By Vuyisile Hlatshwayo
The eSwatini government has declared editor of the Swaziland News, Zweli Martin Dlamini a terrorist under the country’s anti-terrorism legislation. It has banned him and his publication with no regard for the fact that relevant sections of this law were found to be unconstitutional by the High Court as they undermine freedom of speech and association. Government disagrees and has appealed the ruling but the outcome of this appeal process is still pending.
The 2016 ruling came about when the People’s United Democratic Movement (Pudemo) and lawyer, Thulani Maseko, challenged the constitutionality of the Suppression of Terrorism Act 2008.
The 2016 ruling was also a landmark one because it allowed pro-democracy groups to operate freely in Africa’s last absolute monarchy. The pro-democracy movement gained momentum and led to an uprising in 2021 which saw over 70 people killed in clashes with police as government cracked down on calls for democratic reforms. In June this year, which marked a year since the violent clashes between pro-democracy activists and state authorities, eSwatini Attorney General, Sifiso Khumalo described Dlamini, who is vocal in his support for the pro-democracy movement in the country, as a “security threat”.
Prime Minister Cleopas Sipho Dlamini followed this statement up by invoking the Suppression of Terrorism Act 2008 and banning the South Africa-based editor and his publication.
“In exercise of the powers conferred on me by Section 28 (2) of the Suppression of Terrorism Act 2008, I, Prime Minister of the Kingdom of Eswatini, declare Zweli Martin Dlamini and Swaziland News (Pty Ltd) to be specified entities with immediate effect in that these entities knowingly facilitate the commission of terrorist acts,” he stated in a notice issued on June 30.
Pudemo secretary general, Wandile Dludlu, finds government’s decision to ban Dlamini “very irrational and an unjust act” given the 2016 ruling and the appeal that still needs to be concluded. He argues that the politicians have usurped the role of the judiciary in deciding over such a high-level rights matter.
Dlamini has described the ban as a “sad day for media freedom”. While he has vowed not to back down, there are now 33 media-unfriendly pieces of legislation in eSwatini, the High Court declared key parts of the anti-terrorism law, under which Dlamini is banned, null and void in 2016.
In that ruling, High Court Justice Mbutfo Mamba found that “the following provisions of the Suppression of Terrorism Act 3 of 2008; namely …sections 28 and 29 (4), are inconsistent with the constitutional provisions relating to freedom of speech and association as provided under sections 24 and 25 of the Constitution and are to the extent of such inconsistency unconstitutional and invalid”.
The judge ruled that the law is against the rules of natural justice or procedural fairness or administrative justice that a person be condemned before he has been given the opportunity to be heard on the issue under consideration.
“This is the case whenever the decision taken or about to be taken adversely affects that person in his personal or property rights. This precept of natural justice has been specifically constitutionally guaranteed in section 33 of the Constitution and is a fundamental right or a Chapter III right,” reads the judgment.
Asked why government has disregarded the ruling declaring the law unconstitutional, the attorney general counters that if a matter is subject to appeal the status quo remains. He hastens to add that after the September 11 incident in the US this process has been embraced uncritically by the international community despite that it does not demand “due process” and the application of human rights standards.
The anti-terrorism legislation is not a media-specific statute but certain sections of it infringe on media freedom. Section 21 states that a person who supports terrorist acts commits an offence and shall, on conviction, be liable to the same punishment as is prescribed for the perpetrator. It infringes on the rights of the journalists who interact with and interview members of the proscribed organisations in the line of duty.
Against this background, the government spokesperson, Rev. Alpheous Nxumalo has warned emaSwati against interacting with proscribed entities after the government’s ban of the Swaziland News and its editor. He told them to exercise discretion, collective intelligence and responsibility in choosing who to follow and interact with in the borderless and unrestricted world of social media. He has further told emaSwati to avoid to be guilty of either by association or by abetting activities which seeks to undermine peace and security in the kingdom.
“It is not in the best interest of the people themselves to be seen (rightly or wrongly), to be in association or in support of entities and individuals who have openly incited and encouraged violence and murderous attacks on members of the public, the country’s security services’ members and private and public infrastructure. Some of these people have chosen the path of advertorial and atrocious politics in the place of the politics of engagement,” reads his statement.
This contravenes the constitutional right of emaSwati which expressly recognises freedom of expression and media freedom. Section 24 (2) states that a person shall not, except with free consent of that person, be hindered in the enjoyment of the freedom of expression and other media including freedom to receive ideas and information without interference.
University of Eswatini senior journalism lecturer, Dr. Maxwell Mthembu expresses concern over the definition of ‘terrorism’ under the Suppression of Terrorism Act, 2008 in eSwatini where it not only concerns itself with terrorism per se but seeks to suppress dissenting views on issues that should be deliberated upon in the public sphere. He notes that the government’s decision to ban Swaziland News and its editor has serious implications for media freedom in the country.
“Government has not created an enabling environment to dialogue in the national broadcast media over the years. It continues to use pieces of legislation such as the Proscribed Publications Act, the Sedition and Subversive Activities Act and the Suppression of Terrorism Act to stifle media freedom and freedom of expression in the country,” he says.
He criticises such pieces of legislation for breeding self-censorship in the media. The media censor themselves on issues where there should be transparency and accountability by those in the echelons of power. They instil fear in the media not to report without fear or favour. He decries that the credibility and trust of the mainstream media by consumers will further be eroded in the process as the media continue to gloss over pertinent issues that warrant investigation such as the business acquisitions, awarding of tenders and amassing of wealth by a select few while the masses languish in abject poverty.
Emmanuel Ndlangamandla, the Council Assembly of Non-Governmental Organisations director, condemns acts of terrorism in the country. He shares same sentiments that terrorism has been over-simplified in the country. He uses the example of the children charged with terrorism for the alleged involvement in the torching of schools during the last year’s upheaval.
“It has not come as a shock that the government has used a piece of legislation declared unconstitutional to ban a journalist and a newspaper. We expect more of such. This action violates freedom of expression and is an assault to media freedom. It further exposes that government continues to violate the human rights of journalists specifically. Only a meaningful dialogue will save the country from self-destruction,” he said.
Swaziland Nation Association of Teachers president, Sikelela Dlamini echoes his words saying the teachers’ union views the proscription of Swaziland News and Zweli Martin Dlamini as strangulation of the press. He adds that it takes away media freedom and robs the nation of varied news outlets.
While the proscription of Dlamini and the Swaziland News has a chilling effect on the media and ordinary citizens, Inhlase’s efforts to get comments from representatives of the Editors’ Forum of Eswatini (EFE) and Eswatini National Association of Journalists (ENAJ) were unsuccessful.