On 15 July 2024, the High Court of Eswatini sentenced former Members of Parliament Mduduzi Bacede Mabuza and Mthandeni Dube to 25 and 18 years imprisonment respectively, ostensibly for the crimes of sedition, “terrorism” and murder. While the matter touches on various constitutional and domestic legal questions, it has profound implications for the right to freedom of expression. The conviction and sentencing of Mabuza and Dube evoke serious and disturbing questions about the future of freedom of expression in Eswatini.

Demands for Change Prompt a Brutal Crackdown

In May 2021, an alleged act of police brutality prompted a massive wave of protests that quickly crystallised around calls for democratic reforms in Eswatini—the last absolute monarchy in Africa. The government responded with a heavy crackdown, banning all protests or demonstrations and authorising security forces to use lethal force to suppress the protestors. The situation quickly escalated, with reports of looting, arson, and violent clashes between protestors and security personnel. By July, close to 100 protestors had been reported killed.

In the month leading up to the crackdown, Mabuza and Dube delivered six speeches advocating for democratic reforms. Their central demand was that the Prime Minister should be directly elected by the people, not appointed by the monarch. The MPs called on their constituents to deliver petitions to the government to achieve this vision. On 24 June 2021, the government issued a Banning Order prohibiting the delivery of further petitions. The same day, Mabuza encouraged constituents to continue delivering petitions in defiance of what he described as an “unconstitutional and unlawful” order.

An Attack on Freedom of Expression

At its core, it is easy to conclude that the case against Mabuza and Dube was an attack on freedom of expression in Eswatini. Both MPs were charged with sedition for “encouraging people in public statements to disobey the lawful banning by the Government of Eswatini of the delivery of petitions” and thereby encouraging civil disobedience. Critically, these charges were almost entirely predicated on the content of their political speeches. The Court devoted well over 100 pages of its 148-page ruling to analysing the content of the six speeches compared to only nine pages dedicated to whether they could be held liable for murder.

The charges themselves also reveal a preoccupation with suppressing free expression. Prosecutors argued that the six speeches had violated two statutes—the Suppression of Terrorism Act of 2008 as amended (“Terrorism Act”) and the Sedition and Subversive Activities Act of 1938 (“Sedition Act”). These statutes have been strongly criticised for violating the constitutionally protected rights of freedom of expression, assembly, and belief. The Sedition Act, in particular, has long been used to suppress dissenting political speech, especially speech perceived as critical of the monarchy.

Alarmingly, the prosecutors used provisions of the Sedition Act that were struck down by a High Court in 2016 for unconstitutionally infringing upon several fundamental rights. While the Supreme Court has since agreed to hear an appeal to that case, the 2016 ruling should ideally remain good law unless and until the Supreme Court issues a different opinion. Interestingly, the Court has already declared in Goodwill Sibiya v The King (2019) that “to prosecute people on legislation that has been pronounced by the Courts to be inconsistent with the Constitution would be undermining the judgement of the Court and … [an] accused person’s rights to a fair trial.”

However, one potential benefit of retaining the convictions under the Sedition Act might be political rather than legal. The conviction and sentencing of Mabuza and Dube warn other potential critics that the government will punish any political dissent, even when that punishment contradicts constitutional rights like freedom of expression.

The relative severity of the defendants’ sentences further illustrates the state’s focus on suppressing and punishing dissent. The defendants’ entire prison sentences are derived from their convictions under the Terrorism Act—convictions which were entirely based on the contents of the MP’s speeches. By contrast, the Court handed down much shorter sentences for each murder conviction, thereby implying that dissenting political speech is a far more severe offence than even murder. The message could not be more explicit— “dissent will not be tolerated.”

Using Murder Charges to Suppress Speech

The murder convictions also raise concerns about the state of freedom of expression in Eswatini. Mabuza and Dube were each charged with two counts of murder for the deaths of two protestors, who were killed after being struck by a car at a roadblock near Hilltop, a township in Mbabane. The Court acknowledged that neither MP had been physically present at the scene, neither had ever endorsed violence in their speeches, and both had called on constituents to remain peaceful. These findings precluded convicting the defendants of murder under a conventional legal theory.

Instead, the Court relied on a legal doctrine known as dolus eventualis, which theoretically empowers courts to convict defendants of murder if they recklessly engaged in an unlawful act that they knew might result in the death of another. In practice, Eswatini courts usually apply the dolus eventualis doctrine to convict individuals of murder when there is insufficient evidence to prove direct intent, even though there is little doubt that the defendant’s act directly caused the victim’s death. For instance, in the recent case of Rex v Mncedisi Johnson (2023), the High Court found the defendant guilty of dolus eventualis murder because, though it could not prove premeditated intent, it determined that the defendant foresaw that he might cause the victim’s death by repeatedly stabbing them.

Given this legal precedent, using the dolus eventualis doctrine in the case of Mabuza and Dube was unprecedented, far-reaching, and potentially dangerous. It was undisputed that the MPs were not directly involved in the events leading to the deaths of the protestors. The idea that the MPs could have known that urging their constituents to deliver petitions peacefully might lead to fatalities is thus difficult to accept. The Court’s use of this doctrine against Mabuza and Dube prompted intense criticism, with one critic even accusing it of “deliberate[ly] failing to understand the concept of murder dolus eventualis.” Yet the Court found both MPs guilty of murder and, in doing so, may have set a precedent for holding political activists criminally responsible whenever their speech can be indirectly linked to any harmful outcome, regardless of how weak the cause-and-effect relationship is.

Considering this analysis, it is difficult to escape the conclusion that both men were found guilty not because of any actual criminal activity but rather because they voiced dissenting opinions against the government of Eswatini. The conviction and sentencing of Mabuza and Dube thus represent both a miscarriage of justice and a warning of things to come. The Court has made its position abundantly clear—there is no freedom of expression in Eswatini.

Written by Michael Weaver & Melusi Simelane, Southern Africa Litigation Centre