MBABANE – Arrested and awaiting trial, Swaziland International Solidarity Forces (SISF) “commander” Thabo Kunene said his arrest in Eswatini violates international laws and that Eswatini has no jurisdiction to detain him.
Kunene and his co-accused, Sibusiso Nkomonye, who are facing more than 40 charges related to the Suppression of Terrorism Act filed an application at the High Court of Eswatini, more than two years after their arrest, seeking for immediate release from Eswatini’s maximum security prison.
In their court application, they said they were unlawfully kidnapped and trafficked from within the borders of South Africa into Eswatini. Fighting for their liberation, since their arrest on May 31, 2023, they instructed their attorneys to file the currently pending application.
Their application cites the Prime Minister of Eswatini, National Commissioner of Police, Principal Secretary (Home Affairs), Minister of Justice and Constitutional Affairs, Director of Public Prosecutions (DPP), Attorney General (AG) and the South African High Commission in Eswatini as the seven respondents.
The application seeks for favourable court orders that realise their constitutional right “in terms of Section 16 (6) of the Constitution Act 2005 as read with section 35 of the Constitution Act 2005.”
In other prayers, they seek for a declaratory order declaring as kidnapping and trafficking from the Republic of South Africa to Eswatini unconstitutional, illegal, unlawful and against public policy; declaring their arrest and prosecution under the Suppression of Terrorism Act unlawful;
directing the court to stay the prosecution of the criminal offences against them pending the finalisation of this matter; releasing the Applicants from custody to the South African High Commission in Eswatini a position they were in prior to their abduction/kidnapping and trafficking into Swaziland and; quashing the Indictment in terms of Section 151 (1) of the Criminal Procedure and Evidence Act of 1938.
“I verily believe that I have the necessary locus standi to bring this application before this above Honourable Court because I believe I am currently wrongly incarcerated at Matsapha Maximum Correctional Services,” Kunene deposed in his founding affidavit.
“As a detained suspect, I have a direct and substantial interest to exercise my legal and constitutional right to move this Application to quash the Indictment for the reasons I will allude to in due course. It suffices to say that I was unlawfully arrested by members of the Royal Eswatini Police Service in the Republic of South Africa, and subsequently detained at Matsapha Correctional Services.”
The applicants awaiting trial said that two police officers by the name of Thabo Hlophe and Clement Sihlongonyane, acting on the instructions of the national commissioner of police “travelled to the Republic of South Africa wherein they subsequently abducted and/or kidnapped [them] me and the 2nd Applicant, and further trafficked us back to Swaziland using an informal crossing next to Oshoek/Ngwenya Border Post before they formally arrested and charged us of the alleged offences we are currently facing.”
The applicants said their constitutional and freedom of movement rights were violated and that the “subsequent act of trafficking/unlawfully” them into the country further contravened the Protection and Promotion of Fundamental Rights and Freedoms as provided for in the Constitution.
The duo said they were first abducted in South Africa and illegally smuggled into Eswatini using “an informal crossing in violation of established diplomatic channels to extradite suspects from the Republic of South Africa.”
They said they therefore cited the South African High Commission in their capacity as the official representative of their country. They also said South African jurisdiction, rights and sovereignty were violated by the Eswatini government, “in allowing its police officers to unlawfully abduct/kidnap” them.
The applicants said Eswatini failed to follow the laid down procedures of extraditing suspected offenders from the Republic of South Africa to Eswatini.
“My further Application is that we be returned to the status we were in before we were arrested and trafficked into Swaziland,” Kunene said.
Kunene said during their arrest they were brutally tortured by the police.
He said torture methods were used including: strangulation, physical assaults using fists, kicks, batons and gun buts, and “we were further pulled with our private parts and fastened with a wire in our hands.”
“During this torture they were assisted by a certain Nkomonye Traditional Healer known as Dr Mkhulu and his employees.
“I am advised by my Attorneys and verily believe that our arrest in the Republic of South Africa without a warrant was unlawful because I and the 2nd Applicant were not informed of the reasons for the arrest in terms of section 30 of the Criminal Procedure Act 1938 in Swaziland or section 39 and 40 of the Criminal Procedure Act 1977 in the Republic of South Africa as read with section 16(2) of the Constitution Act 2005 and no Warrant of Arrest was exhibited by the arresting officers,” Kunene said.
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