Over the past few years allegations of treason have become more regular in South Africa. While there has only been one major treason case in the 23 years since the end of Apartheid, there have recently been a number of accusations of treason levelled against a variety of individuals, ranging from student activists to senior politicians. These allegations can be seen in the context of the implementation of treason law in southern Africa, with a number of pending treason cases in other countries that have been seen as politically motivated.

Treason has its recorded historical roots in the ancient Greek and Roman Empires where the concept was initially developed, although mostly for crimes against the monarch rather than the state in general . The definition of treason has historically been relatively broad and has developed quite drastically over time. It has evolved so that some offences that may have previously been deemed treasonous are now minor crimes, with the reverse also true. Broadly speaking treason can be defined as: “the crime of committing an attack upon institutions which the ruling groups in a community recognise as essential to the continued existence of the community as constituted at the time” . This definition would suggest that the structure of the government in itself is secondary.
Treason law by country

Treason law by country
The law on treason in Southern African countries is normally clearly defined as a specific crime with statutory provisions. This is the case in Botswana , Lesotho , Zambia , Zimbabwe  and Malawi  where the countries’ penal codes define treason. The crime is one that requires the individual to be a citizen of, or owe allegiance to the country, in question. While each country phrases their law differently, the central crux of the provision is that any individual who conspires or incites others to attempt to overthrow the lawfully constituted government, alter the laws or policy of the country by force, usurps the power of the government or incites invasion will be guilty of treason. These treason laws also include subsidiary charges such as sedition and concealment of treason.
Other countries do not have a specific statutory prohibition of treason.  Rather, they utilize the common law or similar broad statutory provisions. In Swaziland, sedition and anti-terror laws have been used in order to prosecute treason cases . In South Africa treason remains a common-law offence . The crime of high treason is defined as:
“any conduct unlawfully committed by a person owing allegiance to a state with the intention of:
• overthrowing the government of the Republic;
• coercing the government by violence into any action or inaction;
• violating, threatening or endangering the existence, independence or security of the Republic;
• changing the constitutional structure of the Republic.”

Treason law application by country
While treason charges are rare in most Southern African countries, there have been recent instances of their use in a number of places. While some of these charges are in relation to clear threats against the legally constituted governments in these states, others have raised concerns that they are politically motivated and authoritarian in their nature. The most prominent of these is in Zimbabwe, with the treason case against Pastor Evan Mawarire . Mawarire rose to prominence amidst the wave of anti-government protests that hit Zimbabwe in 2016. A video he posted on Facebook started the “This Flag” movement which played a substantial role in the protests . Mawarire was initially charged with treason in April 2016 but was released following mass protests. Mawarire then left the country and went into exile in the United States of America. He was rearrested when he returned to Zimbabwe in February 2017, although he had attempted to do so quietly . He was charged with subverting a constitutionally elected government. Amnesty International accused the Zimbabwean Government of using the criminal justice system to crush political dissent.

In neighbouring Zambia, a similar trend has emerged. Hakainde Hichilema, the main Zambian opposition leader, was arrested on charges of treason in April 2017 following an incident where Hichilema’s convoy had refused to give way to President Edgar Lungu’s convoy on the way to a traditional ceremony in the Country’s Western Province . Hichilema was charged with treason over this and remains in police custody over a month later.  The charges were widely condemned globally and raised concerns that the Zambian government was using the charges to crush dissent following his challenge to the results of the 2016 election .

Swaziland has also seen charges of treason being utilized to crush political dissent. Swaziland is Africa’s only absolute monarchy and has very restrictive laws about political activities . In 2015, the leader of the People’s United Democratic Movement (PUDEMO), Mario Masuku was arrested after he addressed a May Day rally . Along with the Party’s youth leader, Maxwell Dlamini, Masuku was charged with sedition and terrorism . The pair spent over a year in prison before being released. It is illegal to be a member of PUDEMO and the arrests were condemned globally by labour organisations.

There have been treason cases that are less focussed on political elites, including the Caprivi Treason Trial in Namibia . This case involved 132 alleged members of the Caprivi Liberation Army (CLA) being charged with treason in relation to an armed attack on government forces and buildings in the regional capital of the Caprivi Strip. The plans were related to attempts to force the secession of the Caprivi Strip .  The attack killed 11 people, including six members of the armed forces. The Caprivi Strip dates back to the colonial era, when Germany acquired it by ceding Zanzibar to the United Kingdom in order to create a link from German South West Africa to the Zambezi River . The region has remained part of modern-day Namibia, but there is a movement to secede - particularly by the Lozi people who are separated from the majority of Lozi people based in Botswana, Zambia and Angola. This created the environment for the CLA’s actions. Those who have been arrested have been accused of being members of the CLA and conspiring to overthrow the government of Namibia in the region. Of all those charged, thirteen were identified as the main accused and charged with high treason. The trial began in 2003, with the High Court convicting ten of the accused in 2007. The convictions were appealed and, in 2013, seven of the convictions were set aside with the case sent back to the High Court, while one individual was released entirely. The case is still continuing, a fact which has led to widespread condemnation of the lengthy period that accused people have remained in custody without a definitive verdict .

South Africa
Prior to 1994, charges of treason were often used to suppress opposition to the apartheid government. . There has only been one treason conviction in post-apartheid South Africa. In 2012, members of the far right-wing Boeremag group were convicted of treason following one of the lengthiest trials in South African legal history . The charges related to eight bombs that were set off in Soweto in 2002 as well as an attempt to assassinate Nelson Mandela as he opened a school in Tzaneen. The plans were aborted when Mandela travelled to the school by helicopter rather than by car. Those convicted of treason were sentenced to 25-30 years in prison .

However there has been increasing talk of treason over the past few years, with allegations and attempts to charge a number of people for the crime. The ANC lodged treason charges against EFF leader after he suggested he would be prepared to overthrow the government at the “barrel of a gun” . Additionally, there were attempts to charge six UCT students arrested outside Parliament during FeesMustFall protests in 2015 for treason. Private investigator Paul O’ Sullivan was also threatened with treason charges as was ANC stalwart Sipho Pityana, following the latter’s calls for the ANC to remove President Jacob Zuma. Finally, allegations of treason and working for foreign governments have been made against numerous NGOs.

None of these charges or allegations has ever been prosecuted. It is also unlikely that they will be.  With the exception of Malema’s comments, all these actions are merely challenge the government. None of these acts shows a desire to overthrow the government through unlawful means and it is highly unlikely any court would convict them. However, the rhetoric is a concern and reflects the view that criticism of government actions is a threat to the stability of the state. This is clearly misguided in a constitutional democracy.

Rafael Friedman