Mlungisi challenges anti-terror law in court

“The Terrorism Act's definition is ridiculously overboard,” says Mlungisi Makhanya. “It does not follow international norms on the combat of terrorism”. He is the Secretary General of the People's United Democratic Movement (PUDEMO) in the tiny absolute monarchy of Swaziland, a political party that is seen as a terrorist organization according to the country's Suppression of Terrorism Act.

And he should know. In April, he was charged together with six other PUDEMO-members for wearing a t-shirt with a PUDEMO logo and allegedly chanting slogans that call for political reform in Swaziland, or as the charges put it, “chanting terrorist slogans”. Makhanya and his co-accused grant that they wore the t-shirts, but deny having shouted the slogans. Their next court session will be on September 15.

Many other PUDEMO members, including PUDEMO President Mario Masuku, are in prison for alleged “terrorism”. Masuku is charged with shouting “Viva PUDEMO” and criticizing the Swazi government on May Day.

Makhanya is therefore challenging the law together with the six others who were charged with him in April. “We are asking the court to force the government to rework the Act. We believe its broad and vague definition of a 'terrorist act' is incompatible with the constitution and Swaziland's human rights obligations.”

Terrorism is commonly defined as violent acts intended to create fear that deliberately targets the safety of civilians. A UN Secretary General report from 2004, for instance, described terrorism as any act “intended to cause death or serious bodily harm to civilians or non-combatants.”

Amnesty International has defined terrorism as the use of deadly or serious violence, to cause fear among the population, and to further an underlying political or ideological goal. Only when all these three conditions are fulfilled should an act be criminalized as terrorist, says Amnesty in a report on the Swazi Terrorism Act.

Mlungisi Makhanya insists in his affidavit to Swaziland's High Court that he was only exercising his right to freedom of speech by wearing the t-shirt and that PUDEMO has never advocated violence and never been involved in any terrorist acts. “PUDEMO's peaceful nature appears from its constitution as well as from the various political utterances that it has made from time to time,” he wrote.

Swaziland absolute monarch, King Mswati III, called Nelson Mandela “an icon” and praised his “outstanding wisdom, spirit and moral stature” when Mandela passed away last year. But under the current definitions of “terrorism” in the Suppression of Terrorism Act, Mandela would surely have been detained and charged, had his struggle for democracy been in Swaziland and not in neighbouring South Africa.

Mlungisi Makhanya's challenge will be heard in Swaziland's High Court on December 1 and if it is successful it will change the course of history in Swaziland in a big way, he says. “Wearing a PUDEMO-t-shirt or shouting Viva PUDEMO won't be a criminal offense anymore, and it will pave the way for Swazi's to meaningfully take part in the affairs of their country without fear of arrest and detention.”

Section 24 of Swaziland's Constitution guarantees the right to freedom of expression, while section 25 guarantees the right to freedom of association. Swaziland has signed several human rights treaties, including the International Covenant for Civil and Political Rights and the African Charter on Human and People's Rights, and has adopted a UN Global Counter-Terrorism Strategy, a document that states that “measures to ensure the respect for human rights for all and the rule of law [are"> the fundamental basis for the fight against terrorism.”

* Peter Kenworthy is a journalist with Africa Contact, Denmark

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