Civil society groups threaten court action over US deportations of criminals to Eswatini

Daily Maverick

6 days ago

The NGOs called on the Eswatini government to clarify the legal and factual basis on which the five individuals were accepted into Eswatini and to commit to not accepting inmates from third countries.
Civil society groups in Eswatini and South Africa have threatened legal action against the Swazi government for accepting five hardened third-country criminals from the US.
And Eswatini's Prime Minister Russell Dlamini has said his country is open to receiving more deportees if requested to do so by the US and if Eswatini has the capacity.
The Swaziland Litigation Centre, the Swaziland Rural Women's Assembly and the Southern Africa Litigation Centre based in Johannesburg have issued a statement in which they threatened legal action if the Eswatini government did not back off from the deportee deal with the US.
The US Department of Homeland Security spokesperson, Tricia McLaughlin, said last week that the deportees, from Cuba, Jamaica, Laos, Vietnam and Yemen, had criminal records which included convictions for murder, homicide and child rape.
They were 'so uniquely barbaric that their home countries refused to take them back', she added.
The Eswatini government confirmed that the men had arrived and had been detained. It claimed they presented no threat to Swazi people.
But the three civil society organisations said the arrival of the men raised many questions — especially in a country where correctional centres were overcrowded, the government was grappling with a range of crises, including a shortage of essential medicines, 'and where there have been consistent calls for a democratic, open and transparent government'.
They asked whether the convicts had been sent to Eswatini to serve out the remainder of their prison sentences or whether these sentences had already been served, and they left the US under removal orders.
They questioned whether the men had been informed that they were going to be removed to Eswatini, and whether they had access to consular services from their countries, an automatic right of every person detained in a foreign country.
'Who in Eswatini authorised the country's acceptance of these individuals, and on what legal basis did they do so? Are they detained under a detention warrant or a certificate of detention as per the Immigration Act? Any other basis of detention would be contrary to the Correctional Services Act No. 13 of 2017.'
The NGOs asked whether the convicts would remain in Eswatini until the end of their sentences, and if not, how long they would remain in the country.
'What we do know points to the illegality of the detention in Eswatini and the unlawfulness of their removal from the United States,' the three NGOs said, because Swazi law only allowed for two scenarios for the detention of convicts.
One was the transfer of a Swazi citizen convicted in a foreign state to serve their sentence in Eswatini. The second was the transfer of a foreign citizen convicted by a Swazi court to serve their sentence in their own country.
They noted that Swazi law stipulated that a citizen of Eswatini must consent voluntarily and in writing to be transferred from a foreign country to serve their sentence in Eswatini.
They said Eswatini's Immigration Act deemed any person convicted of murder in any country an undesirable immigrant. The government could grant such a person a temporary stay in exceptional circumstances, but there had been no indication of how long they would be detained in Eswatini.
They noted that the Eswatini government had claimed the convicts would be returned to their countries of origin — yet the US had said it was sending them to Eswatini because their countries of origin did not want them back.
Degrading treatment
The NGOs said the law required that 'someone who is to be removed to a third country should be given notice and opportunity to claim that such removal could expose them to torture or cruel, inhumane or degrading treatment.
'Removing people who had already served their sentences to be detained in a third country would amount to cruel, inhumane and degrading punishment and a violation of their right to due process. From a purely practical angle, it is unlikely that the individuals were able to exercise their due process rights given the haste with which they were sent to Eswatini.
'The United States has domesticated the Convention Against Torture, which means that they cannot send them to a country where people might be tortured. In the United States' 2024 report on Human Rights Practices in Eswatini, it noted the prisons were overcrowded, constituting inhumane treatment, and that there were reports of torture in prisons.'
The NGOs called on the Eswatini government to clarify the legal and factual basis on which the five individuals were accepted into Eswatini and to commit to not accepting inmates from third countries.
They called on the consulates of the countries where the five individuals are citizens to urgently arrange for consular services to ensure that they obtain legal representation.
They called on the Eswatini Commission on Human Rights and Public Administration, the African Commission on Human and Peoples' Rights, the International Committee of the Red Cross in Pretoria and other relevant international bodies to visit the five individuals to establish the facts surrounding their detention and their detention conditions.
Eswatini's acting government spokesperson, Thabile Mdluli, told Daily Maverick, 'We are not aware of the threats to block the transfer of deportees, but only about safety concerns, which we have adequately addressed.'
Responding to speculation in Eswatini that Prime Minister Dlamini had announced that his country would be receiving more deportees from the US, Mdluli said: 'He didn't say we would be receiving more, but the question was whether Eswatini would accept more deportees if the US were to advance a similar request in future, to which the PM said we would be open to receiving more, depending on capacity.'
Mdluli also denied speculation in Eswatini that the US had paid Eswatini $5.1-million to accept deportees. 'No, we are not paid anything by the US. The US government, however, caters for the welfare of the deportees, including repatriation costs.' DM