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Refereed articles

The (Mis)application of the limitation analysis in Maseko and Others v Prime Minister of Swaziland and Others, pg. 12 - 25

Unlike section 36 of the South African Constitution, the Swaziland Constitution does not contain a general limitation clause. Instead it incorporates internal limitations within each constitutional provision. Judicial interpretation of the constitutional text has been very slow since the 2005 Constitution came into force. This can be attributed in part to lack of constitutional jurisprudence, given that Swaziland operated under a repressive royal decree for over 33 years before the 2005 Constitution was adopted. It can also be partly attributed to an entrenched pattern of royal and political interference in the work of the judiciary over the years, which negatively impacted on judicial independence. However, in late 2016, the High Court of Swaziland in Maseko and others v Prime Minister of Swaziland and others delivered a judgment in which it declared two draconian pieces of legislation unconstitutional for failing to pass constitutional muster. These are the Sedition and Subversive Activities Act 1938 and the Suppression of Terrorism Act 2008. This decision signalled a departure from the past where Swaziland courts shied away from interpreting the law in alignment with the Constitution for fear of the political ramifications. It also marked the first time that the courts referred to the Constitution as a living document. The importance of the decision cannot be over-emphasised; especially in light of the stance adopted by the dissenting judge on the limitation of rights under the Swaziland Constitution. It is also a seminal case in that it struck down two statutes that formed the bedrock of political repression in a context where the independence of the judiciary had been threatened by both the executive and the head of the judiciary.

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