Swaziland court orders immediate release of human rights lawyer

July 23rd, 2015
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By Nomfundo Manyathi-Jele

Swazi human rights lawyer, Thulani Maseko and the editor of monthly publication, The Nation magazine, Bheki Makhubu, have finally been released from prison. They were released on 30 June.

On Tuesday 30 June the Supreme Court of Swaziland ordered the immediate release of Mr Maseko and Mr Makhubu after upholding their appeal against their conviction on contempt of court charges.

Mr Maseko and Mr Makhubu had been charged and convicted with contempt of court in March 2014 after they criticised the judiciary of Swaziland and then Chief Justice Michael Ramodibedi in two articles published by The Nation magazine. The successful appeal meant that the pair were acquitted of all charges, and could go home to their families after spending 15 months in jail.

The pair were arrested for articles published in the February and March 2014 editions of the magazine. The articles were critical of Swaziland’s governance and judicial system as they criticised the arrest of the country’s chief government vehicle inspector for executing his duties. Criticism was directed mainly at the country’s former Chief Justice
Ramodibedi, for issuing a warrant of arrest for the inspector on the basis that he had given a ticket to the driver of a government vehicle who was transporting a judge without the required authorisation.

The pair were found guilty of contempt of court by Swaziland High Court Judge Mpendulo Simelane on 17 July. They were sentenced to a two-year prison term on 25 July without an option of a fine. The sentence was backdated to 17 and 18 March 2014, the dates that they were taken into custody. Mr Maseko was due for release on 16 July, while Mr Makhubu was due to be released on the 17th.

De Rebus spoke to Mr Maseko who said that he was very happy to be out of jail but added that the problems of the country were still there. ‘Being out does not take the reason why we were put in jail away,’ he said.

Mr Maseko said the Supreme Court was supposed to meet in May but could not convene because the former Chief Justice was taking care of his own affairs and no one could be directed to sit at the court in his absence.

Sharing his experience in jail, Mr Maseko said when he was moved from Mbabane Prison to Big Bend Prison, the heat in Big Bend was unbearable as he was moved in summer. He said the prisoners were woken up at 5am every day to bath and eat and get ready to be dispatched for prison work at 7am. ‘I resisted and did not do any work. I told them that I cannot do any of the work there as none of it was in line with any of my interests. I am interested in human rights and the law. Carpentry, garden work etcetera had nothing to teach me or expand my skills,’ he said.

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From left, The Nation Magazine Editor, Bheki Makhubu, and human rights lawyers, advocate George Bizos, and Thulani Maseko, at a welcome reception for Mr Makhubu and Mr Maseko in Pretoria.

When asked whether he thinks the firing of Chief Justice Ramodibedi had anything to do with their release, Mr Maseko said: ‘I keep thinking of the way people are saying our arrest was brought about by the former Chief Justice. I think this is unfair as he did not act alone. Government was also involved and our release has nothing to do with him now being fired. We had a wonderful legal team, there was no way that the government would succeed in the appeal. International organisations also put a lot of pressure on the Swaziland government such as the Law Society of South Africa (LSSA), the [Southern African Development Community] SADC Lawyers Association, the Commonwealth Lawyers Association and a few others who demanded for our release. There was also local pressure from within the country.  It is because of them that we were released,’ he said.

Mr Maseko said it is back to business as usual for him. He returned to practise as an attorney at his law firm, but added: ‘I was away for 15 months though, a number of my clients happened to find services elsewhere,’ he said.

De Rebus asked Mr Maseko if there were any hard feelings and whether he would sue the Swaziland government. He said 15 months seems like a long time but that we must not forget that former President Nelson Mandela was in jail for 27 years. ‘I have no reason to be bitter or angry. President Mandela said that you must be able to stand up for what you are fighting for no matter what and to also be able to face the consequences of your actions when fighting against and going against something. What we complained about was correct, I have no regrets. We are also not done as we will keep talking. Who knows, maybe more jail time awaits me,’ he said.  He added that he is currently consulting with his lawyer about whether or not he will sue purely because what happened to him and Mr Makhuba was unfair, and not because he is bitter about it.

Tanele Maseko, Mr Maseko’s wife, told De Rebus that hearing that her husband would be coming home was simply amazing, adding that she was overwhelmed by excitement. Ms Maseko said that she has a three-year-old son who used to constantly ask her where ‘Daddy’ was and when he was coming home, ‘… and I could not explain to him, seeing that he was very young’. She added that their son is now ‘over the moon, and always wants to be where Daddy is, doing anything that Daddy does’.

Ms Maseko said it was a very difficult and emotional experience having her husband in jail. She added that when birthdays or anniversaries came, ‘it was extremely sad and lonely moments, because when it comes to those issues, my husband is always hands on, in terms of preparations or planning wonderful surprises.’

The secretary general of the Law Society of Swaziland, Nkosinathi Manzini, said that Mr Maseko and Mr Makhubu’s release came about during their appeal. ‘During the proceedings the Directorate of Public Prosecutions did not oppose the appeal as it is believed that the conviction was unsupportable and that Judge Mpendulo Simelane, who presided over their criminal trial in the High Court, should have recused himself,’ he said.

Mr Manzini said the Supreme Court started sitting last week and that this was the first available opportunity to deal with their matter on appeal.

Mr Manzini added that if the state, via the Director of Public Prosecutions’s office, says their matter was not properly handled and should not have been convicted then this is a ground for a civil suit but it is up to Mr Maseko and Mr Makhubu whether they want to pursue such a claim.

‘Their release is good for the image of the country because their case was also being followed by the international community and was also before the International Labour Organisation in Geneva as an example of how the country treats those who exercise freedom of speech,’ said Mr Manzini.

Reaction on the release

Executive secretary of the SADC Lawyers Association (SADC LA), Makanatsa Mokonses, told De Rebus that she welcomes the release. She said that SADC LA believes that it is a vindication for Mr Maseko and Mr Makhubu and the generality of the human rights movement in the SADC region. ‘The two, together with the SADC LA and the LSSA had from the beginning insisted that the charges were a form of harassment and that the conviction was malicious,’ she said.

The National Association of Democratic Lawyers (NADEL) said the appeal proceedings were a remarkable and most welcome turn of events. ‘It is reported that in the appeal hearing, the prosecutor began proceedings by indicating that he would not be opposing the appeal on the basis that the Director of Public Prosecutions believed that the conviction was “unsupportable”. He accepted that the prosecution had failed to make out a case in the High Court, and stated that the application for the High Court judge’s recusal on the grounds that he was personally connected to the case should have been granted,’ NADEL said in a press release.

NADEL added that the Supreme Court hearing was an acknowledgment of the deficient legal reasoning adopted by the High Court, and a vindication for Mr Maseko and Mr Makhubu whose articles sought to expose corrupt and unfair conduct on the part of the Chief Justice and other members of the judiciary.

From left, The Nation Magazine Editor, Bheki Makhubu, and his wife, Fikile Makhubu, with Tanele Maseko, and her human rights lawyer husband, Thulani Maseko, at a welcome reception for Mr Makhubu and Mr Maseko in Pretoria.

From left, The Nation Magazine Editor, Bheki Makhubu, and his wife, Fikile Makhubu, with Tanele Maseko, and her human rights lawyer husband, Thulani Maseko, at a welcome reception for Mr Makhubu and Mr Maseko in Pretoria.

NADEL President, Max Boqwana said: ‘While Maseko and Makhubu’s appeal is a welcome victory for them and their families, this can be seen only as the first step in securing the integrity of the judiciary in Swaziland. In keeping with NADEL’s previous resolutions to demand the immediate release of Comrades Bheki Makhubu and Thulani Maseko, we need to intensify our campaign for international solidarity with the people of Swaziland. We call on all democratic forces in our country, our continent and internationally to engage in campaigns to force the Swazi Kingdom and its government to adhere to democracy and the rule of law as set out in the African Charter for Human and People’s Rights,’ he said.

The Centre for Human Rights at the University of Pretoria (UP) has also welcomed the court order. Mr Maseko is a 2005 alumnus of the Centre for Human Rights and the 2011 laureate of the centre’s Vera Chirwa Award for human rights activism.

In a press release UP said: ‘… their imprisonment was an attempt to stifle free speech and criticism of the judiciary in Swaziland, an undemocratic country where the rule of law has largely been replaced by royal rule’.

According to the press release, director of the Centre for Human Rights, Professor Frans Viljoen, is delighted at the outcome of the appeal but lamented the long duration of their imprisonment before their rights were vindicated. ‘While the Supreme Court’s order has to be welcomed and affirms that some remnant of the rule of law is alive, it does not detract from the fact that political interference and arbitrariness in the application of the law largely renders the rule of law in Swaziland illusory,’ he said.

The Swaziland judiciary

Meanwhile, former Chief Justice Ramodibedi, the former Justice Minister, two high court judges and a registrar have been either arrested, suspended or fired.

The former Chief Justice Ramodibedi and former Minister of Justice and Constitutional Affairs Sibusiso Shongwe were indicted in a scheme to defraud the Swaziland Revenue Authority (SRA) by handing down a judgment that they did not owe taxes.

Former Justice Minister Shongwe was also arrested for defeating the ends of justice and theft of a court file which was in respect of an application by the Anti-Corruption Commission (ACC) for his arrest. The original court file with all original court documents was found in his house in his bedroom when the ACC conducted a search and seizure at his house. He was then subsequently fired as Justice Minister.

Judges Jacobus Annandale and Simelane were arrested for defeating the ends of justice. The charges against Judge Annandale were subsequently withdrawn and he is back at work, whereas Judge Simelane was suspended and is still under suspension. Judge Annandale was charged with the role he played in trying to rescind the warrants of arrest against the Chief Justice and Judge Simelane. Judge Mpendulo, who appeared in almost all the charges was charged together with the Chief Justice for his involvement in the Chief Justice and the SRA saga. He was charged with corruption and obstructing the course of justice.

The registrar of the High Court, Fikile Nhlabatsi, was also arrested for the same offences as Minister Shongwe because she is the one who handed the court file to him, she was suspended but has since been recalled to work.

Mr Manzini said former Chief Justice Ramodibedi could not be arrested because they felt that since he was a foreign national and with diplomatic immunity it would not be prudent to just arrest him.

‘Furthermore the police stated that they feared that he could harm himself or those with him inside the house if they used force to enter into the house because he had two official guns provided by the state for his own security with him. The other reason was a consideration that he should be impeached first and be removed as a judge before he could be arrested.’

His impeachment proceedings were subsequently held and he was found guilty of gross misconduct and was fired on 17 June for misconduct.

The former Chief Justice has since left Swaziland for South Africa through the Oshoek Border. His current location is unknown. He has a son that is based in Johannesburg who fetched him from Swaziland.

When asked what he thinks of the Swaziland judiciary and whether he thinks things will start getting better going forward, Mr Manzini said: ‘The Swaziland judiciary had been taken over and operating like a Mafia by the fired Chief Justice and the former Minister for Justice, judgments were sold to litigants, and this tarnished the image of the judiciary. With Ramodibedi and Shongwe gone from their powerful positions I do believe that the country is on the mend now and things will get better.’

Mr Manzini said that he is of the view that the arrests have shown that it does not matter what position you occupy, when you abuse your power, the law will finally catch up with you and you will be dealt with.

  • See 2014 (Sept) DR 15, 2014 (Aug) DR 16 and 2014 (May) DR

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (Aug) DR 11.