In a show of power, the state is making an example of the two members of Parliament whose only sin was to call for democratic reforms to the monarchy.
On 25 July 2021, at the height of the unrest that claimed the lives of or crippled many, the Royal Eswatini Police took Mduduzi Bacede Mabuza of Hosea and Mthandeni Dube of Ngwempisi into custody. Nine months later they remain behind bars, having been denied bail many times.
There is also Mduduzi "Gaw'zela" Simelane of Siphofaneni, who fled to neighbouring South Africa after the police had issued a warrant for his arrest.
King Mswati III's government in eSwatini is desperate to convict the members of Parliament (MPs) on charges of terrorism, sedition and two counts of murder. Mabuza faces an additional "violation of Covid-19 regulations" charge.
The sedition and terrorism charges stem from their political speeches, and not from anything they have done. According to Sicelo Mngomezulu, their attorney, "the government is seeking to criminalise political speech. In fact, it is clear in the evidence of the prosecution that nowhere in their speeches were they calling for violence, nowhere were they calling for hatred of the king."
The murder charge "relates to the death of Siphosethu Mntshali and Thando Shongwe". The two were knocked down by a car on 29 June 2021 at a roadblock they were manning during protests at Hilltop, Mbabane.
"What happened is that there was a car coming from Mahwalala going into Mbabane," says Mngomezulu. The driver, refusing to pay a toll fee to the protesters, did not stop at the gate. "He attempted to drive through and, in the process, knocked down six people." Shongwe and Mntshali, two of the six, later died in hospital.
"What is key to note here is that my clients were not there. They were not at Hilltop. They were not manning any toll gates or anything like that," adds Mngomezulu.
The state chose to pin two of the many unrest deaths on the pro-democracy MPs.
The charge of violating Covid-19 regulations that Mabuza is facing relates to a meeting he attended on 5 June 2021 at Hosea Inkhundla, his constituency.
"Bacede was invited to a meeting. He did not organise or convene the meeting. It was convened by Indvuna yenkhundla [an elected head of a constituency without a parliamentary seat] of Hosea ... The allegation is that people were not wearing masks, they were not observing social distancing and that there was no sanitiser," says Mngomezulu.
Protracted bail application
Since the first week of their incarceration, the MPs have been applying for bail. It has been denied each time.
Lawyer Derrick Jele, who briefed advocate Mduduzi Mabila, first applied for bail in the same week that the two politicians were arrested. It was denied. "The judge [Mumcy Dlamini] seemed to suggest in the judgment that they are a flight risk," says Mngomezulu. "The issue about them being a flight risk is a non-starter, as far as we are concerned. They are honourable members of Parliament ... All their assets are in Swaziland. Their families are in Swaziland. Their children are in Swaziland."
Later, Mngomezulu, who had by then joined the MPs' legal team, along with prominent human rights lawyer Thulani Maseko, briefed South African advocate Koos van Vuuren and lodged a second bail application. A judgment was issued on 14 August: bail denied.
"We then appealed both the first and second bail applications. We filed an appeal application at the supreme court," says Mngomezulu.
More frustrations followed. Even though the legal team had filed all the necessary paperwork by mid-September, they were not given a hearing date. September, October and November came and went.
Realising that it was taking too long to get a response, the MPs' legal counsel then filed an urgent application to compel the registrar of the supreme court and the chief justice to set down the bail appeal. The application was heard on 20 December and judgment, in the legislators' favour, was handed down on 29 December. The chief justice was now compelled to set down the bail appeal within the first week of the new court session.
"But regrettably, we were not granted the set-down," says Mngomezulu. After a week, when the legal team asked, they were told that the bail appeal would be heard on 29 April 2022.
"It was subsequently brought forward after we complained ... So on 25 March, we then appeared before a full bench of the supreme court," says Mngomezulu. "It was before Justice Jacobus Annandale, Justice Judith Currie and Justice Sabelo Matsebula."
Judgment was reserved. The MPs and their legal team are still waiting for the outcome of the appeal. After submissions, lead judge Annandale urged the nation to pray for a fair judgment. Mngomezulu says he was surprised by this as it is an anomaly, but he understands that the judge may have been gauging the mood in the country at the moment and therefore appealing for calm.
Human rights lawyer Sibusiso Nhlabatsi, speaking to the Swaziland News newspaper, said the judge's prayer request was unprecedented. He said it could mean that the bench is under pressure, likely because of interference.
Why only these three?
These men were elected members of the eSwatini Parliament's House of Assembly by their rural constituents in 2018. Way before things came to a boil in June 2021, all three - known as "pro-democracy MPs" - actively opposed bills and notices seen by many to be putting eSwatini citizens at a disadvantage.
Both Mabuza and the exiled Simelane were particularly active in 2020 and early 2021. They became the voices of their constituents and those of many indigent eSwatini citizens in the House of Assembly when, for example, they halted the passing of a cannabis bill that would have benefitted only the country's elite while sidelining everyone else.
In October 2020, Simelane went on to vehemently oppose Minister of Finance Neal Rijkenberg's Legal Notice 183 of 2020, which sought to limit the number of second-hand cars eSwatini citizens could import from Japan. He claimed it would be good for the environment, but later admitted that it was in fact to improve the country's standing in the Southern African Customs Union. Simelane's opposition to the government's notice gained traction and other MPs showed their support by voting against it. The two scored many other victories.
Dube became a menace to the regime at the beginning of 2021. In January, for example, he openly criticised one of the king's sons, Majaha, for mocking the death of Jan Sithole, a trade unionist and longtime campaigner for democracy in the kingdom. In the same month, the Ngwempisi MP "urged" the finance minister to reduce the royal family's budget.
Amid protests in May 2021 after the death of Thabani Nkomonye, allegedly at the hands of the police, all three MPs began openly calling for democracy in eSwatini - specifically the election of a prime minister - saying that democracy might help bring about a culture of accountability and justice in the country.
Ongoing trial
Meanwhile, the pro-democracy legislators' trial continues. About 54 witnesses have testified so far for the prosecution, the king's government. The MPs have not taken the stand, at least not yet. What has been heard from them is video evidence the state will rely on - footage of them addressing their constituents and calling for democratic reforms.
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The state is still to call more witnesses. Mngomezulu says fewer than 10 are still to take the stand.
"Once we have heard all the testimonies, we are going to apply for a discharge in terms of Section 174 of the country's Criminal Procedure and Evidence Act. A discharge simply means that, having heard the testimony of the prosecution, we take the view that our clients are not implicated." Mngomezulu adds that they will be asking the judge to release the two MPs because they have no case to answer to, hopefully in May or early June.
Simelane remains in exile and has since lost his parliamentary seat. He formed the Swaziland Liberation Movement in October 2021 and hopes to take part in the dialogue process, if it ever takes place. But charges of terrorism still hang over his head.
Campaigns by the mass democratic movement in eSwatini and global organisations such as Amnesty International have not done much to change the MPs' plight. The Multi-Stakeholder Forum, an umbrella body leading calls and preparations for a dialogue, demands that the two parliamentarians be released and that every political exile be allowed to return to the country before talks can begin. But the government has ignored all that. It has not shown any commitment to talks. The security forces continue to quell protests violently and persecute anyone who dares speak up.
But the two MPs hope the supreme court will release them on bail soon. They remain, in the meantime, at the Matsapha Maximum Prison, where their prolonged stay has not been without problems. "At some point, both of them were confined to solitary confinement and [other times] were strip-searched in the middle of the night," says Mngomezulu.
Their lawyer would like "Swazi people and the world to know that they have in their clients very responsible members of Parliament who are [fighting] to see a Swaziland that is democratic, and a government that is elected by the people".
