POCA COULD BE UNCONSTITUTIONAL

MBABANE – Are certain provisions of the Prevention of Organised Crime Act of 2018 unconstitutional?

The question emanates from the fact Parliament passed a law that now gives the police and director of public prosecutions powers to arrest and charge suspects for offences that allegedly occurred before the commencement of this piece of legislation. Known as POCA, the law is being used to arrest suspects understood to have acquired property through dagga trade - even property obtained before the legislation came to effect. Put it differently, the law was passed in 2018, but it can be used to deal with people who bought property 10 years before its enactment. Section 2 of POCA (interpretations) provides that proceeds of unlawful activities mean any property or any service, advantage, benefit or reward that was derived, received or retained, directly or indirectly in Eswatini or elsewhere at any time before or after the commencement of this Act.

On the other hand, Section 119 (1) of the Constitution of the Kingdom of Eswatini states explicitly that Parliament or any other authority or person has no power to pass any law – (b) which operates retroactively.  Retroactive means “taking effect from a date in the past.” In short, it means backdating or applying the law backwards. The above quoted Section 119 reads in full ;:“( Therefore, what does the Constitution say about subordinate laws that are inconsistent with it? To answer that, Section 2 (1) of the Constitution enlightens the nation: “This Constitution is the supreme law of Swaziland (Eswatini) and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. “What does void mean? The law dictionary defines it as “not valid or legally binding.”

It must be said that the exception provided in sections 199 to 205 of the Constitution may not apply to the benefit of the State as these provisions address issues related to monies to be withdrawn from the Consolidated Fund at the Central Bank of Eswatini and procedure to be followed in enacting the Appropriation Act. Research by the Times SUNDAY, which did not focus on cases pending before court, found that law schools across the globe and constitutions of some countries, mainly the United States, make it clear that ex post facto laws are illegal, and a total violation of human rights.  Ex post facto refers to a criminal statute that punishes actions retroactively (retrospectively), thereby criminalising conduct that wasn’t punishable by law when originally performed. In short, legal experts define it as applying the law backwards, something which veteran lawyers in the country condemned as unfair to the suspects and an obvious breakdown in the rule of law.

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