PUDEMO’s Secretary General Mlungisi Makhanya is launching a constitutional challenge of the Suppression of Terrorism Act, a first of its kind since the law was promulgated in 2008. I had time to chat to him about the case and its political implications. The STA has been widely condemned by such credible bodies as Amnesty International, International Bar Association from among many organisations. This week Thursday March 19, 2015 the case is seating at the High Court where a full bench will listen to the case. Mlungisi Makhanya spoke to me about the court case and other related matters of the Swazi struggle.
MN: We hear that Pudemo, or perhaps you, as an individual, are challenging the Suppression of Terrorism Act (STA). What is this challenge about?
Makhanya: Yes, it is true, myself together with PUDEMO President Cde Mario Masuku, former PUDEMO Secretary General and leading Human Rights Lawyer Cde Thulani Maseko and SWAYOCO Secretary General and Former President of the Student Representative Council of the University of Swaziland Cde Maxwell Dlamini have launched a legal challenge to the legality of the Suppression of Terrorism Act no. 3 of 2008 and the Sedition and Subversive Activities Act, 1938.
We are challenging these draconian pieces of legislation as individuals and quite interestingly, Cde Thulani launched his challenge as early as 2009 (when he was arrested for Sedition for claiming that the Mbabane high way must be renamed after another human rights lawyer an also PUDEMO activist Musa MJ Dlamini who died under a bridge on the high way following a bomb explosion) Cde Maxwell launched his sometime in 2013 (after being charged with Sedition for organising a SWAYOCO rally in Msunduza against the king’s birthday) and myself last year. So you can clearly see from these timelines that it was concerned citizens who feel strongly about this legislations who felt the need to challenge them.
MN: But the STA has been with us for seven years now. So why challenge it now? What has changed?
Makhanya: Remember the STA was passed few months after the Lozitha bridge bombings that sent shock waves in the country. We were all worried about what was happening since we are known as a relatively violent free nation. Many of us did not take time to read the Act and we waited hoping to learn more about what transpired on that fateful day, using the criminal trial of those alleged to have been behind the bombing. Unfortunately, due to the secrecy that surrounded that trial and endless classifications of alleged key evidence, we are in no better situation now than we were before the trial. Seven years into the STA, we have realised that, it was a piece of legislation targeted at pro-democracy movement in general and PUDEMO in particular thus our resolve to fight for its amendment. You will notice that even world powers who were silent or tacitly supported it yesterday have now realised that it has been used to target democracy activists.
MN: Why should the world care about the challenge? What will it change in the body politic of SD?
Makhanya: This is a very important case not just for Swaziland but for the entire world because at the heart of it is the issue of Swaziland being a Constitutional Kingdom, governed by a Constitution as the Supreme law on the one hand or a country ruled by the whims of one man on the other. Remember, Swazi government goes around telling the world that Swaziland is a Kingdom governed by a Constitution and where the rule of law, as opposed to the rule of one man, is supreme. This case therefore presents a litmus challenge to that assertion. What will change in the body politic of Swaziland post with this case is that Swazis will know with greater certainty if indeed the Constitution is worth the paper it is written on and if they can rely on the fundamental rights provisions provided for in the Constitution or not.
MN: At what stage is the case now?
Makhanya: The case is at a stage where we (the applicants) have filled all our papers, including our Heads of Arguments, together with our bundle of authorities. However, I am not certain if government as the represented by the Attorney General have done same. Nevertheless, the matter is now set down for arguments in open court come the 19th March 2015.
MN: Who are the judges making up the full bench?
Makhanya: The Judges hearing the matter are Justice M.C.B Maphalala, Justice N. Hlophe and Justice Annandale.
MN: I hear you are bringing very senior and well experienced advocates. Tell us more.
Makhanya: Yes it indeed true, we have engaged the services of experienced counsels from South Africa, including Advocate CR Jansen SC, Advocate M Dewrance, Advocate P Harthon and two other leading Advocates.
MN: Given the problems of the judiciary in Swaziland do you fancy yourself winning? Aren’t the odds staked against you right from the beginning?
Makhanya: We are well aware of the challenges facing the judiciary in our country, however, we have confidence in the Justices who will be hearing this matter and believe they will disperse justice without fear or favour. One must also hasten to say that there are many good and experienced Swazi judges in the bench, who have, despite the challenging conditions, dispersed justice without any bias. What remains a challenge is that the rotten apples are domineering and taking the shine out of the very good judges we have.
MN: Let me be clear. You go to court and you at best win and at worse lose then what? Will it change the size of Robert Mugabe’s shoes?
Makhanya: Well our victory will go a long way in restoring dignity to the people of our country, in particular in relation to freedom of expression, freedom of association and other related freedoms. However, victory in this case will not necessarily mean overnight FREEDOM for the people Swaziland because there are still a number of problematic pieces of legislation that are an affront to the Constitution. The rights of women for instance are still trampled upon in our country but we need to keep on fighting on to expand the frontiers of freedom.
MN: Are you implying therefore that PUDEMO supports the constitution which in the past you have rubbished?
Makhanya: As PUDEMO we will never support the Constitution in its current form. However, we do not turn a blind eye or ignore some of those provisions in the current constitution that gives space to our democratic aspirations. We will use and defend them where necessary while calling for further opening up of the political space. Remember, these rights are not an act of charity from Tinkhundla but our God given human rights so we must defend them while calling for full recognition of all our rights. We struggle under conditions of not our making but those imposed on us by prevailing circumstances. We will therefore litigate under the present Constitution with all it’s limitations.
MN: If you lose then what?
Makhanya: If we lose, which I hope won’t happen, we will have to sit down and read the judgement and decide our next course of action. This may include launching an appeal to the Supreme Court. However, it is important for me to emphasize that the legal challenge doesn’t mean we have suspended our mass struggles on the ground; mobilization of Swazis to stand up and demand their God given rights and freedoms. It has always been our belief that the liberation of Swazis can only be an act of Swazis themselves not some messiah from out of space. It is important though to remind you that some important rights and freedoms have been won through the same courts both in this country and the rest of the world. It was through a court challenge that one of the founding members of PUDEMO, Cde Professor Dlamini, successful challenged and overturned the notorious Non-bailable Offense legislation. The death penalty was abolished through a court process in our neighbouring South Africa. So courts play a very critical role in advancing or constraining the rights of citizens. This must be seen as one leg of the overall struggle for fundamental transformation. Other legs of this struggle involves boycotts, mass action, political education, isolation of the regime internationally etc.
MN: Lets admit it, you spending a lot of money on the case. Wouldn’t you rather have used the money on campaigns and mobilising which would in turn lead to a mass uprising than waiting for the courts to pronounce the fate of your struggle?
Makhanya: Indeed, one has had to pay hundreds of thousands of Emalangeni in this case and it is still a long way to go. However, you must remember that the value of freedom can never be qualified in emalangeni and cents. Comrades such as Noxolo Mdluli, Mxolisi Mbatha of SFTU, Sipho Jele and many others paid with their dear lives. Bringing Senior Counsel, an experienced Advocate, who has been an Acting Judge of the High Court in South Africa together with his juniors was never going to come cheap. Combine that with the inclusion of top Swazi lawyers in the form of Mandla Mkhwanazi and Leo Gama you come to realise how I have dug deep into my reserves. However, I must state upfront that I would do anything for the FREEDOM of my people, including selling my assets if needs be.
Litigation is part and parcel of campaigning, we mobilize and organise people around these processes of legal challenges. Don’t forget that it was the court pronouncement that led to the longest ever strike by lawyers in this country and that was an uprising, so don’t underestimate the powers of court rulings in advancing a struggle. Well as for my fate, as it is the case with the fate of all the oppressed Swazis, is in my hands not the courts. By litigating I am not putting my fate in the hands of the courts but I am merely bringing to the attention of the courts what is wrong with these pieces of legislation.
MN: It would seem this is a massive case that will effectively make PUDEMO ‘legal’. Do you think the regime will adhere to the ruling of the courts should you win? And I am speaking hypothetically here given how they dealt with Macetjeni (http://www.irinnews.org/printreport.aspx?reportid=61305) issues where the court rulings were ignored. Are we to see history repeating itself here? Or you doing this case merely as a formality?
Makhanya: I do not think victory in this case will lead to PUDEMO being legalized per se. That is not even our prayers to court at this stage. The Suppression of Terrorism Act outlines a procedure that any listed entity/person need to follow if they want a review of the decision to proscribe them. That is not what the current legal processes are about. However, I would want to believe that PUDEMO and other listed entities may soon embark on a process to have their proscription reviewed and hopefully set aside. One can never vouch for this government, I think it has proven over and over again that it has no regard for the rule of law. However, that should not mean that as citizens we must stop litigating. The more we litigate and score legal victories and the government ignores them, as you are citing the Macetjeni issue, the more the rest of the world see the sort of monster we are dealing with. So either way, it is victory for democracy and freedom yearning people of our country.
MN: This constitutional challenge now halts the many cases that hinge on the STA. What effectively happens to Mario and Maxwell’s cases? Prolonged stay in jail?
Makhanya: It is indeed sad that this challenge has meant a delay in the proceeding of all criminal trials of people charged under these pieces of legislation. However, it is very critical that we get legal clarity on the legalities of these laws. Yes it has meant more months and possible years for Cde Mario and Maxwell, but I believe in the long run it will be to the benefit of all affected.
MN: There are also other outstanding cases of Mbendzi, Zonke etc who are awaiting appeal. Update us what is happening on those cases?
Makhanya: The case of Cde Amos Mbedzi is going to be heard in this May’s session of the Supreme Court of Appeals and we are looking forward to it. It is an important case for us as far as ascertaining as to what exactly happened with the Lozitha Bridge Bombings, including the troubling findings of the High Court that associated PUDEMO with that incident. I remain convinced that PUDEMO had nothing to do with that bombing and I’m still waiting for anyone to show me any shred of evidence that the movement was involved. What makes that case complicated also is the fact that certain aspects of what would be possible evidence was classified and we cannot get access to it to satisfy ourselves as Swazi citizens concerned about what transpired. With regard to the matter regarding Cde Zonke Dlamini we are still waiting the Registrar of the High Court to put it on the appeals roll and allocate it a date. We hope and pray that it will find space in the November sitting of the Supreme Court of Appeals.
MN: And on the PUDEMO 7?
Makhanya: The case of the PUDEMO 7 was postponed to June 22 & 23 for trial, subject to the conclusion of the Constitutional challenge matter.
MN: The courts have been corrupted in Swaziland. What other forms of pressure will you exert outside of the court process in the fight against the STA?
Makhanya: Well I wouldn’t want to say the courts are corrupted as you are putting it. Yes there are challenges in the judiciary but to say courts are corrupted in the country is an extreme view that cannot be supported by empirical evidence. Remember, we are out on bail given by the very courts. The fact that we witnessed great injustice in the matter of Cde Thulani and Bheki on one hand and the bail application of Cde Mario and Maxwell on the other, doesn’t mean the courts cannot be trusted. It simply means, in my view, we are having a serious challenge with that specific presiding judge and that is a separate matter altogether. We will continue lobbying the International community to pressurize Swaziland to amend that legislation, while simultaneous educating Swazis on the problems presented by retaining that piece of legislation in its current form in our statutes. I always tell people that the STA is so vague and wide to the extent that a medical doctor could be charge with Terrorism for attending to a “listed person”, and surely that is ridiculous.
MN: In your prayers do you want the court to amend the STA or scrap it off? If amended, what are the contentious clauses of the law?
Makhanya: We believe that it will always be necessary for any country to have a legislation to combat the evils of terrorism, so it is not our prayers that legislation be completely scrapped. We pray for amendments of specific contentious sections that we believe are unconstitutional. Subsection (1) of the definition of “Terrorist Act” declares all offenses in terms of the act, to be “Terrorist Acts”. The subsection contains none of the saving provisions as does subsection (2) in (2)(k) and (2)(l) of the definition. In actual fact subsection (1) makes all offenses in terms of the STA to be “Terrorist Acts” irrespective of the underlying primary or secondary intention as required by international law. We contend that the purpose of the Act, namely to combat terrorism, is completely absent in the said paragraph. The definition of a “Terrorist group” is also problematic for us, you become a terrorist simply because the legislation calls you that not because you are engaged in terrorist acts. The concepts loses its meaning when the word itself becomes the principal mode of defining itself. There are number of sections that we are praying that they be reviewed and set aside but one may not go deeper into them now, as the matter is still pending before the courts, as you will be alive to the sub judice rule. We will be making our case in court on the 19th of March 2015, which is why we are inviting all Swazis to descend to the High Court to hear for themselves.
MN: How far do you intend to go with this case? Do you plan to go to courts outside of Swaziland?
Makhanya: Well it will depend on a number of things, including the reasons for the judgement. Like I said earlier, we will study the judgement and our next course of action will be informed by reasons advanced in the judgement. But yes it remains an open avenue, so we have all options on the table.
MN: Doesn’t Swaziland not have a legitimate case to fight terrorism? What can the Swazi government do to protect the state against threats of terrorism as they have wreaked havoc in northern Africa, for example?
Makhanya: I believe it is the duty of every government to guarantee the safety and security of its citizens and the Swaziland government is obliged to do same. However, it is the manner that a state goes about doing it that becomes problematic. The fight against “terrorism” should never be used to erode rights and freedoms of citizens. I would not be privy to safety and security information at the disposal of the executive to make a judgement about possible terrorist threat to Swaziland. However, I know that those calling for democratization are not terrorists nor do they pose any terrorist threat to the Kingdom.
MN: Tell us about Mario Masuku. We hear he is sick and denied medical attention. What is his state of health?
Makhanya: The health situation of President Mario is a grave concern to me as he is unwell and being a diabetic person, the poor diet in Swaziland’s prisons have made the situation worse. He is in bad health state but as you would know Cde Mario, he is posturing strong yet he is very unwell. He requires urgent expert medical attention, which he cannot presently get within the prison facilities and possible even in Swaziland as there are few medical experts there.
MN: Most people think there are only one or two political prisoners in Swaziland. Tell us how many are they? And what are their offences?
Makhanya: There are many political prisoners in the country, one will have to be very careful not to be reductionist when defining political prisoners. The well-known ones are obviously Mario Masuku, Maxwell Dlamini, Zonke Dlamini, Bheki Makhubu, Thulani Maseko, Amos Mbedzi, etc. You have many Swazis languishing in jail for struggles they took up fighting, for example, impositions of chiefs, forceful taking of their land and many other issues which fly below the radar. I am just reminded of the the case of two young men who were sentenced to lengthy jail terms for stoning the car of Cethuka Dlamini. Those are political prisoners in my view. Remember, when Nelson Mandela was sent to prison, it was said it was for sabotage and terrorist related offenses and later High Treason. This is the case with many freedom fighters across the world. You will struggle to find a regime admitting that a certain freedom fighter is imprisoned for his views or political beliefs. The Egyptian dictatorship will tell you that Former President Morsi is in jail for terrorism and other laughable charges.
MN: Is PUDEMO still in existence in Swaziland and how come the world does no see thunderous support for their President during court appearances. Give us proper context of the state of PUDEMO inside SD because it is seemingly too quiet.
Makhanya: PUDEMO is well and alive in Swaziland and continues to lead the liberation struggle there. To understand PUDEMO, one needs to understand its character; that of a liberation movement. This simply means that PUDEMO exists through many formations and auxiliary structures, i.e. Trade Unions, Professional bodies, student organizations, churches, women organizations and many other forums. The reason you will not see multitudes of people in PUDEMO President’s court case is due largely to the STA and a deliberate tactical decision of the organization not to expose the majority of its activists and members to the regime for obvious reasons. I challenge you to show me any political trial even in South Africa where you saw thousands of members in attendance during the dark days of Apartheid. The appearance of our president has always attracted full attendance inside court. This is despite the endless roadblocks that are always mounted whenever they are due for court appearance. Many of our members have been turned back by police during these roadblocks. PUDEMO therefore is in a healthy state. Of course we are trying to rebuild ourselves following the devastating effects of the introduction of the STA in 2008 that criminalized everything that has to do with PUDEMO, including the mentioning of our name. So one has to understand PUDEMO within the context of the harsh realities it exists under, even under such trying circumstances it remains undisputedly the leading political force in the country.
MN: You are narrating a very serious political case on Thursday March 19. Have you done enough mobilisation given the political weight the trial holds?
Makhanya: The world can expect to see multitudes of Swazis descending to the High Court because they fully appreciate that it is not only the litigants who are on trial but it is the aspirations of the Swazi nation that is on trial. We have and need not mobilize simply because it is the depressing conditions that Swazis live under that are a mobilizing factor. It doesn’t need me to tell retrenched workers of Matsapha that things need to change nor does it require me to tell young academically deserving students who have been denied scholarship that they must fight for change. It is the ordinary people who are made to queue for long hours for sub standard medical care in government hospitals who know that time for change is now. It is those people who will fill the courts come the 19th.
MN: We hear senior COSATU leaders are coming to SD to visit Mario in jail from among other things. Tell us more.
Makhanya: Yes we will be receiving senior alliance leaders very soon, including those of COSATU. Having said this you will appreciate that it will not be prudent for me to divulge all information here for security reasons. The Swazi noble struggle continues to receive wide international support, as you heard the South African Economic Freedom Fighters National People’s Assembly, Emeritus Archbishop Desmond Tutu, the leading Tripartite Alliance Secretariat Statement, high profile musicians like Lira and DJ who have refused to perform in Swaziland in solidarity with our struggle from among many others. The Release Mario Masuku Campaign continues to gain momentum globally and it is a matter of time before you see a full mass rolling action coming from inside Swaziland.
MN: What can people do to support the release political prisoners in Swaziland in practical terms?
Makhanya: People will always support struggles in different ways, what is important is that they must support the struggle. I don’t want to be instructive on how the world can support our course, safe to say that the people of the world must isolate the Tinkhundla regime and make its leaders the pariah of the world. Things such as targeted sanctions, withdrawals of trade benefits such as what happened with AGOA, stricter conditions tied to democratization on the SACU receipts and cultural and sporting boycotts are some of the practical measures that could be considered.
MN: Thank you Mr Makhanya and good luck for Thursday.
Makhanya: Thank you well appreciated.
NB: Article sourced from permission from the author