Swaziland: eSwatini - a Brief Tale of Two Laws

15 September 2020

An act passed to recover the proceeds of organised crime may now be used by eSwatini's authorities to score points for a cannabis law that many think will benefit a powerful few.

In June 2018, King Mswati III put his signature on The Prevention of Organised Crime Act (Poca) and it became law.

Among other things, the law aims to "introduce measures to combat organised crime and criminal gang activities; prohibit certain activities relating to racketeering; criminalise certain activities associated with gangs; [and] provide for the recovery of the proceeds of unlawful activities."

Even though the act came into effect in July 2018, just a month after it became law, instruments for its enforcement would come at a later date. The Asset Recovery Committee (ARC) was established in 2019, for example. Speaking at the first meeting of the ARC in September 2019, Prime Minister Mandvulo Dlamini said: "As a country, we cannot afford to lose any cent through crime and corruption if we are to fulfil our goal of economic transformation and development."

This piece of legislation is long overdue. The country became a signatory to the United Nations Convention against Corruption in 2005. And while it has institutions such as the Anti-Corruption Commission and the National Anti-Corruption Forum, and a legal framework that includes the Money-Laundering and Financing of Terrorism (Prevention) Act, the entire apparatus was incomplete without a piece of legislation that would deal specifically with organised crime.

Besides, no legislation or institution has been able to effectively facilitate the work of fighting corruption in eSwatini since independence in 1968. And with the royal decree of 1973 - in which King Sobhuza II suspended democracy and transferred all powers (executive, judicial and legislative) to himself - the problem became endemic, and part and parcel of the country's politics and commerce.

Poca then, many commentators agreed, would help begin the work of dismantling syndicates and networks of white-collar crime and even take down powerful personages. It turns out, however, that people might have been too quick to hope.

Many raids have been conducted since the law came into effect. But reports on these raids by the country's major news publications point to a bias in the law's application. A certain kind of corruption is targeted while another is ignored. It has mainly been farmers (and alleged dealers) of cannabis that have had their assets confiscated by the ARC.

"This is a witch-hunt," said eSwatini Cannabis Association chair Saladin Magagula, a former member of Parliament for the Hhukwini constituency. "Do not look at someone and suspect them of being a dealer. Besides, the law is not specifically for people who grow dagga. Poca is meant to target people who profit through corruption and a lot of other crimes, especially white-collar crimes.

"It is not right to divide eSwatini citizens like this. This will create strife among the populace. It is wrong to target only a few poor dagga farmers and let big-money thieves go free."

Why cannabis farmers and dealers?

In June 2020, the eSwatini parliament rejected a proposed law called the Opium and Habit-Forming Drugs (Amendment) Bill. It is an amendment to a 1922 Act of the same name. Former registrar of the Examinations Council of Swaziland Ben Dlamini fought for years to have this legislation scrapped, even taking the matter to court in 2010. The government paid him no mind then. So, why the scramble to legalise cannabis now?

American company Stem Holdings reported in 2019 that it had "received preliminary approval to become the only licensed growing farm and processing plant for medical cannabis and industrial hemp in The Kingdom of eSwatini for a minimum of 10 years". The company would be "the exclusive exporter within eSwatini for hemp and medical cannabis worldwide".

What this means is that locals who have been secretly farming cannabis for years - with many victimised and their fields set on fire - would not be able to farm and export their crops. Unlike Stem Holdings, they have neither money nor influence.

Magagula says this is criminal and that allowing such an arrangement to go ahead would be irresponsible. He says emaSwati must be preferred in this cannabis enterprise that promises to boom.

"It is especially important that growing the plant be reserved exclusively for eSwatini citizens. And, because we cannot run away from direct foreign investments, we then can include others from outside the country. But only along the value chain.

"It would be nonsense to have a foreigner acquire our land for dagga farming. He'll come here, plough our land and hire our people to tend to the dagga. No, emaSwati must do the growing themselves. It is what we have been doing for decades," Magagula said.

The company went on to say: "The eSwatini facility will be located on 2 500 acres at the science park Matsapha for cannabis and industrial hemp cultivation and will adhere to strict GMP [good manufacturing practice] processing, including a state-of-the-art research and development lab focused on genetic propagation."

The park in question was built on land from which 10 families were forcefully evicted and never compensated by the government.

The eSwatini government denied any knowledge of the deal, even as the country's health ministry, in haste, pushed to pass the cannabis bill into law. Minister of Health Lizzie Nkosi said she was against the withdrawal of the bill because it could delay the country's march towards economic recovery.

Some members of Parliament did not see it this way, however. A parliamentary select committee led by Lobamba Lomdzala member of Parliament Marwick Khumalo was seen to have done a poor job at consulting all the stakeholders concerned. The report on the need for the legalisation of cannabis in the country was seen to be not representative enough.

Cannabis growers, for example, were not consulted. Moreover, the many traditional leaders who govern on communal land, which is about 54% of the country, were never called into meetings or workshops and told about the bill. And so, on this account, the House of Assembly voted against it and instructed the health ministry to conduct thorough and representative consultations.

Parliamentary concerns

It was Hosea member of Parliament Bacede Mabuza who moved a motion that the minister of health should withdraw the bill to allow for further consultations, for a period of not more than six months. That was in June.

In July, after a series of Poca-enabled raids by law enforcement, members of Parliament debated the act and decided to suspend it. Mabuza was once again at the forefront. Among a number of protestations, he moved that Minister of Justice Pholile Shakantu should prepare a bill that would amend certain sections of Poca to address a number of concerns.

Some of the issues about which members of Parliament expressed concern were the confiscation of property based on suspicions (and without knowing the individual's exact source of income) and selective application of the law, which seems to target alleged cannabis growers and dealers (without proper investigation and without affording suspects the right to be heard).

About two weeks later, on 5 August, Mabuza was arrested on charges of "obstruction". This came days after his brother, a businessman, had his properties ransacked by the Royal eSwatini Police.

Mabuza's arrest and intensified raids on the properties of people suspected to have profited through cannabis dealing is seen by many to be intimidation and a calculated elimination of dissent.

With Mabuza out of the way and cannabis farmers disempowered (and without any power to organise or lobby), the government might finally succeed in having the Opium and Habit-Forming Drugs (Amendment) Bill passed, even without the proper consultations. Now that Mabuza and his colleagues' voices are muffled, Poca raids will continue until there is no eSwatini citizen brave enough to grow and sell cannabis for their daily bread. In a country where the unemployment rate sits at 22%, this is devastating.

Poca linked to the Cannabis Bill

Mbabane-based human rights lawyer Sibusiso Nhlabatsi says there is no question that Poca has been used to target alleged cannabis farmers and dealers. And this is unfair as the law is not meant to deal with cannabis cases only. It is apparent, Nhlabatsi says, that the incidence of raids on cannabis farmers' properties increased immediately after the Opium and Habit-Forming Drugs (Amendment) Bill was rejected in Parliament.

"Ever since the bill failed, it appears there is an overt campaign to say, 'You can't be dealing in dagga anymore,'" says Nhlabatsi. "It is like they are trying to protect someone who has an interest in the business of dagga."

Moreover, the Opium and Habit-Forming Drugs Act has always been enforced alongside the Pharmacy Act of 1929. The state charges many suspected of cannabis possession, dealing and farming under this act. If the government's claim that it wants to legalise cannabis and open up the industry for local people is genuine, the Pharmacy Act would have been scrapped or amended as well, alongside the cannabis bill, says Nhlabatsi.

Meanwhile, police raids continue. The noise about Poca in Parliament and the decision by members of Parliament to suspend the act was all for nothing, too.

"Parliament can only reject or amend a bill and not suspend an act, and any resolution purportedly suspending Poca is ineffective," said Dlamini, days after the heated debate in Parliament.

"We will not flinch or hesitate to rid this country of the scourge of corruption and crime, without exception, as we accelerate our economic renewal strategies," he said.

It appears, however, that the prime minister's statement is a fable. There are exceptions: the political elite, making deals and untouchable. Then there are the cannabis farmers, in perpetual hiding. They may lose all they own in a single moment.

The ARC could not be reached for comment.

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