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BACEDE, MTHANDENI HAVE CASE TO ANSWER – CROWN

31/05/2022 08:47:00 Kwanele Dlamini

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MBABANE – The Crown says Hosea and Ngwempisi MPs Mduduzi Bacede Mabuza and Mthandeni Dube have a case to answer.

This, the Crown said in opposition to the application filed by the incarcerated Members of Parliament (MPs), who want to be acquitted and discharged for alleged failure by the State to prove its case against them. The MPs’ application was filed in terms of Section 174 (4) of the Constitution. This section provides that, if at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit and discharge him.
In the heads of argument in opposition to the MPs’ Section 174 (4) application, the Crown alleged that Mabuza, Dube and former Siphofaneni MP Mduduzi ‘Gawuzela’ Simelane, who is at large, encouraged members of the public to riot against the government of the day.

In the first count, where they are charged under the Prevention of Terrorism Act, and alternatively accused of sedition, MP Mabuza and Simelane actively encouraged the people of Eswatini to disobey a government order by encouraging the delivery of petitions. This, according to the Crown, resulted in, among other things, serious damage to property and endangered the lives of various people. The MPs, according to the Crown, acted in common purpose when committing the alleged offences. The evidence of post-banning (of delivery of petitions) order violence and unrest bore testimony to the alleged encouragement of the public to disobey government, said the Crown.

“Objectively viewed, the inference that accused one (Mabuza) and accused two (Dube) encouraged people to disobey the banning order is irresistible and hence that the accused sought the continuation of the petition delivery is inescapable,” reads the Crown’s papers. The Crown based the submission on extracts from the videos that were played in court when it presented its case before Judge Mumcy Dlamini. The extracts included “...he doesn’t have that power that he says he has, let me say this Swazis, this that you do, delivering petition it is constitutional and it is the right of Swazis.

“It is the Constitution, no one can have the power to tell you to stop, no one has the power to tell you to stop. The only way he can do so is to deploy the police as he always does. But he cannot stop you, he cannot make you to be stopped from exercising your right that is in the Constitution...” This, according to the Crown, meant in other words that what the Deputy Prime Minister, Themba Masuku, who was the Acting Prime Minister when the delivery of petitions at tinkhundla centres was banned by government, had done was unlawful and he had no right ‘hence you do not have to obey and thus continue with the petitions delivery’.

Protesting

The other extract that the Crown highlighted was “... protesting is a constitutional right, you are expressing your oppression and grievances. Delivering a petition is constitutional right. You are submitting your grievance where you sent your member of parliament and there is nobody constitutionally who has a right to control you.” These are some of the extracts that the Crown say proved that the MPs encouraged the public to riot. Another one reads; “We will never entertain what the government has said today. And I say those who are with us should not entertain that. We are calling for change.

“We did not request permission from government to deliver petitions. You cannot stop something you have not launched, you cannot come and say you are stopping petitions...” According to government; “The message is unmistakable. It is a clear exhortation to continue with petition delivery, contrary to a specific government banning order, which the accused reassure the people is unlawful.”

Mabuza, according to the Crown, was clearly referring to the banning of the delivery of petitions. “The rest of the House rose according to you petitions. So do not allow that today someone tries to disrupt you...,” reads the Crown’s papers. “I am saying, do not be intimidated. This that has been done by the Honourable DPM is not constitutional and unlawful.”
The Crown said the message by MP Mabuza could not be clearer, including that the MP had allegedly invited members of the public to go out to the streets, protest and deliver petitions.

Former MP Simelane is alleged to have informed members of the public that the then acting prime minister was testing how much the people meant regarding the call for political change.
“He is just testing how serious the masses are on the call for change. He is testing and shaking the pillars, to see if we really mean it. I just want to make it clear, when I check everything, he is just testing whether we are serious or not.” The message by former MP Simelane, according to the Crown, was equally blunt; do not obey the banning order.

It also told the court that it was a thinly-veiled threat by MP Mabuza that ‘we are not begging, we are not pleading, we are telling you, we are ready for everything but what we can tell you is that we shall have the final say, you like it nor not’. The Crown further informed the court that the prime minister was responsible for, among other things, State and internal security. The prime minister, the court was told, was well equipped and authorised to deal with internal strife in Eswatini. “While the Constitution does provide for freedom of expression and freedom of movement, equally, where there is interests of defence, public safety and public order are threatened, the application of the relevant laws to combat such will not be inconsistent with the said sections (Section 24 and 25) of the Constitution,” submitted the Crown. “It follows that the deputy prime minister was not obliged to act in terms of the COVID-19 regulations, nor the Disaster Management Act, but was empowered by his office to ban petitions delivery, as it threatened national security.”