According to the 2005 Constitution of the Kingdom of Swaziland,S. 14(1), 2005 Constitution of the Kingdom of Swaziland Act.the fundamental human rights and freedoms of the individual are guaranteed, including respect for life; the freedom of peaceful assembly and association and of movement; and the protection from inhuman or degrading treatment or arbitrary search and entry. In 2018, the King of Swaziland renamed the country the Kingdom of eSwatini.
Section 15 of the 2005 Constitution protects the right to life. It is stipulated thatS. 15(4), 2005 Constitution of the Kingdom of Swaziland Act.
a person shall not be regarded as having been deprived of life in contravention of this section if death results from use of force to such extent as is reasonably justifiable and proportionate in the circumstances of the case -
(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a serious criminal offence.
Under Section 18(2) of the Constitution, a person "shall not be subjected to torture or to inhuman or degrading treatment or punishment".
Chapter V of the Constitution addresses law enforcement, stating that law enforcement officials shall act in accordance with the “high degree of responsibility required by their profession” and that they should “respect and protect human dignity and maintain and uphold the human rights of all persons.” Law enforcement officials are prohibited from torturing or inflicting “inhuman or degrading treatment or punishment,” and may not “invoke superior orders or exceptional circumstances as a justification" for torture or other forms of degrading punishment.S. 57(1-4), 2005 Constitution of the Kingdom of Swaziland Act.Nevertheless, the Constitution maintains the King's power to declare a state of emergency, which may involve the revocation of certain rights. The rights to life, to equality before the law, to security of the person, and to freedom from torture and ill treatment are non-derogable.S. 38, 2005 Constitution of the Kingdom of Swaziland Act.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||Not party|
|1981 African Charter on Human and Peoples' Rights||State Party|
|1998 Protocol to the African Charter on the African Court||Signatory|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Signatory|
Police Use of Force
A range of legislation governs use of force by law enforcement officials in Eswatini. The 1957 Police Act entrusts the Royal Swaziland Police Service with the prevention of crime and the bringing of offenders to justice.S. 7(3), 1957 Police Act.Some of the legislation dates back to the 1930s. The 1938 Criminal Procedure and Evidence Act allows a police officer immunity from prosecution for shooting to death an escaping criminal, whether or not he or she is armed or otherwise poses an immediate threat to life.S. 41, 1938 Criminal Procedure and Evidence Act.In its 2016 National Report for its Universal Periodic Review under the UN Human Rights Council, however, Eswatini claimed that:
The criminal procedure code permits law enforcement officers to use lethal force as measure of last resort where their lives are in danger. Non-lethal force is used where a person suspected of criminal conduct resists arrest or flees and cannot be apprehended or prevented from fleeing by means other than the use of force.
The 2017 Public Order Act amends legislation from 1963 on public gatherings.1963 Police and Public Order Act.A gathering that is deemed by a police officer (above the rank of sergeant) to be a "direct and immediate threat to public order or safety" may be dispersed, if necessary by force.S. 11(8), 2017 Public Order Act.The force used:
shall not be greater than is necessary to secure the dispersal of the gathering and shall be proportionate to the circumstances of the case and the object to be attained.S. 11(10), 2017 Public Order Act.
The 2018 Police Service Act stipulates that: "In the performance of their duties, where necessary, members of the Police Service may carry firearms in accordance with the provisions of the Aims and Ammunition Act, 1964, or its successor, and use such fire arms for achieving the functions conferred on the Police Service by this Act or any such other law."S. 9(4), 2018 Police Service Act.
The 1953 Game Act (as amended in 1991), gives Game Rangers (the Conservation Police) immunity from prosecution for killing any person they suspect of having engaged in poaching.1953 Game Act 51/1953 (as amended through 1991).In 2017, Swaziland told the Human Rights Committee they were considering "to review" the Game Act.
Use of Force in Custodial Settings
Under Section 11 of the 1964 Prisons Act, a prison officer is entitled to use lethal force against a prisoner to prevent his escape.
(2) A prison officer may use such force against a prisoner as is reasonably necessary in order to make him obey a lawful order which he refuses to obey, or to maintain discipline in a prison.
(3) If the use of firearms is the only practicable way of controlling a prisoner, a prison officer may use firearms against him if he is —
(a) escaping, or attempting to escape, from prison or other lawful custody and, when called upon to return, does not do so;
(b) engaged with other persons in breaking out, or attempting to break out, of part of a prison and, when called upon to desist, continues to break out or attempt to break out;
(c) engaged with other persons in riotous behaviour and when called upon to desist, continues to engage in riotous behaviour; or
(d) endangering the life of, or is likely to inflict grave injury to, such prison officer or to any other prison officer or person.
(4) A prison officer who in the exercise of his powers under this section wounds or kills a prisoner shall not thereby incur any criminal or civil liability. S. 11, 1964 Prisons Act (Amended L.33/1966).
There is no dedicated, independent police oversight body in Swaziland. Under the Constitution, a national Commission on Human Rights and Public Administration is given the mandate to investigate complaints of constitutional rights violations, injustice, corruption, abuse of power and unfair treatment by public officials.S. 164(1), 2005 Constitution.
VIEWS AND CONCLUDING OBSERVATIONS OF UNITED NATIONS TREATY BODIES
In 2017, the Human Rights Committee issued its Concluding Observations on Swaziland (in the absence of a report). The Committee expressed its concern "at reports of excessive use of lethal force and arbitrary killings by law enforcement officers and game wardens" in Swaziland.Human Rights Committee, Concluding Observations on Swaziland (in the absence of a report), UN doc. CCPR/C/SWZ/CO/1, 23 August 2017, §30.The Committee was concerned by
the permissive conditions in Article 41 of the Criminal Procedure and Evidence Act and at provisions in the Public Order Act which leave it to the discretion of the individual police officer to decide whether it is expedient to use force.
The Committee was also concerned at "reports that proposed amendments to the Game Act may give game rangers immunity from prosecution for using force against persons suspected of poaching."Human Rights Committee, Concluding Observations on Swaziland (in the absence of a report), UN doc. CCPR/C/SWZ/CO/1, 23 August 2017, §30.
The Human Rights Committee urged Swaziland to
amend its national legislation governing the use of force by police officers and game rangers to ensure effective protection of the right to life in line with Article 6 of the Covenant.Human Rights Committee, Concluding Observations on Swaziland (in the absence of a report), UN doc. CCPR/C/SWZ/CO/1, 23 August 2017, §31.
It further recommended that Swaziland
take measures to ensure that the law and the practice are in accordance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.Human Rights Committee, Concluding Observations on Swaziland (in the absence of a report), UN doc. CCPR/C/SWZ/CO/1, 23 August 2017, §31.
Swaziland has not ratified the Protocol to the African Charter on Human and Peoples' Rights, allowing the African Court to hear cases alleging a violation of the Charter by the state.
Dlamini v. Commissioner of Police (2009)
This case concerned allegations of arbitary arrest, inhumane conditions during detention, and torture by police officers "who, taking him to an unlit room at night, beat him up and stomped on his feet while attempting to extract information on the whereabouts of a missing car key". While giving judgment for the plaintiff as to the unlawfulness of his arrest and his conditions of detention, the Court rejected the allegations of torture.
He did not supply any corroborative evidence such as the evidence of a witness who saw him during or after the beatings, bruises on his person, or a medical certificate issued to him after his release. Although I grant that the length of time it took for this case to come to trial made it unlikely for bruises/scars to be exhibited, I still find that a medical certificate issued after the plaintiffs release from the police cells or the evidence of one who saw his state after the fact, would have served as corroborative evidence. Although corroboration is not always essential to the proof of an allegation, in this circumstance, it was. This was because the evidence of Mdziniso, arrested around the same time and for the same offence (indeed the plaintiff alleged that they were taken to the Mbabane Police Station together and interrogated in that dark room around the same time), could have supplied the needed corroboration of torture and beatings but did not.