SOME PARENTS WANT UNREST ARRESTS OF PUPILS SET ASIDE

MBABANE - Parents of pupils and minors who were arrested and convicted during the political unrest in the country, as well as SNAT, want the High Court to set aside the arrests.

According to a report that was compiled by the Commission on Human Rights and Public Administration/ Integrity,  during the political unrest in the country, a total of 44 young people were arrested  and they consisted of 13 children (0-18 years); 31 young persons (19-24). Some of the parents who are applicants in the matter are George Tubalibi Vilakati, Zwelithini Selby Simelane, Happiness Nonjabulo Myeni, Phineas Mzilase Sambo and the Swaziland National Association of Teachers (SNAT). In their application, the parents averred that the arrests and convictions of the minors were irregular. It was further their contention that the procedure that was taken by the police in effecting the arrests, which led to some convictions, was wrong in view of the Children’s Protection and Welfare Act No.6 of 2012. Respondents in the matter are the national commissioner (NATCOM) of police, deputy prime minister (DPM), the director of public prosecutions (DPP), the Commission on Human Rights and Public Administration/ Integrity and the attorney general (AG).

Protests

The parents submitted that it was common cause that around June 2021, the Kingdom of Eswatini experienced unprecedented mass protests action, the result of which, inter alia, was mass murder of people allegedly by security forces, looting of goods and burning of infrastructure.  The applicants (parents) narrated to the court that, following the said events, a number of people were arrested and most of them were charged for contravening certain provisions of the Public Order Act No.12 of 2017.  They brought it to the attention of the court that their children were arrested and detained in various detention centres. According to the applicants, when effecting the arrests, the police allegedly failed to comply with the provisions of the Children’s Protection and Welfare Act No.6 of 2021, in that there were no assessments of the children as envisaged by Section 80 and 81 of the Act. Section 80 of the Act provides that an assessment is effected by a social worker and may take place at the magistrates court, the office of the Department of Social Welfare, a private house, police station or any other suitable place identified by the social worker concerned. 

The purpose of the assessment, according to the Act, is to among other things, establish the probable age of the child, establish the prospects of the child being able to be diverted by a social worker, provide information to support recommendations to the prosecutor and the inquiry magistrate regarding the release of the child into the care of a parent or guardian or placement in place of safety. In case of children below the minimum age of prosecutions, the assessment is meant to establish what measures, if any, need to be taken. The Act continues to stipulate that if a police officer is uncertain about the exact age of a person suspected of having committed an offence, but has no reason to believe that the age of that person would render that person subject to prosecutions under the Act, he shall take such person to a social worker for assessment into the age within periods prescribed under or, if a social worker is not readily available, to a medical officer. “We humbly submit further that on their first appearance, their rights were not explained to them as the court mero muto (on its own accord) remanded them in custody.

Detention

“This was tantamount to detention without trial. Eventually they were released on bail and some have since been convicted,” submitted the applicants. It was also their argument that this again made the procedure of the trials following the unlawful arrests a sham and, therefore, any subsequent orders or findings were liable to be set aside or reviewed. “It is our submission that the arrests, detention and subsequent hearings were constitutionally void in that it affronted the constitutionally guaranteed and protected right to a fair hearing in terms of Section 21 of the Constitution,” argued the parents. They went on to tell the court that the respondents allegedly failed to protect their children as envisaged in Section 29 of the Constitution.  
Part of the aforementioned section states that, a child shall not be subjected to abuse or torture or other cruel inhumane and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.

The application submitted that while children could still be arrested and detained, the correct procedure ought to be followed in view of the rights of the children. According to the applicants in this case, procedure was allegedly flouted. “We have been advised and verily believe that the purpose of the arrest according to the law is for the child to be brought before a preliminary inquiry. It is our submission that there was no preliminary inquiry and no social assessment done by the social worker, neither were parents or guardians present during such assessment,” alleged the aggrieved parents. In their application, the parents also highlighted to the court that during their children’s first appearance before magistrates, the presiding officers allegedly failed to make such preliminary enquiries.

Failed

The applicants alleged that the court failed to take into account the fact that once a minor was accused of being in conflict with the law and was presented before the court, it (court) took characteristics of being a Children’s Court. Some of the parents who are applicants in the matter are those of the five pupils who were charged for allegedly contravening the Suppression of Terrorism Act of 2008. They were among other charges alleged to have encouraged pupils to riot at Shewula. They also stand accused of having had a hand in the burning of Shewula Police Post.

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