New arrest of Mr. Thulani Rudolf Maseko and Mr. Bheki Makhubu

Arbitrarydetention /

Judicialharassment

Swaziland

April 11,2014

The Observatory for the Protection of Human Rights Defenders, a jointprogramme of the International Federation for Human Rights (FIDH) and the WorldOrganisation Against Torture (OMCT), has received new information and requestsyour urgent intervention in the following situation in Swaziland.

Newinformation:

The Observatory has been informed about the new arrest of Mr. ThulaniRudolf Maseko, a prominent Swazi human rights lawyer, senior member ofLawyers for Human Rights Swaziland and the Southern Africa Human RightsDefenders Network, as well as of Mr. Bheki Makhubu, a columnist andEditor-in-Chief of The Nation,considered as the sole independent newspaper of the country.

According to the information received, on April 9, 2014, Messrs.Thulani Maseko and Bheki Makhubu were re-arrested following the decision ofJustice Simelane to suspend the judgment that had led to their release on April6. Both were held overnight at the Mbabane police station.

On April 6, High Court Judge Mumcy Dlamini had set aside the arrestwarrant of Mr. Maseko and Mr. Makhubu, following an application lodged by thetwo defenders' lawyers seeking a declaratory order that the March-17 arrestwarrant issued against them (see background information) was unconstitutional,unlawful and irregular. As a consequence, Mr. Maseko and Mr. Makhubu werereleased on the same day.

However, on April 7, Justice Michael Ramodibedi, along with the Officeof the Director of Public Prosecutions, the Attorney's General Office and theSwaziland Government, appealed against the decision of Justice Dlamini. Thisappeal is currently pending.

On April 9, 2014, Justice Simelane subsequently issued a ruling statingthat the April-7 appealhad automatically suspended the April-6 decision to free the two defenders, andthat as a consequence they should be re-arrested. Both are currently detainedin the provisional detention centre of Sidwashini, Mbabane.

On the morning of April 10, 2014 a first hearing took place and theprovisional detention of the two defenders was extended until the next hearingscheduled on April 14, 2014. During the hearing, Mr. Maseko and Mr. Makhubu'slawyers argued that the initial arrest warrant issued against their clients onMarch 17 was irregular, and that their were unlawfully kept in detention.Justice Simelane reportedly addressed Mr. Maseko and Mr. Makhubu verydisrespectfully and decided to report the matter to a pre-trial to be held onApril 11, and to a next trial hearing on April 14.

The Observatory calls upon the Swazi authorities torelease Messrs. Thulani Maseko and Mr. Bheki Makhubu immediately andunconditionally, and to put an end to the continued judicial harassment againstthem, as it only aims at sanctioning their human rights activities.

Backgroundinformation:

On March 17 and 18, 2014 respectively, Messrs. Thulani Maseko and Mr.Bheki Makhubu were arrested on the basis of a warrant issued by Chief JusticeMichael Ramodibedi, on charges of “scandalising the judiciary” and “contempt ofcourt” following the publication of articles criticising the judicial system.

The charges arise from articles written by Messrs. Thulani Maseko andBheki Makhubu in February and March 2014 in The Nation, in which theyquestioned circumstances surrounding the arrest of government vehicleinspector, Bhantshana Vincent Gwebu and criticized the lack of impartiality ofthe Swazi judicial system[1].

On March 18, 2014, Messrs. Maseko and Makhubu, who were expected toappear in court, were subjected to a private hearing in the Chief JusticeRamodibedi’s chambers, in violation of Section 21 of the Constitution of theKingdom of Swaziland, which guarantees the right to a fair trial. The accused'slawyers were not informed that the hearing would take place in the ChiefJustice's chambers and were only present by chance.

They werekept in custody until the second hearing which took place on March 25, 2014.They appeared before the High Court of Mbabane assisted by their lawyers. Theirdetention was extended until the next hearing, which took place on April 1,2014.

On April 1,2014, Messrs. Thulani Maseko and Bheki Makhubu appeared before the High Courtof Mbabane assisted by their lawyers. Their detention was extended for thethird time until the next hearing, scheduled for April 8, 2014. The decision toextend the custody of the two human rights defenders was taken by Chief JusticeMpendulo Simelane, who is also the former High Court Registrar mentioned in thearticles published in The Nation for which the two defenders arecurrently prosecuted. Since he might be summoned to testify in their case, thedefence lawyers of Mr. Maseko and Mr. Makhubu have informed him of their intentto file an application to demand his recusal.

Messrs. Maseko and Makhubu were detained in the provisional detentioncentre of Sidwashini, Mbabane.

On April 4,2014, the accused, through their lawyers, filed an application at the HighCourt where they were seeking a declaratory order on the grounds that thewarrant of arrest issued by the Chief Justice was unconstitutional, unlawfuland irregular. They argued that the High Court does not have powers to issuesame, instead it was a magistrate who issued warrants.

Actionsrequested:

Please write to the authorities in Swaziland, urging them to:

i. Guarantee in all circumstances the physical and psychologicalintegrity of Messrs. Thulani Maseko and BhekiMakhubu, as well as all human rights defenders in Swaziland;

ii. ReleaseMessrs. Thulani Maseko and Bheki Makhubu immediately and unconditionally, since their detention is arbitrary as it only aims at sanctioning theirhuman rights activities;

iii. Put an end to all acts of harassment -including at the judicial level - against Messrs.Thulani Maseko and Bheki Makhubu, and more generally against all human rightsdefenders in Swaziland to ensure thatin all circumstances they carry out their activities without anyhindrances;

iv. Conform with the provisions of the UN Declaration on Human RightsDefenders, adopted by the General Assembly of the United Nations on December 9,1998, especially:

- Article 1, which states that“everyone has the right, individually and in association with others, topromote and to strive for the protection and realisation of human rights andfundamental freedoms at the national and international levels”

- Article 9.3.c which states that“Everyone has the right, individually and in association with others, to offerand provide professionally qualified legal assistance or other relevant adviceand assistance in defending human rights and fundamental freedoms”

- Article 12.2, which provides that“"the State shall take all necessary measures to ensure the protection bythe competent authorities of everyone, individually and in association withothers, against any violence, threats, retaliation, de facto or dejure adverse discrimination, pressure or any other arbitrary action as aconsequence of his or her legitimate exercise of the rights referred to in thepresent Declaration”;

v. Comply with the Declaration of Principles of Freedom of Expression inAfrica, adopted by the African Commission on Human and People's Rights onOctober, 23, 2002, in particular:

- Article II, which provides that ”no one shall be subject to arbitraryinterference with his or her freedom of expression”

- Article IX, which states that“attacks such as (…) intimidation of and threats to media practitioners andother exercising their right to freedom of expression (…) underminesindependent journalism, freedom of expression and the free flow of informationto the public. Statesare under an obligation to take effective measures to prevent such attacks and,when they do occur, to investigatethem, to punish perpetrators and to ensure that victims have access toeffective remedies”.

vi. Respect the Constitution of the Kingdom of Swaziland adopted in2005, notably Article 24 which protects freedom of expression and opinion,including freedom of press and other media, defined as “freedom to holdopinions interference; freedom to receive ideas and information withoutinterference; freedom to communicate ideas and information withoutinterference; and freedom from interference with the correspondence of thatperson”.

vii.More generally, ensure in all circumstancesthe respect for human rights and fundamental freedoms in accordance with inaccordance with the Universal Declaration of Human Rights and withinternational human rights instruments ratified by Swaziland.

Addresses:

· King of Swaziland, Head of State and Chief of Armforces, MSWATI III, Royal Palace, Mbabane, Swaziland. Email: hello@kingofswaziland.com

· PrimeMinister, Mr. Barnabas Sibusiso DLAMINI, Cabinet Offices, Hospital HillP.O. Box 395, Mbabane, SWAZILAND. Fax: +268 2404 3943

· Secretary to Cabinet and Head of the Public Service, Mr. MbusoC. DLAMINI, Fax: +24043943, E-mail: dlaminimb@gov.sz

· Minister of Justice, Senator Mr. Sibusiso SHONGWE, Ministry of Justice Building, 5th Floor,Mhlambanyatsi/Usuthu Link Road, P.O. 924,Mbabane, SWAZILAND. Fax: +268 404 5626

· Acting Principal Secretary to the Ministry of Justice, Mr. Siboniso MASILELA, Tel: +268 404 5159, Email: masilelasib@gov.sz

· AttorneyGeneral, Mr. Majahenkhaba DLAMINI, P.O. Box 578, Mbabane, SWAZILAND. Fax: +2684044796. Email address: matsebulasa@gov.sz

· H.E. Mr. MahlabaAlmon MAMBA, Counsellor, PermanentMission of the Kingdom of Swaziland to the Office of the United Nations inGeneva, Chemin William-Barbey 51, 1292 Chambésy, Geneva, SWITZERLAND. Fax: +4122 758 94 24, Email: swazimission-geneva@dslnets.ch

· H.E. J.M.Nhleko, Ambassador Extraordinary and Plenipotentiary, Head of the Mission;Embassy of the Kingdom of Swaziland, Avenue Winston Churchill 188, 1180Bruxelles, BELGIUM; Email: brussels@swaziembassy.be

Please also write to the diplomatic mission or embassy of Swaziland inyour respective country.

***

Paris-Geneva,April 11, 2014

Kindlyinform us of any action undertaken quoting the code of this appeal in yourreply.

Tocontact the Observatory, call the emergency line:

· E-mail:Appeals@fidh-omct.org

· Teland fax FIDH + 33 (0) 1 43 55 20 11 / +33 1 43 55 18 80

· Tel and fax OMCT + 41 (0) 22 809 4939 / + 41 22 809 49 29

[1] According to Mr. Makhubu, JusticeRamodibedi arrested Chief Justice Gwebu without bringing any formal chargesagainst him, denied him access to a lawyer, and deprived him from theopportunity to seek release on bail.