TERRORISM, UNREST-RELATED CASES: LAWYERS FEAR TO REPRESENT SUSPECTS

MBABANE - Due to threats and the fear of the unknown, a majority of attorneys are afraid to represent people who are accused of terrorism and unrest-related charges.

The situation has left most of the accused persons charged under the Suppression of Terrorism Act without legal representation. This was evident during the first and second court appearance of the member of Swazis First Democratic Front (SFDF), Sibusiso Nxumalo, and his co-accused, Muzi Mnisi, at the High Court.
The duo faces 38 charges under the Suppression of Terrorism Act. They appeared without legal representation during their first and second remand hearings. When their right to legal representation was explained to them, they informed the court that they were appearing in person as they were unable to secure the services of an attorney.

Established

It was later established that efforts by leaders of the political parties they were allegedly affiliated to reportedly failed to get them legal representation. Judge Nkosinathi Maseko advised the pair about the importance of legal representation. This was because all the attorneys the leaders of the political parties contacted on the accused persons’ behalf were said to have informed them that they were not comfortable with representing them.  

The situation played itself out even yesterday when Musa Clement Kunene and Msindiso Ntshalintshali appeared at the High Court for a remand hearing. The duo was arrested on November 8, 2022 at Mbhuleni, Matsapha. They were allegedly found in possession of explosives, among other items, and were charged under the Suppression of Terrorism Act. During their first appearance in court, they were represented by Human Rights Lawyer Maxwell Nkambule.

Notified

Kunene and Ntshalintshali will now appear in court to be notified of the date of the commencement of their criminal trial instead of making periodic remand appearances. They appeared before Judge Nkosinathi Maseko.
Also appearing before Judge Maseko yesterday was Sibongiseni Hoshoba Shongwe, who was arrested for allegedly burning the Ngudzeni Inkhundla on June 30, 2021. The damage to the inkhundla was estimated at E2 234 000.
Shongwe allegedly committed the offence together with Bongani Goodman Mamba, Bongumusa Kenneth Kunene who were arrested in April 2022. Shongwe was arrested at a later stage and the investigator told the court that he attempted to flee after the offence was committed.

Shongwe appeared without a legal representative yesterday for his remand hearing. He will be back in court next Thursday and he is to be co-joined with his co-accused. During his first appearance, Shongwe was also represented by Human Rights Lawyer Nkambule but the attorney was not present yesterday. Attorneys who are willing to represent some of the accused persons charged for committing terrorist activities have since officially lodged complaints with the Law Society of Eswatini. The attorneys alleged that they were receiving threats from unknown people who allegedly told them that if they continued representing the accused persons, they were putting their lives in danger and should consider withdrawing from these matters.

Movements

One of the attorneys alleged that he was tailed by unknown people who monitored his movements. Some of the lawyers said they were being threatened with being executed in the same manner that the late Human Rights Lawyer Thulani Maseko was killed. Maseko died after being shot by an unknown individual(s) on January 21, 2023 at his homestead at KaLuhleko. The human rights lawyer was watching television with his wife and children when he was shot in the head and chest.

Another lawyer who survived a shooting incident is Human Rights Lawyer Nkambule, who was representing almost all the persons accused of committing acts of terrorism. Nkambule’s vehicle was shot at while he was returning from Big Bend, where he had gone to consult with some of his clients. In an interview Nkambule conducted with this publication after the shooting, he said he was undeterred and would continue representing his clients. However, after a sometime, he was reported to be at a place of safety in the Republic of South Africa.

Recently, Human Rights Lawyer Thabiso Mavuso withdrew from representing Royal Eswatini Police Service Staff Association Secretary General Dumisile Khumalo and junior police and Correctional Services officers. Mavuso was representing Khumalo and the junior officers in matters in which the SG is challenging the decision of the national commissioner (NATCOM) of police to discipline her, and government seeking to interdict the junior officers from marching.

Another attorney, who spoke on condition of anonymity, said he now scrutinised cases before taking them. He said there were cases that he did not even give a second thought about and rejected them right away because he did not want to find himself in trouble.

Concerned

“Times have changed. Everyone is concerned about their safety now. It’s unlike in the past when we took any cases that came our way. The down side of this is that we will have a lot of inmates languishing in prison because they did not have a legal representative. There will be a backlog of cases as well,” said the attorney. If the situation persists, government will find itself having to provide the accused persons with pro deo counsel.  A pro deo counsel is assigned to accused persons in murder cases and any other cases which have constitutional connotations.

This means that the accused persons might be entitled to legal representation at the expense of the Eswatini Government, as some of the charges they are facing carry a sentence of death or imprisonment for life. Section 21 (2) (c) of the Constitution  provides that a person who is charged with a criminal offence shall be entitled to legal representation at the expense of government in the case of any offence which carries a sentence of death or imprisonment for life.

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