By Nomfundo Manyathi-Jele
The Foundation for Socio-Economic Justice, the International Commission of Jurists, the Lawyers for Human Rights and a number of other organisations hosted a welcome back dinner for the recently released Swazi human rights lawyer Thulani Maseko and the Nation magazine editor, Bheki Makhubu, at the Kutlwanong Democracy Centre in Pretoria on 16 July.
The dinner was attended by civil society representatives and the wives of Mr Maseko and Mr Makhubu. The keynote address titled ‘[t]he price paid by human rights defenders’ was presented by human rights lawyer, advocate George Bizos.
Mr Makhubu and Mr Maseko were charged and convicted for contempt of court for articles they wrote in the Nation magazine in Swaziland. The articles criticised Swaziland’s former Chief Justice Michael Ramodibedi. It was widely believed that the imprisonment of the two was an attempt to silence their criticism of the judiciary and the Swazi monarchy.
The pair spent 15 months in prison before the Supreme Court overturned both their convictions and sentences on 30 June 2015.
Judicial activism
Mr Bizos said judges, human rights lawyers and journalists who were concerned about the actions of the apartheid government were victims of calculations to silence them, suppress them, jail them or execute them.
According to Mr Bizos, the pre-Apartheid government applied Roman-Dutch Law and in the latter part of the century English law influenced them. ‘The rights guaranteed by the Magna Carta were generally respected by colonised South Africa. The judges who were appointed after the establishment of South Africa as a state respected the rule of law, despite the fact that many of the laws of the time were unjust relating to the lives, property and freedom of non-white people. A fierce dispute raged between those who applied the black-letter of the law as it was (even if this had unjust consequences), and those who argued that the principles of natural justice must be applied when making judicial decisions.’
Mr Bizos said the right to vote is one such illustration, adding that the coloured people of the Cape initially had a right to vote for a limited number of parliamentarians, who had to be white. ‘The Constitution of the Union of South Africa provided for the supremacy of its parliament consisting of an assembly and a senate. The Constitution could not be amended without a two-thirds majority of the combined Houses of Parliament and Senate,’ he said.
He added: ‘The government led by Dr DF Malan, elected in 1948, took steps to remove the coloured people from the voters’ roll, despite not having a two-thirds majority and maintaining that the provision of the Constitution was impliedly revoked when South Africa became an independent state in the early 1930s. Action was taken by representatives of the coloured people to declare that the legislation passed by Parliament was invalid. The Court of Appeal, consisting of five white judges, held that the legislation depriving them of the vote was invalid. The Apartheid government did not accept the correctness of the decision of the Court of Appeal and passed an Act declaring Parliament as a court of appeal capable of a ruling. The Court of Appeal again declared the legislation invalid. The Apartheid government would not give up and in order to get a two-thirds majority, they passed legislation to increase the number of senators substantially so that they could get the two-thirds majority in Parliament to deprive the coloured people of their right to vote. The representatives of the coloured people again went to court contending that the packing of the Senate was invalid, that it was passed in bad faith, and was not binding.
‘The government had an answer: They increased the number of judges on the Court of Appeal by increasing the number from five to 11 and packing it with six additional judges who were unashamedly close to the politicians who appointed them. They were appointed for the specific purpose of overruling what the five judges had previously decided. The majority of the newly constituted court of 11 judges voted ten for and one against. The only dissenting judge was Oliver Schreiner who held that in his view the packing of the court was an unlawful stratagem. He was considered one of the outstanding judges, and was expected to be appointed Chief Justice, which the Apartheid government blocked. Ultimately, the vast majority of the people of South Africa, and more particularly the disenfranchised blacks, Indians, coloureds and Chinese had no option but to accept what Judge Shreiner considered trickery.’
Mr Bizos said that during Apartheid, numerous tools were used to suppress non-white people including the tactic of ‘detention without trial’ for human rights activists. He said activists could be detained for three months at a time without a trial, and were often released and then thrown back on the same day. Other tactics included house arrest and banning order, whereby people were banned from attending gatherings or moving outside one’s home. ‘A number of attorneys were banned, detained, forced into exile, and prevented from doing legal work. There was also the enactment of Acts by Parliament and Executive Proclamations, depriving persons of the right to vote, to own property, to move about the country without a pass, preventing them from attending certain schools and marriages between persons of different colour, and many other ways’, he said.
Mr Bizos said a number of the judges set aside proclamations and, to the great annoyance of the government, would declare that such laws could not be laws, because they were not just.
Mr Bizos then spoke about human rights defenders who furthered the cause of judicial activism. Speaking on the two human rights lawyers he knew, the late Former President Nelson Mandela and Bram Fischer who he said ‘sacrificed their freedom in defending the rights of all people in South Africa’.
Human rights lawyer, advocate George Bizos giving the keynote address at the welcome reception of Swazi human rights lawyer Thulani Maseko and the Nation magazine editor, Bheki Makhubu at the Kutlwanong Democracy Centre in Pretoria in July.
Mr Bizos said President Mandela was constantly being persecuted by the law. He added that there was an incident where President Mandela was not recognised as an attorney by a magistrate. Mr Bizos said an attempt was further made to disbar him after he was convicted of having taken part in the defiance campaign in the early 1950s. The court dismissed the application to have him disbarred, because even though he had been convicted of an offence, there was no moral turpitude in the commission of the offence and it did not mean that his participation could prevent him from continuing to be a member of an honourable profession. Despite his conviction of participating in the defiance campaign, he was given a suspended sentence.
‘President Mandela was also arrested on a charge of treason in 1955 and was acquitted in 1961. His practice as an attorney in partnership with Oliver Tambo was seriously affected by this. He was then sentenced to five years imprisonment in 1962 for organising a strike and leaving the country without permission. In 1964 he was sentenced to life imprisonment on numerous charges of sabotage. He spent 27 years in prison. Because I was both his friend and his lawyer, I visited him regularly on Robben Island. Some of us even became persona non grata for the numerous political cases that we did. Although threatened and deprived of citizenship for 22 years, I continued to take on these political cases. Cases which have shaped my life. One such case I took on was that of my friend Bram Fischer,’ said Mr Bizos.
Mr Bizos said Mr Fischer was not only one of the greatest lawyers he knew but was also one of the greatest victims of the Apartheid regime. ‘On 23 September 1964 Bram was arrested after much suspicion on behalf of the security police, and charged under the Suppression of Communism Act [44 of 1950]. He was considered a traitor of Afrikaner nationalism. Bram refused to leave to London on bail, on the advice of many of his colleagues. He believed that South Africa was his home and he could not leave it permanently. He was too honourable for his own good,’ he said.
Mr Bizos added that during the latter half of the Rivonia Trial, it became apparent that the security police had concrete evidence revealing that Mr Fischer was one of the senior leaders of the Communist Party and was actively involved in the underground movement. He was ultimately disbarred and convicted of the charges brought against him. ‘I was one of his lawyers in the trial with Sydney Kentridge acting as my senior. Bram was released from prison many years later to the home of his brother on very strict conditions when he was diagnosed with terminal cancer. He died soon afterwards. He led a very hard life, defending his beliefs,’ he said.
Mr Bizos noted that during the trial, Mr Fischer made the following statement: ‘There must be a rational and purposive relationship between law and morality, and particularly between law and justice. The law must have a morally defensible content. …Your laws do not have that content. I am therefore not obliged to obey them.’ Mr Bizos added that despite the harsh consequences for his beliefs, Mr Fischer maintained his courage throughout the trial and the remaining years of his life. ‘He was one of the key contributors to our non-racial democracy,’ he said.
Speaking on the activism of judges during Apartheid, Mr Bizos said judges are generally encouraged to avoid becoming or giving the appearance of being committed to a political party or policy. He added that judges are bound by their oath of office to not show prejudice against particular persons or groups of persons and that they should not make offending comments against generally accepted moral standards. ‘They should avoid gratuitous controversy,’ he said.
The judiciary and the executive
Mr Bizos also spoke on the relationship between the judiciary and the executive. He said he believes that it is the principle of constitutional supremacy that will dictate the interaction of the judiciary and the executive when dealing with the separation of powers in relation to judicial activism.
Mr Bizos said: ‘Often the power of the judiciary is criticised as “counter-majoritarian”, as it is not elected; but it is the task of the courts to uphold the Constitution. That task is entrusted to them by our Constitution. There is no doubt that the exercise of judicial review, where the laws of Parliament or the conduct of the executive are set aside, is potentially imposing and may even overwhelm. In crucial times, it can indeed “determine the destiny of a nation”, in Justice Mokgoro’s words. The power of the courts will be impotent if organs of state have the choice to disregard court orders.’
Mr Bizos added that a complementary interaction between the judiciary and the executive needs to be fostered, rather than a competitive one. He added that if there is no co-operation between the judiciary and the executive, in Former Chief Justice Mahomed’s words, ‘the courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar but no teeth with which to bite and no sinews to execute their judgments, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom and pious poetry… Judges, in such circumstances, would visibly be demeaned. But much worse: Human rights could irrevocably be impaired and civilisation itself dangerously imperilled’. He said this interaction will be the determinant of the protection of human rights defenders.
In conclusion, Mr Bizos said even where you have a Constitution like ours, where you have a duly elected and legitimate government, where you have an independently appointed judiciary, it does not mean that you should no longer protest or toyi-toyi. ‘We need to receive the baton passed on from human rights defenders before us to continue to strive for a country that sees the rights of all being realised. As to what the future holds … I would like to believe that the institution of the judiciary and Chapter 9 institutions are sufficiently strong to withstand the challenges to come and with the support of civic society to prevent any compromises. As for the continent and abroad, South Africa must continue to set the example,’ he said.
Mr Makhubu’s jail experience
Mr Maseko and Mr Makhubu also had a chance to share their experience of jail. In his speech, Mr Makhubu started off by saying that being out of prison has been a bit of an overwhelming experience. ‘We were sitting in jail literally doing nothing and disconnected from the real world. Sometimes you think that people will forget about you and move on. I did not know that so many people were concerned about our welfare and it was really mind blowing to see all the support and words of encouragement that we received when we left jail on 30 June. I would like to thank everyone because I do not think that things would have played out the way they did without the pressure put on the Swazi government,’ he said.
The Nation magazine editor, Bheki Makhubu, sharing his experience in prison at his and Swazi human rights lawyer, Thulani Maseko’s welcome reception in Pretoria in July.
Mr Makhubu said that when they were charged with contempt of court a year ago, former Chief Justice Ramodibedi ‘was doing what any sane person should had done, well in the eyes of the authorities in Swaziland, to shut us up and put us in prison because we were writing too many articles complaining about the way Swaziland is run. I believe and know that he had the full support of government in what he did to us and that is why the things that happened went on despite blatant evidence that the whole thing was being manipulated, it was more politics than everything,’ he said.
Mr Makhubu said that their charges kept changing. They were charged with contempt of court for breaking the sub judice rule but were convicted for contempt of court for scandalising the court because they could not sustain the charge of sub judice because their comments had nothing to do with a matter that was in court. ‘We commented on an issue where someone was denied a right to legal representation that was the [gist] of our article and as the trial went on, it became clear that the charge was wrong but they needed to convict us so they changed the charge along the way,’ he said.
Mr Makhubu reminisced about the day he was charged. He said that he was in South Africa when he received a call from his wife saying the police were looking for him. ‘I had the option of not going back to Swaziland but I felt very angry at Ramodibedi for what he was doing, because him and I had been having a run in for five years, I had serious problems with the way he was issuing judgments and his arguments in his court judgments. I just felt that he was abusing the court process,’ he said.
Mr Makhubu said what was supposed to be a contempt case that could have taken a day, maybe a week at most, took three months because they were throwing everything at Ramodibedi, essentially to give him the message that he was not going to walk all over the pair as he pleased.
Mr Makhubu considers judges to be very powerful people, perhaps even more powerful than presidents because of the power of their word and the responsibility that they have. ‘In Swaziland the judiciary had unfortunately forgotten how important their function is. To take someone to jail is a very serious decision and it is not one that should be taken lightly because to take someone to prison is to change their life completely, even if they are guilty,’ he said.
Mr Makhubu added that one of the biggest problems in Swaziland was that what the judges had tended to do was to issue judgments without giving a good reason for the decision, ‘as if issuing a judgment is an administrative function.’ Mr Makhubu appealed to all judges to not forget the seriousness of their decision when sending someone to jail. ‘Do not send them to prison if there is any doubt that he may not have done the crime because you are destroying a life,’ Mr Makhubu pleaded.
‘Ramodibedi might be gone but we must remember that he did not do all that he did in isolation to the Swaziland government. They were also in on it. The political system in Swaziland is rotten and one of the things that the authorities in Swaziland had done was that they needed the judiciary to sustain the promises of Swaziland,’ he said.
Mr Makhubu said the previous judges appointed at the then Swaziland Court of Appeal who were a mix of South African judges as well, tended to issue decisions that contradicted what government wanted so they fixed it and eventually all those judges had to go. ‘They then brought in African judges. They were boasting about how African and non-white and how beautiful the Bench now was. Well, that is how we ended up in jail. We went to jail because after the Africanisation of the Bench, judges were taking decision for political experience and not on evidence or on law. But because it was important politically to take people to prison,’ he said.
Mr Makhubu said he did not think that it was over. ‘Has the judiciary been cured since Ramodibedi has left? I think not. I think the only reason why things have turned out the way they are is because it had become a total embarrassment where the country stood internationally, and it was shutting doors for Swaziland with neighbours and international countries, something needed to be done. I do not think that the judiciary has got an action plan or strategy on how to do things right or how to do things competently. Maybe they have learnt not to be too rash on taking people to prison. As society, we need to keep the judiciary under constant pressure. We need to keep writing those articles and pointing out where the judiciary has erred,’ he said.
Mr Makhubu said he was a strong believer in the Swaziland constitution. He added that the government of Swaziland needed to be reminded of the values in the constitution. ‘When the Swaziland constitution came into operation in 2005 some of the people in Swaziland’s government who are in power argued that we could not have the constitution over rule the king and that the king cannot be told what to do by a piece of paper. In other words, they were trying to rubbish the constitution even though it was law. The constitution made it difficult for them to do the things they wanted to do,’ he said.
In conclusion Mr Makhubu said he would continue to ask for constitutionality in Swaziland, adding that central to constitutionalism is the judiciary. ‘In Swaziland they say the constitution is there but there is a reluctance to give effect to the Bill of Rights to freedom of speech, to freedom of assembly and all those other things that give us dignity and peace of mind and the ability to make informed decisions on our own lives,’ he concluded.
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 (Sep) DR 11.
