To say the times are tumultuous would be putting it very tamely indeed: unionists arrested, foreigners expelled, people missing, threats of torture. For those who missed it, the Swaziland Democracy Campaign protests (HERE), slated to kick off on 7 September, actually began on 6 September, with the preemptive arrests of about 50 unionists, resulting in expulstions from the country and lots of heat on both sides.
What is unclear at this stage is what law anyone was arrested under. Or is it naive to think the police acted under a law in this instance?
Either way, it is also unclear whether anyone challenged either the actions of the police or the laws that the arrests were brought under, by bringing a constitutional challenge to the High Court under s 16 the right to liberty.
Section 16 is one of the few provisions without claw-back clauses, or subsections which "claw out" the very meaning of the section itself. The rather long section reads as follows:
16. (1) A person shall not be deprived of personal liberty save as may be authorised by law in any of the following cases –
(a) in execution of the sentence or order of a court, whether established for Swaziland or another country, or of an international court or tribunal in respect of a conviction of a criminal offence;
(b) in execution of the order of a court punishing that person for contempt of that court or of another court or tribunal;
(c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law;
(d) for the purpose of bringing that person before a court in execution of the order of a court;
(e) upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence under the laws of Swaziland;
(f) in the case of a person who has not attained the age of eighteen years, for the purpose of the education, care or welfare of that person;
(g) for the purpose of preventing the spread of an infectious or contagious disease;
(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of the care or treatment of that person or the protection of the community;
(i) for the purpose of preventing the unlawful entry of that person into Swaziland, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Swaziland or for the purpose of restricting that person while being conveyed through Swaziland in the course of the extradition or removal of that person as a convicted prisoner from one country to another; or
(j) to such extent as may be necessary in the execution of a lawful order -
(i) requiring that person to remain within a specified area within Swaziland or prohibiting that person from being within such an area;
(ii) reasonably justifiable for the taking of proceedings against that person relating to the making of any such order; or
(iii) reasonably justifiable for restraining that person during any visit, which that person is permitted to make to any part of Swaziland in which, in consequence of that order, the presence of that person would otherwise be unlawful.
(2) A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which that person understands, of the reasons for the arrest or detention and of the right of that person to a legal representative chosen by that person.
(3) A person who is arrested or detained –
(a) for the purpose of bringing that person before a court in execution of the order of a court; or
(b) upon reasonable suspicion of that person having committed, or being about to commit, a criminal offence, shall, unless sooner released, be brought without undue delay before a court.
(4) Where a person arrested or detained pursuant to the provisions of subsection (3), is not brought before a court within forty-eight hours of the arrest or detention, the burden of proving that the provisions of subsection (3) have been complied with shall rest upon any person alleging that compliance.
(6) Where a person is arrested or detained -
(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the arrest or detention and place of the arrest or detention.
(b) the next-of-kin, legal representative and personal doctor of that person shall be allowed reasonable access and confidentiality to that person; and
(c) that person shall be allowed reasonable access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
(7) If a person is arrested or detained as mentioned in subsection (3)(b) then, without prejudice to any further proceedings that may be brought against that person, that person shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that that person appears at a later date for trial or for proceedings preliminary to trial.
(8) A person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.
(9) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person has spent in lawful custody in respect of that offence before the completion of the trial of that person shall be taken into account in imposing the term of imprisonment.
