SWZ 001 /0314 / OBS 023.2
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.
The Observatory has been informed by reliable sources about the releaseof Mr. Thulani Rudolf Maseko, a prominent Swazi human rights lawyer,senior member of Lawyers for Human Rights Swaziland and the Southern AfricaHuman Rights Defenders Network, as well as of Mr. Bheki Makhubu, acolumnist and Editor-in-Chief of The Nation, considered as the sole independent newspaper of the country.
According to the information received, on April 6, 2014, High CourtJudge Mumcy Dlamini set aside the warrant of arrest that was issued by ChiefJustice Michael Ramodibedi against the two human rights defenders and thecharges.
The Observatory welcomes the release and the end of the judicialharassment against Messrs. Thulani Maseko and Bheki Makhubu, and thanks all thepersons, institutions and organisations who intervened in their favour.However, the Observatory regrets that the two were arbitrarily detainedfor nearly 20 days.
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.
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.
In April 2013, Mr. Makhubu had already been sentencedon charges of “scandalising the court” to a fine of E400,000 (approximately EUR26,758) by the High Court for publishing articles that criticised the judiciaryof Swaziland (an appeal is pending) and in 2009 Mr. Maseko was charged withcontravening the Sedition and Subversive Activities Act (the case was never broughtto trial).
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 detention centreof 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.
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. 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;
iii. 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”;
iv. Comply with the Declaration of Principles of Freedom of Expressionin Africa, 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 to effectiveremedies”.
v. Respect the Constitution of the Kingdom of Swaziland adopted in 2005,notably Article 24 which protects freedom of expression and opinion, includingfreedom of press and other media, defined as “freedom to hold opinionsinterference; freedom to receive ideas and information without interference;freedom to communicate ideas and information without interference; and freedomfrom interference with the correspondence of that person”.
vi.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.
· King of Swaziland, Head of State and Chief of Armforces, MSWATI III, Royal Palace, Mbabane, Swaziland. Email: email@example.com
· PrimeMinister, Mr. Barnabas Sibusiso DLAMINI, Cabinet Offices, Hospital HillP.O. Box 395, Mbabane, SWAZILAND. Fax:
· Secretary to Cabinet and Head of the Public Service, Mr. MbusoC. DLAMINI, Fax: +24043943, E-mail: firstname.lastname@example.org
· 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: email@example.com
· AttorneyGeneral, Mr. Majahenkhaba DLAMINI, P.O. Box 578, Mbabane, SWAZILAND. Fax: +2684044796. Email address: firstname.lastname@example.org
· 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: email@example.com
· 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: firstname.lastname@example.org
Please also write to the diplomatic mission or embassy of Swaziland inyour respective country.
Paris-Geneva,April 7, 2014
Kindlyinform us of any action undertaken quoting the code of this appeal in yourreply.
Tocontact the Observatory, call the emergency line:
· Teland fax FIDH + 33 (0) 1 43 55 20 11 / +33 1 43 55 18 80
· Teland fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29
 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.