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Mail & Guardian
08-05-2025
- Politics
- Mail & Guardian
eSwatini's 20 years of constitutionalism characterised by a crackdown on freedom of expression
Paramedics tend to a person injured by police during protests in Mbabane in 2021 as security forces cracked down on pro-democracy protests in Africa's last absolute monarchy. Photo: AFP Although the African Union has declared 2025 the year of reparations, justice for Africans and people of African descent through reparations, many remain shackled by colonial legal frameworks in the hands of post-colonial and post-independence Africa. The 2024 decision by the eSwatini The last absolute monarchy in Africa will mark the 20th anniversary of its Constitution in July 2025. Since the Constitution was promulgated in July 2005, it is concerning that the highest court would revitalise a colonial law that stifles free expression and erodes trust in democratic institutions. Freedom of expression is the cornerstone of all human rights because advocacy and governmental accountability depend on its protection. Since the emergence of human rights after World War II, freedom of expression has retained its status as one of the fundamental rights enshrined in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the Africa Charter. The African Commission on Human and Peoples' Rights ( ACHPR) adopted the Declaration of Principles on Freedom of Expression and Access to Information in conformity with Article 9 of the African Charter, highlighting the significance of this right. Sedition laws, Unfortunately, the eSwatini supreme court's ruling in Prime Minister of Eswatini and Another v Thulani Maseko and Six Others only worsens this alarming pattern. In reinstituting the crime of sedition, the court contributed to an environment where protestors, human rights defenders, political opposition, and activists' freedom of expression may be stifled through arbitrary arrests. These groups will be compelled to engage in self-censorship regarding any perceived criticism of the government. Even in a monarchy like eSwatini, sedition laws are untenable as they contradict the right to self-determination, violating Article 1(2) of the United Nations Charter. I disagree with the court's decision for three primary reasons: (1) The Sedition and Subversion Act is excessively vague and lacks specificity, as sedition encompasses multiple insult offences under one umbrella; (2) Terms such as 'disaffection' are subjective and emotive, which encourages prosecutorial abuse; and (3) Sedition establishes a multi-tiered free speech structure that affords greater protections to public officials, contravening Article 19 of the ICCPR. The respondents in the case were charged under the Sedition and Subversion Act (SSA) for various forms of criticism of the government, including making statements at a funeral, wearing T-shirts, and displaying a banner. Although none of the alleged activities resulted in violence or disorder, the court based its support for the Act on the necessity for violence or disorder to follow the 'seditious' utterances. The respondents presented two arguments against the Act: (1) the law violates freedom of expression and opinion as outlined in the eSwatini Constitution, and (2) the crime of sedition is excessively vague, overbroad and oppressive, warranting a declaration of unconstitutionality. These two legal arguments represent the typical reasons courts worldwide have invalidated sedition laws, so it is perplexing that the eSwatini court swiftly dismissed these arguments and instead drew upon other countries' jurisprudence to justify upholding the SSA. In its judgment, the court recognised that eSwatini's conception of sedition was derived from English common law and emphasised the necessity of the SSA, because eSwatini's terrorism statute did not address utterances that could engender disaffection towards the government. The court noted that England, the origin of sedition, had repealed its sedition law because its parliament incorporated similar language into its anti-terrorism legislation. Furthermore, the court reinforced its reintroduction of the SSA by highlighting eSwatini's status as a monarchy. But these justifications fail to address the arguments presented by the respondents, which, upon analysis, clearly indicate that the court's revival of the SSA contravenes international law and infringes upon the rights to free expression, opinion, and assembly as guaranteed by its Constitution. One of the respondents' arguments that any utterance could fall within the SSA is accurate, as speech that creates 'disaffection' is a subjective assessment that allows broad latitude for police officers' discretion to arrest any expression they perceive as critical. But, what constitutes criticism for one person may not be the same for another, leaving the SSA without justiciable standards that can be uniformly applied in each case. The respondent correctly asserted that the SSA undermines the core principle and fundamental right to free expression. Free expression serves multiple purposes, including fostering a marketplace of ideas, where expression relating to government, including criticism, holds the highest value. Another compelling argument made by respondents was that limiting the expression of views contrary to the government's ideals and aspirations leads to a 'docile citizenry' and hinders democratic values. This is true because democracies thrive on dissenting opinions. The respondents asserted that courts cannot objectively adjudicate words such as discontent, ill-will, disaffection and hostility because they are emotionally charged terms. Colonial-era sedition laws employing these terms create muddled jurisprudence that fails to clarify the types of speech that violate the law for citizens. The eSwatini government's crackdown on dissent through sedition laws grants unrestricted power for authorities to trample upon the rights they are meant to protect and advance for their citizens. Although the respondents did not explicitly state it, this argument underscores the fundamental importance of free expression for self-determination. The eSwatini supreme court found that the SSA was not void for vagueness. General Comment No 34 provides guidance on ICCPR's article 19(3), which allows for limitations on free expression. Limitations are only permissible as follows: '[w]hen a state party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.' The reinterpretation of the SSA in the judgment fails to elaborate on a direct and immediate connection between the content of the speech and the threat of violence or public disorder. This failure exposes a fatal flaw of sedition laws: they lack a specific nature of the threat, encompassing crimes like incitement, hate speech, true threats, criminal defamation and conspiracy to commit insurrection. Not only does this overbreadth of multiple expressions violate one law and fail the specificity requirement, but the vague emotional language of the crime creates a subjective problem of determining the threshold at which expression evolves from allowable dissent to advocating for violence. The courts must reconcile this problem by removing the words 'disaffection,' 'hatred' and 'contempt' and providing an imminence element resembling a 'clear and present danger' standard. Since their inception in England and proliferation through colonialism, sedition laws have established a multi-class structure for free expression rights. This is because the crime of seditious libel was created to suppress criticism of the British monarchy and public officials during times of social unrest. The recent rise of authoritarianism has ushered in a rollback of freedom of expression not witnessed in recent memory. According to the OHCHR, the general comments of the Human Rights Committee carry interpretive weight because the ICCPR is seen as a foundational document, akin to a Constitution, and the treaty body's interpretations fill the gaps left in the Covenant. Free expression is the paramount political freedom, meaning eSwatini must implement narrowly tailored restrictions. The Sedition and Subversion Act directly opposes this principle. The court should have clarified the definitional ambiguities, such as 'disaffection', intentionally included in sedition statutes like the SSA to suppress dissent and eliminate opposing opinions. The court's reinvigoration of the SSA violates the eSwatini Constitution and the ICCPR. Moreover, General Comment No 34 clearly states that laws creating special speech protections for monarchies, administrations, and government officials are impermissible, as those bodies and individuals expose themselves to criticism as custodians of government institutions. As eSwatini gears up for its 20th anniversary of constitutionalism, it must not justify the Sedition and Subversion Act based on its identity as a monarchy, as the right to self-determination under the UN Charter depends on the people's ability to speak critically or positively about their government without fear of reprisal. Melusi Simelane is the civic rights cluster lead at the .
Zawya
11-03-2025
- Politics
- Zawya
Seychelles: President Ramkalawan Welcomes Delegation from African Commission on Human and Peoples' Rights
President Wavel Ramkalawan received a delegation from the African Commission on Human and Peoples' Rights (ACHPR) at State House this morning. The delegation was led by Honourable Commissioner Solomon Ayele Dersso as part of a promotional mission to assess the state of human rights in Seychelles. In his opening remarks, President Ramkalawan warmly welcomed the delegation and praised the ACHPR's ongoing efforts in advancing human rights across the African continent. He reaffirmed Seychelles' unwavering commitment to the principles enshrined in the African Charter and reiterated the government's dedication to ensuring a dignified life for all Seychellois citizens. The delegation's visit aims to evaluate various aspects of human and peoples' rights in Seychelles. During the discussions, Honorable Solomon Ayele Dersso underscored several key areas of interest, including the prison riot of January 2025, the December 7th disaster, progress on the Truth, Reconciliation and National Unity Commission (TRNUC) report, the role of Parliament in upholding legislative duties, the state of freedom of expression, and initiatives surrounding the upcoming elections. Speaking to the press, Honourable Dersso emphasized that the delegation would engage with various stakeholders to gather critical data for their assessment. He commended Seychelles for implementing key social provisions, such as free education and healthcare with protective measures, describing them as exemplary models for other African nations. Additionally, he acknowledged the country's continued progress in strengthening democratic institutions. "The promotional mission of the African Commission on Human and Peoples' Rights involves firsthand engagement at the national level to gather direct information and understanding about the state of human rights in the country," he explained. "This encompasses freedom of expression, issues related to prison conditions, the social and economic wellbeing of people in Seychelles, and a wide range of other issues that affect human rights and peoples in Seychelles." The Commission's findings will be compiled into a comprehensive report, which will subsequently be released to the media. Honorable Dersso is expected to present preliminary observations during a press conference scheduled for March 14, 2025. Present at the meeting were the Minister for Foreign Affairs, Mr. Sylvestre Radegonde; Principal Secretary Ambassador Vivienne Fock-Tave; Director General for Regional Affairs, Mr. Christian Faure; Director for Regional Affairs, Mrs. Veronique Morel; and Legal Advisor at the Ministry of Foreign Affairs, Mrs. Sandra Michel. Distributed by APO Group on behalf of State House Seychelles.
Zawya
08-03-2025
- Politics
- Zawya
Statement By the Special Rapporteur on the Rights of Women in Africa on the Occasion of the International Women's Day
On this momentous occasion of International Women's Day 2025, the African Commission on Human and Peoples' Rights (ACHPR), through its Special Rapporteur on the Rights of Women in Africa (SRRWA), stands at a pivotal juncture in the global pursuit of gender equality and the empowerment of women and girls. This year's theme, 'For ALL Women and Girls: Rights. Equality. Empowerment,' resonates deeply as we commemorate the 30th anniversary of the Beijing Declaration and Platform for Action. This landmark framework has shaped the global agenda for women's rights and gender equality. The Beijing Declaration, adopted in 1995, was a clarion call to dismantle systemic barriers, challenge discriminatory norms, and ensure the full participation of women in all spheres of life. Three decades later, we celebrate progress, particularly in Africa, where women have broken barriers in politics, education, entrepreneurship, and leadership. Yet, we must also confront the stark realities that persist: gender-based violence, unequal access to education and healthcare, economic disparities, and the underrepresentation of women in decision-making spaces. Africa has witnessed remarkable strides in advancing the rights and empowerment of women and girls, demonstrating the continent's resilience and commitment to gender equality. Some of the most notable trends include: Increased Political Representation: Since adopting the Beijing Declaration in 1995, numerous African States have made remarkable strides in advancing women's political participation. Rwanda leads globally, with women occupying over 60% of parliamentary seats. Countries such as South Africa, Namibia, and Senegal have also achieved significant progress in promoting gender-balanced representation. Additionally, the appointment of female Heads of State across the continent has marked a transformative shift in political leadership. Notable examples include Ellen Johnson Sirleaf of Liberia, Africa's first elected female president; Sahle-Work Zewde of Ethiopia, who serves as the country's first female president; and Samia Suluhu Hassan of Tanzania, who became the nation's first female Head of State. Other inspiring leaders include Catherine Samba-Panza of the Central African Republic, interim president, and Ameenah Gurib-Fakim of Mauritius, the country's first female president. Most recently, Namibia appointed its first female Head of State, Netumbo Nandi-Ndaitwah, further underscoring the growing momentum toward gender equality in African politics. Advancements in Education: The gender gap in primary and secondary education is narrowing across the continent. Countries like Kenya, Ghana, and Botswana have achieved near parity in school enrolment, empowering girls with the tools to build brighter futures. Women's Economic Empowerment: African women are increasingly breaking barriers in entrepreneurship and leadership. Initiatives such as the African Women's Development Fund and the African Union's Women in Business program have supported women-led businesses, fostering economic growth and innovation. Legal Reforms: Many African countries have enacted progressive laws to protect women's rights, including laws against gender-based violence, child marriage, and workplace discrimination. Countries like Malawi, Tanzania, Zambia, Gambia, and Mali have raised the legal age of marriage to 18, safeguarding girls from early marriages. Grassroots Movements: Women-led movements and organizations are driving change at the community level. From the #MeToo movement in Nigeria to the fight against gender-based violence in South Africa, African women are raising their voices and demanding accountability. Despite these positive trends, significant challenges remain, hindering the full realization of gender equality and women's empowerment in Africa, including: Gender-Based Violence (GBV) and Harmful Traditional Practices: Despite the establishment of progressive legal frameworks, gender-based violence, and harmful traditional practices continue to plague societies, driven by deeply entrenched cultural norms, plural legal systems, and a lack of political will to enforce progressive laws. Child marriage remains widespread, perpetuating cycles of inequality and disempowerment. Similarly, GBV persists at alarming rates, manifesting in domestic violence, sexual assault, and harmful practices such as female genital mutilation (FGM). These challenges highlight the urgent need for stronger implementation of existing laws and a transformative shift in societal attitudes to eradicate these violations and protect the rights and dignity of women and girls. Humanitarian crises, such as climate change and conflicts, have further exacerbated these challenges, highlighting the urgent need for stronger protections and support systems. Economic Inequality: Women continue to face barriers to economic participation, including limited access to land, credit, and technology. The informal sector, where many African women work, often lacks social protections and fair wages. Health Disparities: Maternal mortality rates remain unacceptably high in some regions, and access to sexual and reproductive health services is often limited. Teenage pregnancy and HIV/AIDS disproportionately affect women and girls. Underrepresentation in Leadership: While progress has been made, women remain underrepresented in political and corporate leadership roles. Cultural and institutional barriers often prevent women from ascending to decision-making positions. Conflict and Displacement: Women and girls in conflict-affected regions face heightened risks of violence, exploitation, and displacement. The ongoing crises in parts of the Sahel, the Horn of Africa, and the Great Lakes region underscore the need for gender-sensitive peacebuilding and humanitarian responses. Intersectional Discrimination: Marginalized groups of women, including those with disabilities, older women, and rural women, face compounded discrimination and exclusion from opportunities. To build on the progress and address persistent challenges, the ACHPR urges African governments, civil society, the private sector, and international partners to accelerate the implementation of the Beijing Platform for Action and Agenda 2063. This can be achieved through aligning national policies with these frameworks and ensuring gender equality is mainstreamed across all sectors. The ACHPR calls for the strengthening of legal frameworks, enhanced access to justice for survivors, and increased investment in prevention programs to eradicate gender-based violence in all its forms. It further emphasizes the need to expand women entrepreneurs' access to finance, land, and technology and ensure equal pay for equal work to close the gender wage gap. Affirmative action measures, such as quotas, should be implemented to increase the representation of women in political and leadership roles at all levels. The ACHPR also urges prioritizing girls' education, particularly in STEM fields, and ensuring universal access to sexual and reproductive health services. Finally, the ACHPR calls for the recognition and addressing of the unique challenges faced by marginalized groups of women, including those with disabilities, rural women, and refugees. As we celebrate the resilience and achievements of African women and girls, let us remember that the fight for gender equality is far from over. The Beijing Declaration and Platform for Action, alongside Agenda 2063, provide a roadmap to a future where every woman and girl can live with dignity, freedom, and opportunity. On this International Women's Day, let us recommit to the principles of rights, equality, and empowerment—not just for some, but for ALL women and girls. Honourable Commissioner Janet Ramatoulie Sallah-Njie Special Rapporteur on the Rights of Women in Africa of the ACHPR and Vice-Chairperson of the ACHPR Distributed by APO Group on behalf of African Commission on Human and People's Rights (ACHPR).
Al Jazeera
21-02-2025
- Politics
- Al Jazeera
African Union is in desperate need of a new beginning
On February 15, during the 38th summit of the African Union (AU) held in Addis Ababa, Ethiopia, African leaders elected Mahmoud Ali Youssouf, the foreign minister of Djibouti, as the new chairperson of the African Union Commission (AUC), the executive branch of the continental body. He prevailed over Raila Odinga, the former prime minister of Kenya, and Richard Randriamandrato, Madagascar's former minister of foreign affairs. Youssouf has been Djibouti's foreign minister since 2005 and takes over from Moussa Faki Mahamat, the former prime minister of Chad, who has served two consecutive four-year terms as the leader of the AUC. In his official manifesto, he has committed to advancing governance and democracy, strengthening institutional capacity, and fostering peace and security, among other goals. Youssouf assumes office at a precarious time in Africa and is expected to leverage his diplomatic expertise especially to address the conflicts raging in Sudan and the Democratic Republic of the Congo (DRC). Youssouf appears poised to champion peace and work for substantial positive changes in countries across the continent in the coming years. But his success is less than guaranteed, as African leaders are generally hesitant to relinquish significant power to the AU and its affiliated organisations. The African Court on Human and Peoples' Rights (ACHPR) released a report in March 2022, which revealed that as of July 2021, just 7 percent of its judgements had been fully complied with, 18 percent had been partially complied with, and a substantial 75 percent had not been complied with at all. Additionally, the report mentioned that several African countries have made it clear to the Executive Council that they will not adhere to the Court's decisions. Perhaps this explains why last year's ACHPR report omitted these statistics. Most African leaders resist the imposition of rigorous external oversight measures – critical interventions that their countries sorely need to prevent war and instability. Hence, it is less than certain what Youssouf might accomplish in the next four years. The successes and failures of his predecessor, Moussa Faki Mahamat, may offer some clues as to what the new AUC chair could expect to achieve in the coming period. At a ceremony to mark the official start of his term on March 14, 2017, Mahamat was oozing with confidence. He had pledged to 'make the Commission a tool capable of translating into reality the vision of our leaders and the aspirations of our peoples', and 'to silence the guns and realise an Africa free of conflicts by 2020'. Eight years later, his administration's performance has been marked by a combination of limited accomplishments and many unresolved challenges. Mahamat was instrumental in the mediation of the Cessation of Hostilities Agreement (CoHA), a landmark peace treaty signed between the Ethiopian government and the Tigray People's Liberation Front (TPLF) on November 2, 2022, in Pretoria, South Africa. This accord brought an end to the devastating 2020-2022 Tigray war. Despite this crucial achievement, however, he was unable to 'silence the guns' in the conflicts in Chad, Mali, Burkina Faso, Somalia and Mozambique – although it was not for lack of effort. In his address to the 37th Ordinary Session of the Assembly of the African Union on February 17, 2024, Mahamat voiced his profound frustration with the illiberal actions of African leaders, who he chose not to name, seemingly in a spirited attempt to rationalise his various failures. He pointed to the ongoing conflicts on the continent, the resurgence of military coups in Central and West Africa, and the overwhelming unwillingness of certain AU member states to conduct elections that are regarded as credible. On the latter, he rightly said, 'Instead of being joyful modes of peaceful transfer or maintenance of power, elections have become, through the extent of their irregularities, factors for deepening crises.' At the same time, he emphasised that many African leaders have largely ignored the African Peace and Security Architecture (APSA), the AU's blueprint for conflict prevention, management, and resolution, and its counterpart, the African Governance Architecture (AGA). The purpose of the AGA is to foster and defend human and people's rights, enhance democratic institutions and culture, and guarantee good governance and the rule of law. Mahamat also bemoaned the fact that institutional reforms within the continental union have not effectively tackled the issues related to the powers of the AUC and its chairperson. 'Although the Chairperson of the Commission is recognised in the texts as the Legal Representative and 'Chief Accounting Officer' of the organisation, he is paradoxically deprived of sufficient margin of manoeuvre to act urgently on strategic questions.' Then, he offered a sharp critique of African leaders, alleging they possess 'the frantic tendency to make decisions without real political will to implement them'. This has resulted in the woeful and unworkable scenario where, according to Mahamat, 93 percent of decisions made in 2021, 2022, and 2023 were not acted on. Such systematic defiance, he added, is noticeable at both the level of member states and regional communities, with member states often disregarding and carelessly violating the resolutions established by continental bodies. Alarmingly, he warned that without transformative changes, the organisation would be unable to effectively respond to the sociopolitical challenges present on the continent. African leaders are, without a doubt, a significant barrier to the sociopolitical and economic advancement of the continent. They take pleasure in witnessing the AU develop into a consciously weakened entity that primarily caters to their self-centred, unscrupulous aims. It is therefore imperative that Youssouf, in his role as Mahamat's successor, be granted ample independent authority and resources to enforce strict compliance with the organisation's conventions, particularly with respect to APSA and AGA. Without that, he may sadly be as powerless to resolve the continent's most pressing problems as his predecessor. In 2002, the AU introduced the African Peer Review Mechanism (APRM) to allow member states to voluntarily evaluate their governance practices. However, its effect has been minimal. Given the ongoing conflicts and inadequate governance that persist across the continent each year, Africa clearly requires a comprehensive regulatory framework for yearly and impromptu national assessments. Consider the situation in Sudan. For three decades, the AU turned a blind eye to the unlawful, autocratic and deeply inhumane actions of President Omar al-Bashir's regime – actions that slowly paved the way for the coup of April 11, 2019. The removal of al-Bashir in the coup subsequently set the stage for another military takeover on October 25, 2021, and the present civil war. AU inaction and inability to impose good governance set the scene for similar failings in Mozambique. The ruling Frelimo party's profound inability to establish an inclusive democracy, ensure economic stability, and deliver fundamental services has made the gas-rich province of Cabo Delgado fertile ground for insurrection. Beginning in October 2017, an armed rebellion in the province has led to the displacement of more than 1.3 million people, compromised the healthcare infrastructure, and resulted in a critical humanitarian crisis. The AU and its various bodies did little more than watch these tragedies unfold. Indeed, in both scenarios, the AU had the opportunity to implement decisive and timely governance interventions to advance peace, stability, and socioeconomic well-being. It didn't, or, more accurately, it couldn't. Unfortunately, Addis Ababa has historically been stripped of the requisite authority to analyse and respond to bad leadership. Mozambique and Sudan are just two examples among many. The AU has also been unable to deal with the plight of political prisoners in Eritrea, democratic backsliding in Tunisia, and the years-long brutal repression of opposition leaders in Uganda, to name but a few. Given the persistent disdain for essential AU protocols that prompts unrest across the continent, it is crucial that the new chair of the AUC does not take on a passive stance in the coming four years. His office must be endowed with the unequivocal power to hold African leaders accountable for their political excesses and failings. Youssouf can forge a legacy of peace and socioeconomic transformation in his new role, but first he must get the AU to start working in the best interests of its primary stakeholders: Africa's 1.5 billion people.
