Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Abolition of Forced Labour Convention, 1957 (No. 105) - Eswatini (Ratification: 1979)

Article 1(a) of the Convention. Sanctions involving compulsory labour imposed as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. 1. Public Order Act and Sedition and Subversive Activities Act. The Committee notes that several provisions of the national legislation provide for penalties of imprisonment, involving compulsory labour (pursuant to section 76 of the Correctional Services Act No. 13 of 2017), in circumstances that may fall under Article 1(a) of the Convention. It takes note more particularly of:

• –section 5 of the Sedition and Subversive Activities Act of 1938, as amended by Act No. 8 of 1983, on offences related to printing, publication, selling, distribution or possession of “seditious publication”, defined by section 3(1) of the Act as those which “may excite disaffection against the king” or which “bring into hatred and contempt” the king, his heirs or successors and “promote feelings of ill-will and hostility” between different groups of the population;
• –section 15(3)(g) of the Public Order Act, 2017 (Act No. 12 of 2017) on offences of defacement of national insignia or emblem defined in section 2 of the Act, such as the king’s image;
• –section 15(3)(h) of the Public Order Act on offences of incitement of hatred or contempt against “cultural and traditional heritage of the swazi nation”;
• –section 18(1) of the Public Order Act on offence of sabotage, defined as an act with intent to or knowing it to be likely that the act will impair the usefulness or efficiency or prevent or impede the working of any property used or intended to be used, including in the service of the king, the Government or a local authority; and
• –section 21 of the Public Order Act on offence of destruction of statutory documents and national flag or insignia, such as a representation of the king.

The Committee notes that, in a decision handed down on 16 September 2016, the High Court of Swaziland declared that the above-mentioned provisions of the Sedition and Subversive Activities Act were null and void or invalid, as a result of being inconsistent with Articles 23, 24 and 25 of the Constitution which protect freedom of conscience or religion, freedom of expression and freedom of assembly and association (Case No. 2180/2009). The Committee observes that these provisions of the Sedition and Subversive Activities Act do not appear to have been formally repealed or amended. In that regard, it notes that, as recently highlighted in the framework of the Universal Periodic Review (UPR), several United Nations bodies expressed concern about restrictions of the right of peaceful assembly and reports of attacks on journalists, political opponents, human rights defenders and trade unionists. It further notes that, in the framework of the UPR, a number of recommendations formulated by the UN Working Group and noted by Eswatini, referred to the amendment of the Public Order Act and the Sedition and Subversive Activities Act in order to fully protect the rights to freedom of expression and peaceful association and assembly, and allow all people to express their views without fear of reprisals (A/HRC/49/14, 7 January 2022, paragraph 118; A/HRC/49/14/Add.1, 3 March 2022, paragraph 2; A/HRC/WG.6/39/SWZ/2, 23 August 2021, paragraphs 16, 26, 28 and 29; and CCPR/C/SWZ/CO/1, 23 August 2017, paragraphs 44-45).

The Committee observes that the above-referred provisions of the Public Order Act and the Sedition and Subversive Activities Act provide for offences defined in terms broad enough to lend themselves to application as a means of punishment for peacefully expressing political views or views ideologically opposed to the established political social or economic system. In so far as they are enforceable with penal sanctions which involve compulsory labour, as this is the case in Eswatini, they may fall within the scope of the Convention. In that regard, the Committee recalls that under Article 1(a) of the Convention, persons who, without recourse to violence or incitement to violence, hold or express political views or views ideologically opposed to the established political, social or economic system must not be subject to penal sanctions that would require them to work, including compulsory prison labour (2012 General Survey on the fundamental Conventions, paragraph 302). The Committee requests the Government to review the above-mentioned provisions of the Public Order Act and the Sedition and Subversive Activities Act to ensure that, both in law and practice, persons who, without recourse to violence, express certain political views or views ideologically opposed to the established political, social or economic system are not subjected to compulsory labour, as a result of a conviction to a penalty of imprisonment. It requests the Government to provide information on any court rulings handed down on the basis of the above-mentioned provisions, with an indication of the acts giving rise to the convictions and the penalties imposed, in order to assess their scope and the way these legislative provisions are applied in practice.

2. Definition of terrorism. The Committee notes that the Suppression of Terrorism Act, 2008, provides for a substantial number of offences related to terrorism and establishes penalties of imprisonment for up to twenty-five years (sections 5 to 21 of the Act). The Committee notes the adoption of the Suppression of Terrorism (amendment) Act, 2017 (No.11 of 2017) which narrowed the definition of “terrorist act”. It notes however that, as recently highlighted in the framework of the UPR, the Human Rights Committee expressed concern about reports that counter-terrorism laws had been used to counter political opposition and social protests instead of addressing legitimate terrorism threats (A/HRC/WG.6/39/SWZ/2, paragraph 13; and CCPR/C/SWZ/CO/1, paragraph 36). The Committee requests the Government to provide information on the measures taken to ensure that the provisions of the Suppression of Terrorism Act are not used to impose penalties of imprisonment, which involve compulsory prison labour, on persons who peacefully express opposition to the established political, social or economic system. It further requests the Government to indicate how the Suppression of Terrorism Act is applied in practice, including by providing copies of any relevant court decisions defining or illustrating the scope of its provisions.

3. Communication of legislative texts. The Committee requests the Government to provide information on the legislation governing the medias as well as political parties.