In an extraordinary judgment, the highest court in Eswatini has come out strongly supporting human rights and against the kingdom’s police chief. The stance taken by the supreme court in this decision is almost unheard of in that country, particularly in the way that it outlines constitutional principles that must rule in democratic states.
This is a judgment for the record books: Eswatini’s highest court has come out in favour of human rights and against the established order in that kingdom. All most unusual in a state whose human rights credentials, even in the courts, are constantly questioned.
The case is an appeal by the Royal Eswatini Police Service staff association (REPOSA) against a decision of the high court in 2022. The high court found in favour of Eswatini’s national commissioner of police, the commission of correctional services and the attorney general. And that earlier court judgment is typical of what observers might have expected in its approach.
The supreme court decision, however, delivered with commendable speed on 29 November, can only be described a milestone.
Circular’s promises never materialised
The dispute between the two sides has its origins in a circular, issued by the ministry of public service in 2014. At the time it was said that the circular was at least in part intended to improve the lives and welfare of members of the Royal Eswatini Police Service by increasing their salaries. But what happened in fact was something different.
It was to be implemented in two phases. The first would affect senior officers and it was immediately put in place. Phase two, affecting the more junior members, has never been implemented, even after ten years.
As the supreme court put it, ‘government reneged from its legal obligations as contained in the circular, after awarding senior officers lofty salaries.’ Of course, this led to ill feeling between the junior and senior officers, and, as the supreme court wrote, by failing to live up to its promises and creating that ill-will, the action of non-implementation ‘was itself a threat to national security’.
Peaceful march by junior officers
The junior officers were vulnerable, but their seniors were insulated in every way. And when the junior staff wanted their share of the money promised in the circular, the commissioner of police used his disciplinary powers to challenge the way the juniors went about expressing their complaints, namely presenting their grievances through a petition, delivered after a completely peaceful march, to the Prime Minister, their line officer. The Prime Minister’s office received their petition most cordially, and agreed to deal with their problem.
However, the police commissioner took action against REPOSA, saying they weren’t allowed to have held the demonstration, and REPOSA’s members couldn’t have meetings to discuss the disputed circular.
He said they were not allowed to have a second, follow-up march, and charged 21 REPOSA members for not obeying his order. Further, an arrest warrant was issued for the secretary general of REPOSA and she was told to give reasons why she shouldn’t be suspended for participating in REPOSA’s activities.
Justices query allegations that the march disturbed the peace
While the high court effectively approved the commissioner’s approach, the supreme court had different views. Clearly, the commissioner has wide statutory powers, said the five supreme court justices in their unanimous decision. But had he exercised them ‘lawfully and within the spirit for which the powers were given’?
Were the actions of the commissioner reasonable and rational and justified in a democratic society, the court asked, adding that it was difficult for the court to understand how the peace was disturbed ‘if junior officers peacefully ask for the money promised them by government in 2014.’
‘It is further difficult to fathom how peace is disturbed if junior officers meet during their off-duty time to peacefully discuss welfare issues emanating from the circular, lawfully issued by government for the benefit of these officers.’
‘It is also difficult to understand what is wrong with delivering a petition with a list of grievances to their Minister, especially where the powers that be have failed to establish a working commission as required by law and also where the current government negotiation structures have no seat for the junior officers.’
Commissioner’s actions ‘fall short of what is expected in a democratic society’
Ironically, given the current state of human rights in Uganda, the supreme court of Eswatini quotes a decision of Uganda’s constitutional court in 2004, stressing that where human rights provisions conflict with other provisions of the constitution, ‘human rights provisions take precedence, and interpretation should favour enjoyment of the human rights and freedoms.’
In the REPOSA case, ‘there was no iota of violence or pending violence or likelihood of destruction of property or riotous assembly, but instead the junior officers were welcomed by the under-secretary at the cabinet offices.’
‘Again, the holding of a meeting to discuss terms of employment cannot be a danger to national security. The commissioner (gave no reasons) for his actions except a display that he had powers to do what he did.’
Without justification, declared the court, ‘his actions fall short of what is expected in a democratic society.’
‘It is common knowledge that laws can be abused by those entrusted with their implementation or their custody, hence the need for the courts to test them for legality and proper use for the purpose they were given.’
Government ‘did not act in good faith’
And then there’s this:
‘In the present case … the government did not act in good faith when it reneged on the terms of the circular to pay the junior officers and instead set the commissioner of police on the junior officers.’
The commissioner ‘banned them from holding bread and butter meetings and booked them for discipline for delivering a list of their grievances to the Prime Minister, their line minister.’ The commissioner ‘misconstrued the powers conferred on him as such powers did not give him authority to take away what the constitution had given.’
The constitution clearly gave the right to freely assemble and associate with others while the law established REPOSA and gave it the right to make representations to relevant government negotiation structures on matters including salaries and conditions of service.
‘This is a right given by parliament to the junior officers and which must be exercised by them without interference … from the commissioner of police.’
Was commissioner’s order lawful in the first place?
As for ‘disciplinary law’, quoted by the commissioner to justify his actions, the real question was whether the order he issued was lawful in the first place. How was it lawful for the commissioner to take away a right given to the junior officer by the constitution and the law?
Perhaps those rights might be taken away if national security were threatened. But the commissioner didn’t offer any national security justification for his decision.
‘Would national security have been threatened by a few unarmed officers who were also off-duty when (most) officers who were armed or had easy access to arms were on-duty … ensuring that Emaswati were comfortably safe and peacefully doing their day to day activities.
Acted beyond his powers, orders therefore unlawful
Absent national security concerns, the commissioner acted beyond his powers. The orders he issued were unlawful and they, and any consequences flowing from them, were a nullity.
It was a common law presumption in democratic jurisdiction that parliament does not intend, when passing laws ‘to interfere with fundamental rights, freedoms and immunities.’ And if it ever did so, it had to use ‘clear unambiguous wording’.
‘This was a peaceful march with one sole purpose: to deliver a petition to their minister.’
There was no evidence put up by government that the officers were rowdy, shouting or otherwise disturbing the peace. ‘All agree it was a peaceful march or walk.’
Further, in a democratic society it was ‘legitimate’ for REPOSA, ‘or any one else for that matter’ to meet with the prime minister to ask for help.
Not an offence to hand over a list of grievances
It was not an offence to present a list of grievances to one’s superiors, ‘but a legitimate and lawful act which does not, in a democratic society, attract sanctions or disciplinary action.’
The grievance letter had to reach the Prime Minister, and had to be delivered to him by the authors of the list, in this case REPOSA members. ‘There is nothing unlawful in all this. No reasonable person would wish to discipline another for doing a lawful act.’
REPOSA members were welcomed when they delivered the petition and were promised that there would be action. But when, a week later, REPOSA tried to get follow up, the police commissioner ordered them not to go and threatened disciplinary action against them. This was a ‘classic case of interference’ in the offices of the staff association, and the commissioner was not to continue with any of the intended disciplinary action against the members of REPOSA arising from the non-implementation of the circular.
This was ‘a peaceful march from one point to another to deliver a lawful petition’.
Court orders government to honour commitment to junior officers
Finally, the five justices held that the high court order had to be overturned, the threatened disciplinary action against REPOSA members was unlawful and was not to proceed and finally, the disputed circular was declared to be binding on the government and it was directed to comply with it and honour its commitments to the junior officers within a ‘reasonable time’.
As a final aside here, when so many people have been made a promise by government, perhaps 10 years could be considered a ‘reasonable time’ to take action – even for Eswatini?