By Inhlase reporter
The International Commission of Jurists (ICJ) during the recent 69th session of the African Commission on Human and People’s Rights (ACHPR) has pointed out at least eight articles of the African Charter that Eswatini has violated during the political unrest.
The ICJ’ submissions do not constitute a comprehensive alternative report covering Eswatini’s compliance with the full scope of its obligations in respect of all Charter provisions. Rather, in the submission, the ICJ draws the Committee’s attention to certain rights and concerns, mainly those observed since May 2021 when the political unrest began.
The articles violated by Eswatini pertain to the rights to freedom of expression, association and assembly, including, in particular, internet access.
They also relate to access to justice and fair trial rights; and the rights of women to be protected from sexual and gender-based violence, including domestic violence and the rights to access to sexual and reproductive health.
The submissions are drawn from and complement the work of the ICJ in Eswatini over more than a decade, reflected in a number of ICJ publications and statements. They are also informed by consultations with local human rights defenders, civil society organizations and lawyers during the recent mission the ICJ undertook in Eswatini in November 2021.
The ICJ stated that they have been following with grave concern the unfolding human rights situation in Eswatini, following the allegedly unlawful and arbitrary killing by police of student, Thabani Nkomonye in May 2021.
“This incident ignited public protests which have been ongoing since May to the time of writing with protestors calling for, among other things: the unbanning of political parties; a meaningful, safe and transparent process of national dialogue leading to democratic change; and the release of all political prisoners, including two members of Parliament Mduduzi Bacede Mabuza and Mthandeni Dube,” stated the ICJ.
Similarly, the African Commission on Human and Peoples’ Rights (the Commission), through its Country Rapporteur for the eSwatini, Commissioner Alexia Amesbury in a statement said the commission followed the protests and confrontation between protesters and law enforcement personnel in the country with grave concern .
“The Commission learned from reports that the kingdom took a number of measures in the wake of the protests including the deployment of law enforcement institutions, the arrest of protestors and the suspension of the internet.
The Commission underscores that the law enforcement personnel deployed for policing of protests and riots should exercise maximum restraint and avoid acts that lead to arbitrary deprivation of life contrary to Article 4 of the African Charter,” said Amesbury.
ICJ noted with concern reports that more than 80 people have been killed by security forces since May, with allegations that many if not all of these killings are arbitrary and unlawful.
“These deaths have been primarily caused by security officials during the course of protests or due to suspicion of being involved in protests. The ongoing civil unrest in Eswatini has been the subject of at least two statements of this Commission in July 2021 and October 2021 respectively. It is noteworthy too that these events have transpired while Eswatini has continued to face significant social, political and economic challenges arising from the COVID-19 pandemic and Eswatini authorities’ responses to the COVID-19 pandemic,” reported the ICJ.
Eswatini has an obligation, under article 9 of the Charter to ensure that “every individual shall have the right to receive information” and that “every individual shall have the right to express and disseminate his opinions within the law,”
These rights apply every much online, in the digital context, as offline. The ACHPR’s Declaration on Principles of Freedom of Expression and Access to Information in Africa makes clear that: “The exercise of the rights to freedom of expression and access to information using the internet are central to the enjoyment of other rights and essential to bridging the digital divide”. Eswatini has failed to comply with its obligations in a number of respects.
As part of the attempt to control the spiralling protests, Eswatini authorities have on at least two occasions ordered both general and partial internet and telecommunications shutdowns. These directives were issued by State authorities including by the king’s daughter, Princess Sikhanyiso Dlamini, who is the Minister of Information and Communications Technology.
The first such order occurred in July 2021 when blanket internet access was restricted for a two-week period. The second such order resulted in a partial two-hour restriction of social media platforms on 15 October 2021.
These internet restrictions were imposed arbitrarily and constituted an illegitimate exercise of political authority.
Eswatini partly implements its article 9 obligations through the incorporation of the right to freedom of expression and to seek, receive and impart information in its Constitution.
Minister of Justice and Constitutional Affairs, Pholile Shakantu said although there has not been a comprehensive investigation to fully understand the root causes of the unrest, based on the available information it seems the cause of the unrest is a combination of socio–economic, political and criminal factors compounded by the effects of the pandemic which resulted in job losses, poverty and increased levels of frustration in general.
“The unrest was not a product of planned peaceful protest in terms of the Public Order Act, which allows parties to exercise their constitutional rights to freedom of assembly, freedom of speech in a lawful and orderly manner. When protest organizers follow the Public Order Act there are usually no incidences of violence and disorder.
The review is also taking place at a time when the Eswatini has recently experienced a number of challenges including protests which have resulted in an unprecedented civil unrest. Eswatini experienced civil unrest around June 2021. This unrest resulted in the unfortunate loss of lives, personal injuries and damage to property and infrastructure,” she said.
She also acknowledged that the civil unrest has led to the unfortunate loss of lives, injuries and damage to property and infrastructure.
She added that the Commission on Human Rights and Public Administration conducted an independent preliminary assessment on the events surrounding the civil unrest. The Commission issued its preliminary findings and recommendations on October 29, 2021. She said government is still considering the assessment report.
“Further, the government through the Deputy’s Prime Minister’s office has commissioned an assessment to ascertain the effects and impact of the unrest on vulnerable groups. This assessment will culminate into a plan of action to address the findings and recommendations.
The Government appreciates the importance of finding sustainable solutions after fully understanding the root cause of the unrest in order to pave a way forward within the confines of the law,” she said.
She revealed that to this end, King Mswati III announced a national dialogue (Sibaya) that is set to commence early next year.
“Eswatini believes that dialogue is the hallmark of national peace and reconciliation, and the government remains optimistic that all parties shall work together in finding a sustainable solution to maintain peace and stability which is the unique attribute of Eswatini,” she said.
She also pointed out that the king established a Reconstruction Fund to support all those whose property was affected during the civil unrest.
The minister said this is a step towards resuscitating all the businesses, structures and infrastructure that were damaged during the civil unrest. The Fund was capitalized by the Government, Business Community, Corporate Institution and Development Partners.
While freedom of expression and information is not absolute, any restrictions must comply with the principles of legality, non-discrimination, legitimate purpose, proportionality and necessity. But as the United Nations Human Rights Council, has observed, it is inherent to internet shutdowns that they unnecessarily and disproportionately restrict the rights to privacy, access to information and freedom of expression. Such measures are often undertaken for political or other improper reasons, rather than for a legitimate purpose under human rights law.
A recent OHCHR report provides an analysis of related human rights protection gaps, ways to bridge those gaps and barriers to advancing effective, human-rights based regulation of artificial intelligence which would be useful to the Commission in the Eswatini context.
Though internet shutdowns always present a threat, the equal and full enjoyment of human rights and the rule of law is deepened in the context of a public health emergency such as the one brought on by COVID-19, given the increased importance of ensuring widespread access to public health information and other information necessary to guard against COVID-19 transmission, sickness and death.
In the specific context of COVID-19, the UN Special Rapporteur on the Right to Freedom of Expression highlighted this need from the outset of the pandemic.
Article 11 provides that “Every individual shall have the right to assemble freely with others”. The largely, peaceful pro-democracy protests have been ongoing in Eswatini since June 2021 and show no signs of abating given the widespread dissatisfaction with the current political dispensation.