The 2016 High Court judgment in this case came as a relief to many opposed to the present system in Eswatini because it found essential elements of two laws, regarded as highly repressive, were unconstitutional.
However, because the state wants to appeal the decision, charges under the terrorism and sedition laws, pending against a group of activists, have not been finalised either way.
In 2019, the Supreme Court wanted to hear and deal with the appeal, but could not do so because there were not enough judges available who could hear the matter – several members of that already small Bench were in one way or another associated with the issue and would have had to recuse themselves.
Now the appeal is set for hearing on 30 August, and the Southern Africa Litigation Centre (SALC) has warned that the problem of whether there are judges who can hear the case has not gone away.
According to SALC’s executive director, Anneke Meerkotter, this time around, when the appeal is due for hearing, ‘there is a strong likelihood that at least two of the judges on the Bench will again be partial’.
‘Two Supreme Court judges, (who are) former Attorney-Generals, actually deposed to the answering affidavits of the state in the High Court matter, with one of them even drafting the arguments presented by the state in the High Court.
‘No reasonable person could ever accept that a deponent to an affidavit in a case could later sit as a judge in the same case.’
Meerkotter urged the Eswatini judiciary to ensure ‘that the composition of the Supreme Court Bench (in this appeal) is properly constituted’ by judges whose impartiality was not in question.
She said that in the current appeal ‘there is a real risk that the fair trial rights’ of the group, charged under the contentious laws declared unconstitutional by the High Court, ‘will be imperilled if the two judges do not recuse themselves’.
In March 2019, the last time an attempt was made to constitute a Bench to hear the appeal, the Chief Justice, Bheki Maphalala, said that there were not enough Supreme Court judges to constitute the Bench needed to hear the matter.
He said there were at the time seven judges of the Supreme Court and that most of the them had dealt with the matter in some way. As a result, the case had been postponed until enough judges were available to hear the matter.
Although he had wanted to deal with the matter speedily, he said this had not been possible because the government had not agreed to the extra judicial posts needed. Unlike other jurisdictions, in Eswatini the judicial service commission did not have the power to advertise empty posts, ‘but we have to go to the Ministry of Public Service and beg for posts’, he said.
The judiciary was one of three arms of government and should be autonomous. However, it had to approach the executive ‘and beg’. He also said that the appeal against the High Court’s finding that sections of the law on terrorism and sedition were unconstitutional was not the only appeal unable to be heard due to a shortage of judges of the Supreme Court.
Further, he said that the case should in fact be heard by five judges, but that (in 2019) there were discussions with the parties on the acceptability of reducing the number of judges hearing the matter to three, in an effort to ensure it could be heard.
Now the appeal is slated for hearing at the end of August, but at this stage, the names of the judges who will hear the matter have not been made public, nor whether five or three judges will preside.
In its original High Court decision, the majority, Judges Mamba and Annandale, found that the government had been ‘woefully wanting’ and had not submitted any material at all to justify the limitations posed by the laws on the constitutional freedoms of Eswatini’s people.
The conclusion was thus ‘inescapable’ that the two laws were unconstitutional.
But while the majority of the court scrupulously avoided dealing with the crimes alleged to have committed by the applicants who challenged the validity of the two laws under which they were charged, the minority did not hesitate to do so.
Judge N J Hlophe, who wrote the minority decision, said that the trial should first take place. If the accused were acquitted that would be the end of the matter and the court would not need to decide the constitutional question. This was the preferable approach because it was not advisable to decide a constitutional question where a matter could be decided on other grounds.
Hlophe also agreed with argument by the Government that in Eswatini, unlike other democratic countries whose jurisprudence was cited by the majority, it was the applicant, rather than the government, that had to show that a law limiting freedom of expression and association ‘was not reasonably justified in a democratic society’.
The diametrically opposing views by the High Court on such fundamental issues will be among the matters for the appeal judges to decide in this case.