Swazi court strikes the balance between protecting freedom of expression and national security

Last Friday, the Swaziland High Court handed down a significant judgment on the rights to freedom of expression in the context of the protection of national security. The court struck down a number of provisions in the Sedition and Subversive Activities and Suppression of Terrorism Acts on the grounds that they unjustifiably limited the rights to freedom of expression, association and administrative justice. In the majority judgment, written by Judge Mamba and assented to by Judge Annandale, the court held that the Swazi government had given no justification for why the laws – which the government admitted infringed the rights – constituted permissible limitations to the rights, and the provisions were therefore unconstitutional and invalid.

The case had been brought by a number of political activists who had all been charged with terrorism, sedition and subversion offences and faced prison terms of up to 20 years. The conduct that led to the criminal charges ranged from speaking at a funeral and a May Day event, to wearing a T-shirt with a logo of a banned political party. Hardly the stuff of hardline terrorism. What all their actions did have in common was that they were all directed at challenging the government and the current political system and the activists are well-known pro-democracy campaigners in the kingdom. They argued that because the definitions of the offences in the laws were so broad they enabled law enforcement officials to apply them to conduct which, objectively, did not constitute national security offences. They argued that in a democracy which protects the right to freedom of expression, political dissent must be protected and permitted and therefore the laws which criminalised such dissent were unconstitutional.

It is not only in Swaziland that national security offences have been used against political opponents. In Angola last year, 17 youth activists were charged with crimes of rebellion after meeting to discuss a book that addressed peaceful changes of government. The Angolan president, José Eduardo dos Santos, has been in power since 1979. And in Zimbabwe July this year, pastor Evan Mawarire, who initiated much of the recent protest action with his #ThisFlag campaign, was charged with inciting violence and disturbing the peace before the prosecutors attempted to change the charge to “subverting a constitutional government”.

What the Swazi judgment does is to stress that governments cannot resort to vague national security concerns as an excuse for infringing fundamental human rights. It recognises that the rights to freedom of expression and association are not absolute and so can be limited when there are legitimate concerns around the safety of the state and individuals, but requires that governments provide solid evidence when seeking to defend rights’ infringements on national security grounds. The court criticises the Swazi government’s approach of merely stating that the limitation of the rights through the legislation was required “in the interests of certain public purposes”. The court described this as “not an adequate answer to the challenge” and characterised the government as having been “found woefully wanting” by not providing strong evidence for why the laws were necessary to protect national security and the public.

There is no doubt that there is a delicate balance to be reached between protecting freedom of expression and national security. In 1995, a group of experts met at the University of the Witwatersrand in Johannesburg and adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information which seek to provide guidance on how to ensure that that balance is achieved. One crucial element of the principles is that they recognise that the use of national security as a ground for restricting rights will be illegitimate if used to “protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest”.

In requiring the government to provide solid evidence to explain why a national security law which limits rights is necessary, the Swazi High Court has made it harder for the government to blithely refer to national security concerns when political opponents are silenced. In 2015, an American federal district court judge, James Boasberg, warned that “[i]ncantation of the magic words ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty”. Now, in Swaziland, following this judgment, those magic words have lost some of their power and the ability of Swazi activists to speak and act freely has been enhanced.

By: Caroline James, freedom of expression lawyer at the Southern Africa Litigation Centre. The Southern Africa Litigation Centre provided support for this case