The story of prisoner Boycey Bheki Gama confirms that, although the constitution is hailed as eSwatini’s supreme law, it isn’t. The decree of the country’s absolute monarch, King Mswati III, trumps court decisions as well as the constitution.
The decision to keep Gama in jail despite a court order setting him free has once again raised the raging question of supremacy between the king, the constitution and the rule of law. Gama’s case echoes the questions that caused the 2002 judicial crisis when six justices resigned following a government decision not to recognise two court judgements challenging King Mswati III’s right to rule by decree.
Gama’s incarceration and subsequent fight for justice, started in 1993 when he was convicted of murdering businessman Malangeni Dlamini. Gama, who hails from ka-Langa in the Lubombo Region, was sentenced to death. This conviction and sentence was confirmed by the Court of Appeal.
Eight years later Gama’s death sentence was commuted to life in prison by the Prerogative of Mercy Committee which was established by the Prison Act, 1964.
However, there was a catch. The condition to his pardon and being saved from the hangman’s noose was that he would not be released from custody until he turned 75 years old. He is now 54 years old which means he has another 21 years to go. No remissions whatsoever.
In setting this condition the committee failed to take into consideration provisions of the Prison Act of 1964, which is clear that a life sentence cannot be longer than 20 years.
“A prisoner sentenced to imprisonment for life, shall for the purposes of this section be deemed to be a prisoner sentenced to imprisonment for 20 years.”
It adds; “For the purpose of giving effect to this section, a prisoner on admission shall be credited with the full amount of remission to which he would be entitled at the end of his sentence or sentences as if he would not lose such remission,” the law states.
Enter the constitution which came into effect in July 2005 and which has its own provisions on what constitutes a life sentence.
The constitution states that “A sentence of life imprisonment shall not be less than twenty five years”.
In 2015, Gama through his lawyer, Leo Gama, challenged his continued incarceration at the High Court on the strength of the Prison Act, which says that a sentence of life shall be 20 years.
The challenge was directed at the chairman of the Prerogative of Mercy Committee, the commissioner general of correctional services, the director of public prosecutions and the attorney general.
Gama argued in court that in terms of the Prison Act No. 40/1964 a life sentence translates to twenty years and in terms of the Constitution to not less than 25 years. He argued that he should be released as he has completed a life sentence in terms of the prison legislation as well as the country’s constitution. Gama pleaded with the court to review, set aside and/or correct the condition of the pardon recommended by the Prerogative of Mercy Committee that he may only be released at 75 years old.
A full bench of the High Court comprising Justices Qinisile Mabuza, Jacobus Annandale and Stanley Maphalala heard the case in 2016. In 2017 the court ruled that Gama should be released from prison.
“We are mindful of the fact that the Constitution was not promulgated when the applicant was sentenced to death and when he was granted a pardon which commuted the death sentence to life imprisonment.
“We consider the relevant section in the Constitution as a compelling guideline and benchmark. What was in existence at the time of his imprisonment was the relevant section in the Prison Act No. 40/1964.
“It is our considered opinion that the applicant has made out a good case for our intervention,” said the court in its judgment read by Justice Mabuza.
The court granted an order reviewing and setting aside and/or correcting the condition of the pardon recommended by the Prerogative of Mercy Committee that Gama would only be released on attainment of the age of 75 years.
Importantly, the court further ordered that Gama “be released from custody for the reason that he has served his sentence.”
When the order was delivered, Gama may have dreamt of a fresh start; a life outside prison walls after being in jail for 24 years. It was not to be.
The High Court ruling has no effect on Gama because the king decreed that he would walk free at the age of 75 years.
The king chairs the Prerogative of Mercy Committee, which is established by Section 78 of the constitution. It states in part that “The king may, in respect of a person sentenced to death or life imprisonment –
(a) Grant a pardon, either free or subject to lawful conditions;
(b) Grant to any person a respite, either indefinite or for specific period.”
In exercising the powers as chair of this committee, King Mswati III is advised by the committee members which include two people appointed by the king from his advisory council. Other members include the attorney general, minister for justice and a suitable qualified medical doctor recommended by the minister of health.
While correctional services chose not to implement the court order because of the decision by the Prerogative of Mercy Committee, spokesperson for the correctional services, Superintendent, Gugulethu Dlamini, confirmed that Gama is still behind bars doing ambassadorial work for the institution. Dlamini declined to elaborate why Gama is still locked up when he is armed with a court order setting him free.
However, an impeccable source speaking on condition of anonymity told Inhlase that after receiving the court order of October 5, 2017, the correctional services was prepared to let him go but then decided against it because of the decision of the Prerogative of Mercy Committee.
The directive to keep Gama in jail sent a clear message that the courts do not have the final say on questions of law in the country.
While Gama’s fight to be set free was set back in 2018 when his lawyer passed away, Attorney General, Sifiso Khumalo says the reason Gama was not released in line with the High Court decision had nothing to do with the decision of the Prerogative of Mercy Committee signed by King Mswati. He says Gama was not released because of an appeal filed by his office.
The AG had lodged the appeal the following day – October 6, 2017 – and did nothing further about it for four years. The AG was jostled back into action when in 2021 Gama applied for the appeal to be declared abandoned. The AG opposed the application and pleaded for condonation.
At the hearing of the appeal in June 2022 the AG conceded that the continued imprisonment of Gama was prejudicial to him (Gama) in that he had been further deprived of his freedom.
Despite the four years the AG was doing nothing, the court ostensible for the sake of justice ruled in favour of the AG.
Now, in his 30th year of incarceration, at Matsapha Correctional Services, Gama continues to play the role of poster boy for the correctional services. He is paraded in public as brand ambassador, extolling all the virtues of success of the rehabilitation programme in His Majesty’s Correctional Services.
He occasionally visits schools and youth gatherings to tell youngsters that crime does not pay.
He has been rehabilitated, is a born-again Christian but still in prison. The High Court order setting him free has, so far, meant nothing which sends a clear message about where ultimate power in eSwatini lies.