated
in July 2005, it is concerning that the highest court would revitalise a colonial law that stifles free expression and erodes trust in democratic institutions.
Freedom of expression is the cornerstone of all human rights because advocacy and governmental accountability depend on its protection. Since the emergence of human rights after World War II, freedom of expression has retained its status as one of the fundamental rights enshrined in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the Africa Charter. The African Commission on Human and Peoples' Rights
(
ACHPR) adopted the Declaration of Principles on Freedom of Expression and Access to Information in conformity with Article 9 of the African Charter, highlighting the significance of this right.
Sedition laws,
Unfortunately, the eSwatini supreme court's ruling in
Prime Minister of Eswatini and Another v Thulani Maseko and Six Others
only worsens this alarming pattern.
In reinstituting the crime of sedition, the court contributed to an environment where protestors, human rights defenders, political opposition, and activists' freedom of expression may be stifled through arbitrary arrests. These groups will be compelled to engage in self-censorship regarding any perceived criticism of the government. Even in a monarchy like eSwatini, sedition laws are untenable as they contradict the right to self-determination, violating Article 1(2) of the United Nations Charter.
I disagree with the court's decision for three primary reasons:
(1) The Sedition and Subversion Act is excessively vague and lacks specificity, as sedition encompasses multiple insult offences under one umbrella;
(2) Terms such as 'disaffection' are subjective and emotive, which encourages prosecutorial abuse; and
(3) Sedition establishes a multi-tiered free speech structure that affords greater protections to public officials, contravening Article 19 of the ICCPR.
The respondents in the case were charged under the Sedition and Subversion Act (SSA) for various forms of criticism of the government, including making statements at a funeral, wearing T-shirts, and displaying a banner. Although none of the alleged activities resulted in violence or disorder, the court based its support for the Act on the necessity for violence or disorder to follow the 'seditious' utterances.
The respondents presented two arguments against the Act: (1) the law violates freedom of expression and opinion as outlined in the eSwatini Constitution, and (2) the crime of sedition is excessively vague, overbroad and oppressive, warranting a declaration of unconstitutionality.
These two legal arguments represent the typical reasons courts worldwide have invalidated sedition laws, so it is perplexing that the eSwatini court swiftly dismissed these arguments and instead drew upon other countries' jurisprudence to justify upholding the SSA.
In its judgment, the court recognised that eSwatini's conception of sedition was derived from English common law and emphasised the necessity of the SSA, because eSwatini's terrorism statute did not address utterances that could engender disaffection towards the government. The court noted that England, the origin of sedition, had repealed its sedition law because its parliament incorporated similar language into its anti-terrorism legislation. Furthermore, the court reinforced its reintroduction of the SSA by highlighting eSwatini's status as a monarchy.
But these justifications fail to address the arguments presented by the respondents, which, upon analysis, clearly indicate that the court's revival of the SSA contravenes international law and infringes upon the rights to free expression, opinion, and assembly as guaranteed by its Constitution.
One of the respondents' arguments that any utterance could fall within the SSA is accurate, as speech that creates 'disaffection' is a subjective assessment that allows broad latitude for police officers' discretion to arrest any expression they perceive as critical.
But, what constitutes criticism for one person may not be the same for another, leaving the SSA without justiciable standards that can be uniformly applied in each case. The respondent correctly asserted that the SSA undermines the core principle and fundamental right to free expression. Free expression serves multiple purposes, including fostering a marketplace of ideas, where expression relating to government, including criticism, holds the highest value.
Another compelling argument made by respondents was that limiting the expression of views contrary to the government's ideals and aspirations leads to a 'docile citizenry' and hinders democratic values. This is true because democracies thrive on dissenting opinions. The respondents asserted that courts cannot objectively adjudicate words such as discontent, ill-will, disaffection and hostility because they are emotionally charged terms. Colonial-era sedition laws employing these terms create muddled jurisprudence that fails to clarify the types of speech that violate the law for citizens.
The eSwatini government's crackdown on dissent through sedition laws grants unrestricted
power for authorities to trample upon the rights they are meant to protect and advance for their citizens. Although the respondents did not explicitly state it, this argument underscores the fundamental importance of free expression for self-determination.
The eSwatini supreme court found that the SSA was not void for vagueness. General Comment No 34 provides guidance on ICCPR's article 19(3), which allows for limitations on free expression. Limitations are only permissible as follows: '[w]hen a state party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.'
The reinterpretation of the SSA in the judgment fails to elaborate on a direct and immediate connection between the content of the speech and the threat of violence or public disorder.
This failure exposes a fatal flaw of sedition laws: they lack a specific nature of the threat, encompassing crimes like incitement, hate speech, true threats, criminal defamation and conspiracy to commit insurrection. Not only does this overbreadth of multiple expressions violate one law and fail the specificity requirement, but the vague emotional language of the crime creates a subjective problem of determining the threshold at which expression evolves from allowable dissent to advocating for violence.
The courts must reconcile this problem by removing the words 'disaffection,' 'hatred' and 'contempt' and providing an imminence element resembling a 'clear and present danger' standard.
Since their inception in England and proliferation through colonialism, sedition laws have established a multi-class structure for free expression rights. This is because the crime of seditious libel was created to suppress criticism of the British monarchy and public officials during times of social unrest.
The recent rise of authoritarianism has ushered in a rollback of freedom of expression not witnessed in recent memory. According to the OHCHR, the general comments of the Human Rights Committee carry interpretive weight because the ICCPR is seen as a foundational document, akin to a Constitution, and the treaty body's interpretations fill the gaps left in the Covenant.
Free expression is the paramount political freedom, meaning eSwatini must implement narrowly tailored restrictions. The Sedition and Subversion Act directly opposes this principle. The court should have clarified the definitional ambiguities, such as 'disaffection', intentionally included in sedition statutes like the SSA to suppress dissent and eliminate opposing opinions.
The court's reinvigoration of the SSA violates the eSwatini Constitution and the ICCPR. Moreover, General Comment No 34 clearly states that laws creating special speech protections for monarchies, administrations, and government officials are impermissible, as those bodies and individuals expose themselves to criticism as custodians of government institutions.
As eSwatini gears up for its 20th anniversary of constitutionalism, it must not justify the Sedition and Subversion Act based on its identity as a monarchy, as the right to self-determination under the UN Charter depends on the people's ability to speak critically or positively about their government without fear of reprisal.
Melusi Simelane is the civic rights cluster lead at the
.