CIVICUS discusses US deportations to Eswatini with Sibusiso Nhlabatsi, a human rights lawyer involved in defending deportees.

Under a 2025 agreement with the Trump administration, Eswatini — an absolute monarchy in southern Africa — has accepted deportees from the USA who have no ties to the country. The arrangement is part of a wider US push to send migrants to ‘third countries’ and has sparked legal challenges over due process and conditions of detention.

What’s the nature of the US-Eswatini deal?

Eswatini entered into a contract with the USA to host over 100 deportees. The deal allows people who are not Eswatini nationals to be sent here and kept in prison without due process, which amounts to human trafficking and kidnapping. This is what happens when a wealthy country offers money and the receiving government has no scruples.

This arrangement represents a troubling trend of wealthy states outsourcing incarceration to global south countries where judicial independence is weak and governments are susceptible to financial pressure. By sending deportees here, the USA sidesteps the constitutional protections, judicial oversight and civil society monitoring that would be unavoidable at home. The US$5.1 million payment made the offer hard to resist. The people affected are poor, marginalised deportees no one will fight for.

The three men sent here in July 2025 never committed crimes in Eswatini. They had already served their sentences in the USA. Yet they remain locked up in a maximum-security prison where conditions are punishing. In domestic and international law, a person can be held for only two reasons: if they are awaiting trial with bail refused, or serving a sentence. These men fit neither. Their indefinite detention extends their sentences beyond what the law permits.

Why are the detainees denied legal counsel?

The government’s refusal to allow confidential legal access is a deliberate strategy. If the men had lawyers, they could mount habeas corpus challenges. Any challenge heard by the courts would succeed and they would have to be released.

The International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights both guarantee the right to legal assistance. Under Eswatini’s Correctional Services Act, no person can legally be detained without a committal warrant. Yet these three men, held in maximum-security conditions for several months, have none.

The government knows their detention cannot withstand legal scrutiny because it violates both domestic and international law. Denying them counsel is the only way to keep them detained. One detainee, a Cuban national, has gone on an indefinite hunger strike and his life is at risk. This is what happens when governments hold people beyond legal recourse.

How have the courts responded?

In February, the Eswatini High Court dismissed a challenge from the Eswatini Litigation Centre, ruling the organisation lacked sufficient direct interest – or standing – in the matter. The court’s deliberately restrictive interpretation is a judicial barrier to human rights litigation. The courts have narrowed legal standing requirements to block class actions, human rights cases and constitutional litigation.

According to Eswatini courts, there is a need to prove a matter affects you directly and individually, not that it harms other people or society more broadly. This contradicts how legal standing rules operate in most democracies, where civil society organisations and human rights groups can challenge unconstitutional actions in the public interest. Eswatini’s courts have weaponised doctrine to shield the state from scrutiny. When courts use procedural barriers like standing to prevent human rights cases being heard on their merits, they become complicit in violations.

There is, though, a path forward. The detainees can challenge their detention directly in the High Court. The challenge would be strong and could succeed.

Where else can the detainees turn now?

When domestic courts fail, there’s the possibility of turning to international human rights mechanisms. The three detained deportees have now filed a complaint before the African Commission on Human and Peoples’ Rights alleging their prolonged detention is unlawful. The Commission can investigate systematic human rights violations, pressure governments and make findings that carry weight diplomatically.

The complaint alleges violations of fundamental rights: indefinite detention without legal process, denial of legal counsel and detention based on a secret bilateral agreement rather than law. All breach the African Charter, which Eswatini has ratified. The Commission will examine whether Eswatini is in breach of its continental human rights obligations.

When international bodies document violations, this shapes how other states and international bodies engage with the violating state. It may also open the way for future litigation.

CIVICUS interviews a wide range of civil society activists, experts and leaders to gather diverse perspectives on civil society action and current issues for publication on its CIVICUS Lens platform. The views expressed in interviews are the interviewees’ and do not necessarily reflect those of CIVICUS. Publication does not imply endorsement of interviewees or the organisations they represent.