Freedom of Association and Assembly / Protests, National Security, Political Expression
Vogt v. Germany
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The High Court of Swaziland held that certain sections of the Sedition and Subversive Activities Act No. 46 of 1938 and the Suppression of Terrorism Act 3 of 2008 infringed the fundamental rights to freedom of expression and association guaranteed by the Constitution. The Court further held, in light of its own jurisprudence and foreign cases on the validity of restrictions on free speech, that these rights are not absolute but that the Respondents had failed to show that the restrictions placed on the Applicants were reasonably required and proportionate. Further, the Court found it unlawful to limit free speech for the sole purpose of shielding the government from criticism or discontent. The Applicants had been arrested on charges of sedition, subversion, and terrorism for their membership in an opposition movement, wearing its t-shirts and chanting slogans associated with the movement.
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In a consolidated case before the High Court of Swaziland, Thulani Maseko, Maxwell Dlamini, Mario Masuku, and Mlungisi Makhanya (applicants), challenged the constitutionality of provisions of the Sedition and Subversive Activities Act of 1938 and the Suppression of Terrorism Act of 2008.
Maseko was arrested and charged with “uttering words with a seditious intention” after speaking at a May Day Celebration in May 2009. In his motion, dated June 18, 2009, he filed an urgent petition, asking the High Court to declare the Sedition and Subversive Activities Act null and void on the ground of incompatibility with Sections 1, 2, and 24 of the Constitution of Swaziland. Alternatively, Maseko challenged the constitutionality of Sections 3, 4, and 5 of the Act.
Dlamini along with two other political activists was also arrested and charged with acting with seditious intention for participating in a rally while carrying a banner, calling for the boycott of the 2013 national elections.
Dlamini was again arrested with Masuku after speaking at a May Day Celebration in May 2014. They were both charged with two counts of contravening the Terrorism Act, one count of sedition, and one count of subversion.
Section 3 of the Sedition and Subversive Activities Act defines “seditious intention” as an intention to:
“(a) bring into hatred or contempt or to excite disaffection against the person of His Majesty the King, His Heirs or successors, or the Government of Swaziland as by law established; or (b) excite His Majesty’s subjects or inhabitants of Swaziland to attempt to procure the alteration, otherwise than by lawful means, of any matter in Swaziland as by law established; or (c) bring into hatred or contempt or to excite disaffection against the administration of justice in Swaziland; or (d) raise discontent or disaffection amongst His Majesty’s subjects or the inhabitants of Swaziland; or promote feelings of ill-will and hostility between different classes of the population of Swaziland.”
Under Section 4 of the Act, a person who with seditious intention attempts, conspires, utters, or publishes seditious words “shall be guilty of an offence and liable on conviction to imprisonment not exceeding twenty years or to a fine not exceeding E20,000 and any seditious publication relating to an offence under this section shall be forfeited to the Government.”
And Section 5(1) imposes imprisonment for a term not exceeding 20 years without the option of a fine for the commission or attempt to commit subversive activities. The provision defines subversive as “(a) supporting, propagating or advocating any act or thing prejudicial to (i) public order; (ii) the security of Swaziland; or (iii) the administration of justice.”
In addition, Dlamini and Masuku jointly and the fourth petitioner, Makhanya, separately challenged, inter alia, the following provisions of the Terrorism Act: paragraphs (1), (h), and (2)(j) of Section 2; Section 11(1)(a), (b), and (2); Sections 28 and 29(4).
Under Section 2 of the Act, terrorism includes an act or threat of action that causes death of a person or the overthrow of the government and that the act involves: serious bodily harm to a person; damage to property; a serious risk to the health or safety of the public or a section of the public; the use of firearms or explosives; or use any dangerous, hazardous, radioactive or harmful substance, etc.
Section 11 on soliciting and giving support to terrorist groups imposes imprisonment for a term not exceeding 15 years against a person who knowingly “(a) solicits support for, or gives support to, any terrorist group, or (b) solicits support for, or gives support to, the commission of a terrorist act.”
Under the provisions of Sections 28 and 29(4), the Attorney General of Swaziland upon reasonable grounds that an entity has knowingly committed or participated in the commission of a terrorist act is empowered to recommend to the minister responsible for national security to designate such entity as a terrorist organization. The provisions, however, do not afford the entity an opportunity to make representation before the final declaration of the minister, only to petition for its rescission thereafter and members, associates and supporters of the entity have no opportunity to be heard at any stage.
The applicants argued that the impugned provisions of the Sedition and Subversive Activities Act of 1938 adversely affected and infringed their right to freedoms of expression and association guaranteed respectively under Articles 24 and 25 of the Constitution. The government, on the under hand, submitted to the High Court that the charges were permissible restrictions on their rights.
The Court reiterated that freedom of expression “is not absolute and as such, there are limits within which it maybe exercised.” [para. 17] In light of its own jurisprudence and a number of foreign cases on the validity of restrictions on free speech, the Court addressed whether the limitations imposed by the Act were “proportional to the mischief sought to be regulated or whether there is a rational connection between such limitations and objectives to which restrictions or limitations relate.” [para. 22] The Court held that the objectives or interests “may only be of ‘defence, public safety, public order, public morality or public health’ or the other interests enumerated under section 24(3) or 25(3) of the Constitution.” [para. 22] On the other hand, the Court found it unlawful to limit free speech for the sole purpose of shielding the government from criticism or discontent.
As to the impugned provisions of the Suppression of Terrorism Act of 2008, the Court first determined that the arrest of the applicants for belonging to the People’s United Democratic Movement, chanting its slogans, and wearing t-shirts associated with the movement interfered with their rights to freedom of expression and association. The Court went on to state that the government did not provide any sufficient justification as to why such limitations could be appropriate under the Terrorism Act, nor did they address whether the enforcement of the impugned provisions was proportional to the applicants’ conduct.
Further, the Court held that under Sections 28 and 29(4) of the Act only an entity is given the right to petition Attorney General or a court to rescind the declaration of being designated as a terrorist organization. As a consequence, the entity’s members are effectively declared terrorists before they are given the opportunity to be heard. According to the Court, “it is against the rules of natural justice or procedural fairness or administrative justice that a person can be condemned before he has been given the opportunity to be heard on the issue under consideration.” [para. 36]
Based on the above findings, the High Court entered its judgment, declaring:
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the High Court struck down legislation that infringed freedom of expression and association and was not reasonably required or justifiable in a democratic society.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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