NGOs challenge secret US-Eswatini deportee deal

COURT BATTLE

Illustrative Image: Eswatini flag. (Photo: Freepik) | Handcuffed person (Photo: Istock)

The Eswatini Litigation Centre, the Swaziland Rural Women’s Assembly and the Southern Africa Litigation Centre (Salc) based in Johannesburg filed an urgent application in the High Court of Eswatini on Thursday, 14 August, seeking to declare the secretive pact between the Kingdom of Eswatini and the US unconstitutional.

Human rights organisations in Eswatini and South Africa have launched a legal challenge against the Eswatini government over its confidential agreement with the Trump administration to accept five hardened third-country criminals from the US.

The Eswatini Litigation Centre, the Swaziland Rural Women’s Assembly and the Southern Africa Litigation Centre (Salc) based in Johannesburg filed an urgent application in the High Court of Eswatini on Thursday, 14 August, seeking to declare the secretive pact between the Kingdom of Eswatini and the US unconstitutional.

The groups had previously threatened legal action if the Eswatini government did not back out of the deportee deal with the US.

The application argues that the terms of the high-level agreement are concealed and have been implemented without public participation and the ratification of Parliament, constituting a violation of provisions such as section 238 of the Eswatini Constitution.

“The circumstances under which this agreement has been concluded raise serious concerns about executive overreach, human rights and national security,” the organisations said in a statement on Thursday.

Section 238 of the Constitution provides that international agreements, including treaties, conventions and protocols, require either an Act of Parliament or a two-thirds majority resolution passed in a joint sitting of both chambers of Parliament to become binding on the Eswatini government.

The respondents in the case include Eswatini’s prime minister, its correctional services commissioner, minister of home affairs, minister of foreign affairs and attorney-general.

‘African nations are not dumping grounds’

The Trump administration sent five criminals from Vietnam, Jamaica, Laos, Yemen and Cuba to Eswatini last month, resuming the practice of so-called third-country deportations after the US Supreme Court rubber-stamped the practice in late June. The deportees had criminal records which included convictions for murder, homicide and child rape.

Since returning to the White House, US President Donald Trump has embarked on a wide campaign to get countries to accept the US’s deportees.

A New York Times investigation in June detailed how the Trump administration had been looking to get more than 50 nations, including Eswatini, to take third-country migrants. A Department of Homeland Security memo revealed that a US diplomat met with Eswatini government officials in March to push them to take expelled citizens of other nations, according to the publication.

On Wednesday, 13 August, CNN reported that the number of US planes carrying Immigration and Customs Enforcement (ICE) detainees had “skyrocketed” in recent months, but these planes had become increasingly difficult to track. Most of the people on these flights had no links to the countries to which they were being flown, the publication reported.

Following the five deportees’ arrival on 16 July, the Eswatini government confirmed that they had been detained, claiming that they presented no threat to the people of Eswatini.

However, it has refused to disclose the terms of the agreement, other than to say the US was covering the costs of keeping the men imprisoned and that they would work with the International Organization for Migration to deport them back to their home countries, according to a report in The Guardian.

Eswatini’s Prime Minister, Russell Dlamini, has, however, said his country is open to receiving more deportees if requested to do so by the US and if Eswatini has the capacity.

In their statement on Thursday, the human rights organisations said the court application was a signal to the world that African countries would no longer act as dumping grounds for the Global North’s unresolved issues.

“Powerful nations like the US increasingly outsource contentious policies such as third-country deportations

to less powerful states, often through opaque arrangements that exploit economic vulnerabilities and bypass democratic safeguards. This litigation signals to the continent and the world that African nations cannot serve as dumping grounds for unresolved issues,” they stated.

The Salc civic rights cluster lead, Melusi Simelane, told Daily Maverick that countries in the Global North, including the US, had been using African states “as conduits to whatever political gymnastics might be happening in the Global North”.

The tiny southern African kingdom was spared earlier this year from Trump’s sweeping “reciprocal” tariffs that have hurt economies around the globe, and there’s been some speculation that Eswatini had agreed to accept the convicts in exchange for avoiding the trade tariffs.

In addition to their request that the agreement be declared unconstitutional and invalid, the organisations are also seeking an order from the high court compelling Dlamini to make the terms and financial details of the agreement public. They are also seeking to interdict further deportee arrivals pending the outcome of the case.

“Whatever agreement exists between the Kingdom of Eswatini and the United States must be public, [and] must be scrutinised by our Parliament,” said Simelane.

‘Destabilising international relations’ 

In the application, the organisations argue that the agreement between the US and Eswatini poses the risk of “negating international relations” with other countries.

“An agreement to accept nationals from third countries who have no ties to Eswatini risks our international relations with neighbouring countries and the countries from where those five nationals are citizens. The agreement further risks the best interests of Eswatini and our commitments under international law,” read the application.

It noted that South Africa had raised concerns about the agreement and its potential security risks for the country.

In a statement on 5 August, the South African Department of International Relations and Cooperation (Dirco) said it was “deeply concerned” about the profiles of the five deportees and the “potential adverse impact on South Africa’s national security and immigration policy, given the geographical proximity” between SA and Eswatini. It added that it had raised its concerns with the Kingdom of Eswatini.

According to an SABC report, Pretoria summoned the Eswatini high commissioner last week to seek clarity on the agreement. Daily Maverick requested confirmation from Dirco spokesperson Chrispin Phiri, but a response had not been received by the time of publication.

At a press conference on Thursday evening, Presidency spokesperson Vincent Magwenya said that engagements between South Africa and Eswatini on the matter would continue, adding that “there have been some assurances that have been given by Eswatini”.

“South Africa’s concerns about the whole exercise are well documented and well known, and Eswatini has so far undertaken to ensure that none of those individuals escape their care and find themselves in South Africa,” said Magwenya.

In response to questions from Daily Maverick, Eswatini government acting spokesperson Thabile Mdluli said: “We will allow the courts to do their job and can’t comment further on the matter since it’s now sub judice.”

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