THE ONGOING TERRORISM APPEAL CASE REMINDS US OF THE ERRORS MADE IN THE INITIAL FARCICAL RULING
When The Nation Editor, Bheki Makhubu, once invited me to pen my views about the High Court judgment on the constitutional challenge of the Suppression of Terrorism Act and other attendant repressive laws, I knew deep down he felt vindicated following our “twar” (a suburban lingo for twitter ‘war’) about the kingdom’s Constitution and my assertion that it is useless because it fails to resolve the very foundation and need of its promulgation: set a new political path for Swaziland.
For the uninitiated, Makhubu and I hold strong views about our Constitution. On the red corner is me, rejecting the document as farcical, while on the blue seats Makhubu believing this supreme law is a work in progress - taking baby steps towards achieving the bigger dream of a plural democracy that we all wish for.
I did say then that it was an honour to be invited to write for his esteemed publication even though at the time I felt it was some kind of a ‘poisoned gift’, as Jose Mourinho once described how my beloved Manchester United would be playing three big teams (Liverpool, Fenerbahçe and Chelsea) within a space of seven days. It was indeed a poisoned gift because I criticized judges I held in high esteem.
In fact, had it not been for the towering influence of such people as Judge Qinisile Mabuza, Judge Mumsy Dlamini and Judge Lorraine Hlophe in my earlier years as a court reporter for both the Swazi Observer and later the Times of Swaziland newspapers, I would not have enrolled for a Diploma in Law at the University of Swaziland for a better grasp of the law. Sadly, I was to later dump it for other interests as I furthered my tertiary education. I, therefore, write with trepidation in an area I admit I have limited knowledge of.
My cameo knowledge notwithstanding, I must say the majority judgment authored by Judge Mamba and Annandale that was a cause of celebration and that seemed to open up political space in the country, albeit briefly, was not only confusing and bad in Constitutional Law but also made so many fundamental errors it comes as no surprise that later we learned that both the so called ‘victors’ and the “losers” were appealing it—for different reasons of course. This cross appeal, so to speak, was a telling sign of the judgment’s legal nugatory.
I warned those who were quick to declare the terrorism act gone that it was premature celebrations for judgments going on appeal. Memories of what happened to the famous Nelly Ndlovu vs the late Knox Nxumalo case come to mind. It is common knowledge that all applicants who challenged the STA face charges related to the controversial law. It goes, therefore, that the very costly constitutional challenge was to escape prosecution. However, if the judgment is anything to go by, the entire court process was an exercise in futility.
This was because the laws had not been declared unconstitutional from the date of Swaziland entering a constitutional era, effectively meaning the applicants can still go on trial. In case you just descended from space let me explain some fundamentals. Generally, constitutional litigation is, broadly speaking, of two types. One is a bill of rights litigation and the other is a none bill of rights litigation. Bill of Rights litigation is where the challenge is founded on a right or rights in Chapter III of the Constitution of Swaziland (sections 14-39).
None bill of Rights litigation concerns challenges based on provisions outside of Chapter III. The cases under review were bill of rights litigation. A constitutional challenge, therefore, may be made against a law, conduct or policy. In this case, the challenge was to laws. So henceforth I will refer to laws. The finding that the Court has to make is whether the attacked regulations limit the right or rights. If they do not, then the challenged laws are constitutional and the application must be dismissed. If the attacked laws limit the right or rights, the Court moves to do a limitations inquiry.
I am unaware of a case where our courts have done a limitations enquiry. The test for limitations in our country is the rights and freedoms of others and the public interest. Section 14(3) of the Constitution is instructive in this regard. The Limitation is, in the final analysis, about justification. The court makes an enquiry if the limitation can be justified. It is, ultimately, an assessment based on proportionality: the means used to limit the right must be proportionate to the public good sought to be achieved by the limitation. If the means used are proportionate then the limitation of the right is justifiable.
If the attacked law is constitutional then the application must be dismissed. If the means used are disproportionate, the limitation of the right is unjustifiable and the law is unconstitutional. The next step is granting a remedy. Section 35 of the Constitution says a remedy must be appropriate. What is appropriate depends on the facts of each case. The court's remedial powers are wide. The theory of objective constitutional invalidity asserts that a law inconsistent with the Constitution is invalid from the date the Constitution came into effect.
Inconsistent laws passed after the adoption of the Constitution are invalid from the date they came into force. Therefore the default position is that an order of constitutional invalidity operates with full retrospective effect. Thus the attacked provisions in the STA and Sedition and Subversive Activities Act are invalid from 2005 and the impugned provisions in the STA are invalid from 2008 and 2005 respectively. On what basis, therefore, did the court invalidate them on the commencement of the constitutional challenge in 2014? It boggles the mind really.
This seems to be inappropriate more so because it does nothing for the successful party. An appropriate remedy should have benefited the successful party but in this case dololo—atleast in the strict sense. Secondly, I don't know of any precedent for such a remedy in our jurisdiction, maybe it is because I am not a lawyer. Usually, when a court strikes down provisions that create criminal offences, it benefits all whose cases have not been finalized--- people awaiting trial and those whose appeals have not been heard.
I believe our court misunderstood the case of the South African Coalition of Gays and Lesbians vs Minister of Home Affairs it cited and relied heavily on. In this case, the South Africa court found that it was unconstitutional to criminalize sodomy but refused to acquit people who had already been convicted. The court directed that people could lodge appeals and cite its ruling in order to be acquitted. The court did this so as not to deprive the lower court the right to consider other factors it may have deliberated on when arriving at the already existing convictions e.g. being forcefully sodomised.
What the court didn't do even there was limit the unconstitutionality of the acts, i.e. the said law was unconstitutional even when those people were tried and sentenced but it didn't want to issue a blanket order for mass acquittals saying each case must be reviewed based on its merit. There are many others that make the same point like the reverse onus cases: Zuma, Coetzee, Bhulwana, Manamela etc. The other problematic part about the judgment is the fact that it didn’t award costs to the applicants.
While it is trite that costs lie within the discretion of the court, the Judges should have done well to follow the case of women rights activist Doo Aphane where costs were awarded against the Government in both the high court and the Supreme Court. At a broader level, one has to also dismiss the false notion that the STA has been scrapped in its entirety. The truth is that only sections were set aside. But assuming the entire law had indeed been set aside, then what? I argue that nothing would have changed. We would still have all the proscribed political parties, banned and operating illegally (and I conveniently ignore those who claim political parties can operate yet they cannot register legally so they can sue and be sued in their own name).
I posit that with or without the STA the fundamental political contradiction of Tinkhundla royal misrule remains the big elephant in the room. What the judgment merely did was remove Swazis from solitary confinement to the general section of the same prison. I’ve recently found myself to be a regular commentator on Swaziland for South African radio station Power FM. I was once asked a question many probably asked themselves in the advent of the constitutional litigation: did the judgment matter in the body politics of Swaziland? The simple answer was an emphatic NO.
The judgment, while it helped to open up some closed spaces for political activists to organize and vituperate, it did not resolve the historical Swaziland political contradiction of Tinkhundla royal misrule. Anything, therefore, that does not resolve this historical contradiction does not change our body politics. It becomes cosmetic. Perhaps some context is important to illustrate this point.
The STA and the Sedition and Subversive Activities Act 46 of 1938 have for a long time now, been a subject of controversy in Swaziland’s foreign relations, particularly with the European Union and the United States government. This saw Swaziland losing duty free African Growth and Opportunity Act (AGOA) markets in 2015 for failure to meet some agreed benchmarks. Both these laws were due to be amended for Swaziland to regain AGOA markets.
Knowing our obstinate government, they procrastinated on the STA knowing amending the law would invariably loosen the noose on their political nemesis neck. Remember it is the STA that had done well to cage the political opposition into a state of comatose. The stage was therefore set on either amending the law via the courts (and save face) or initiating a parliamentary process. Many, like me, saw the court route as fait accompli. It provided the perfect cover for the government instead of the humiliation of ‘we told you so’ from adversaries.