[Preliminary draft. Case might change. Final version will be published by December 31, 2016.]

Facts – Thulani Maseko was arrested and charged with “uttering words with a seditious intention” after speaking at a May Day Celebration in May 2009. During the May Day celebration parade, Mr. Maseko stated the bridge he was on should be named after two Swaziland martyrs.

Issue – Are the defendant’s charges under the laws of Swaziland compliant with international incitement law standards?

Rule – Under the Universal Standard of the ICCPR, incitement laws must pass the scrutiny of a six-prong test. The first prong requires legality of the law – the charges must be formalized by law, and the law must be sufficiently precise. The second prong requires legitimate grounds for the incitement charge. Legitimate grounds include protecting the rights of others, national security, public order, public health, or morals. The third prong requires necessity – the restrictive measures must be necessary for a legitimate purpose, and must be the only way to achieve protection. The fourth prong requires proportionality – the restriction on expression should not be overbroad. It must also be the least intrusive instrument among those that might achieve the protective function, and be proportionate to the interest being protected. The fifth prong requires the existence of intent, specifically, the intent to incite discrimination, hostility, or violence. The sixth prong requires causation between the expression and threat.

Analysis –  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.

First prong - The law in question is formalized by law, but it is very imprecise and vague. There is no definition of conduct that "brings into hatred or contempt or to excite dissatisfaction”. This gives the government significant discretion to charge individual within the confines of the Sedition and Subversive Activities Act. In the case of Mr. Maseko, his statement that the bridge should be renamed after two martyrs,  was sufficient to be considered an act of “hatred or contempt or to excite dissatisfaction”.  Because the law is imprecise and open to several different interpretations, it does not comply with the first prong.

Second Prong—The law does not meet the second prong of the international standard.  The only conceivable ground for the promulgation of this law is to protect the government from those wishing to exercise their free speech in a manner that the government disagrees with.  Protecting the government against “disaffection” is not a legitimate ground. This prong fails.  

Third Prong-The Act fails to meet the third prong.  The restrictive measures are not put in place for a legitimate purpose. The primary purpose of this law is to protect the King of Swaziland and the government from comments that may be considered offensive. Because there wasn’t a legitimate purpose behind the law, this prong fails.

Fourth prong--The law is overbroad and imprecise. The Sedition and Subversive Activities Act does not define conduct that would bring dissatisfaction to the government. This gives the government broad authority to select which actions they perceive to be contrary to the interests of the country. This makes the law overbroad. In the case of Mr. Maseko, his comments were considered to be sufficient for him to be charged under the Act, and he faced up to 20 years imprisonment. The harsh punishment is intrusive to personal freedom and disproportionate to the interest protected. The Sedition and Subversive Activities Act, fails to meet the fourth prong of the international standard.

Fifth--The law does not specify an intent requirement, and therefore fails on this prong.

Sixth Prong--The law requires that the statement must lead to dissatisfaction against the government. As applied, in the Maseko case, the Act does not comply with the international standard. Mr. Maseko’s comments advocating for the renaming of a bridge, are comments that cannot be considered to cause dissatisfaction against the government.

Conclusion— The fact that the Swaziland law does not comply with the six-prong test analyzed above renders Swaziland as non-compliant with the universal standard of defamation.