Release of Mr. Thulani Rudolf Maseko and Mr. Bheki Makhubu

New information
SWZ 001 / 0314 / OBS 023.6
Release /Dismissal of charges
Swaziland
July 3, 2015

The Observatory for the Protection of Human RightsDefenders, a joint programme of the International Federation for Human Rights(FIDH) and the World Organisation Against Torture (OMCT), has received newinformation and requests your urgent intervention in the following situation inSwaziland.

New information:

The Observatory has been informed about the release ofMr. Thulani Rudolf Maseko, a prominent human rights lawyer, seniormember of Lawyers for Human Rights Swaziland and the Southern Africa HumanRights Defenders Network, as well as of Mr. Bheki Makhubu, a columnistand Editor-in-Chief of The Nation,considered as the sole independent newspaper of the country.

According to the information received, on June 30,2015 the Supreme Court of Swaziland ruled that Messrs. Maseko and Makhubu hadbeen wrongly convicted and ordered their immediate release.

The two defenders, detained since April 9, 2014, hadbeen sentenced to two years in prison without benefit of bail on July 25, 2014(see background information).

The Observatory welcomes the release and the end ofthe judicial harassment against Messrs. Thulani Maseko and Bheki Makhubu, andthanks all the persons, institutions and organisations who intervened in theirfavour. However, the Observatory deeply regrets that the two have beenarbitrarily detained for nearly 15 months.

Background information:

On March 17 and 18, 2014 respectively, Messrs. ThulaniMaseko and Mr. Bheki Makhubu were arrested on the basis of a warrant issued byChief Justice Michael Ramodibedi, on charges of “scandalising the judiciary”and “contempt of court” following the publication of articles criticising thejudicial system.

The charges arise from articles written by Messrs.Thulani Maseko and Bheki Makhubu in February and March 2014 in The Nation,in which they questioned circumstances surrounding the arrest of governmentvehicle inspector, Bhantshana Vincent Gwebu and criticized the lack ofimpartiality of the Swazi judicial system[1].

On March 18, 2014, Messrs. Maseko and Makhubu, whowere expected to appear in court, were subjected to a private hearing in theChief Justice Ramodibedi’s chambers, in violation of Section 21 of theConstitution of the Kingdom of Swaziland, which guarantees the right to a fairtrial. The accused's lawyers were not informed that the hearing would takeplace in the Chief Justice's chambers and were only present by chance.

On April 1, 2014,Messrs. Thulani Maseko and Bheki Makhubu appeared before the High Court ofMbabane assisted by their lawyers. Their detention was extended for the thirdtime 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 areprosecuted. Since he might be summoned to testify in their case, the defencelawyers of Mr. Maseko and Mr. Makhubu have informed him of their intent to filean application to demand his recusal.

On April 4, 2014, theaccused, through their lawyers, filed an application at the High Court wherethey were seeking a declaratory order on the grounds that the warrant of arrestissued by the Chief Justice was unconstitutional, unlawful and irregular. Theyargued that the High Court does not have powers to issue same, instead it was amagistrate who issued warrants.

On April 6, High Court Judge Mumcy Dlamini set asidethe arrest warrant of Mr. Maseko and Mr. Makhubu, following an applicationlodged by the two defenders' lawyers seeking a declaratory order that theMarch-17 arrest warrant issued against them was unconstitutional, unlawful andirregular. As a consequence, Mr. Maseko and Mr. Makhubu were released on thesame day.

However, on April 7, Justice Michael Ramodibedi, alongwith the Office of the Director of Public Prosecutions, the Attorney's GeneralOffice and the Swaziland Government, appealed against the decision of JusticeDlamini.

On April 9, 2014, Justice Simelane subsequently issueda ruling stating that the April-7 appeal had automatically suspended the April-6 decision to freethe two defenders, and that as a consequence they should be re-arrested. Bothwere held overnight at the Mbabane police station before being detained in theprovisional detention centre of Sidwashini, Mbabane.

On April 11, 2014, a bail application was filed byMessrs. Maseko and Makhubu's lawyers, which was dismissed by Justice Simelaneon May 6, 2014.

On April 14, 2014, oral arguments were presented byMessrs Maseko and Makhubu's lawyers concerning the application for the recusalof Justice Simelane. Despite the obvious conflict of interests and a number ofirregular incidents proving a bias against the two defenders, Justice Simelanehimself rejected the application demanding his recusal. During the hearing,relatives and supporters of the two defenders were barred access from theCourtroom. Despite Mr. Maseko and Mr. Makhubu's attempts to move the hearing toa bigger courtroom, Justice Simelane systematically refused to move thehearing. At the same time, police forces surrounded and searched Mr. Makhubu'sresidence.

On April 22, the trial resumed and the defenders'lawyers asked the Court to present the reasons for the dismissal of recusalapplication of Justice Simelane, in order to ascertain on which grounds theycould appeal this decision. However the Court – presided by Justice Simelane –dismissed the request, leaving no possibility to appeal the April-14 decision.

On the same day, Mr. Makhubu and Mr. Maseko pleadednot guilty for the charges of contempt to court. Justice Simelane insisted uponMr. Maseko's pleading for two counts for which he was not indicted, but Mr.Maseko refused.

On July 17, 2014,Messrs. Bheki Makhubu and Thulani Maseko were convicted for “contempt of court”by Swaziland's High Court.

Delivering hisjudgement, Judge Simelane rejected almost all the evidence submitted by thedefence and its witnesses. He also said that the Swaziland Constitution doesnot grant absolute rights for freedom of expression and deferred his judgementon the defendants’ sentencing to a later date.

On July 25, 2014, Judge Mpendulo Simelane sentenced Messrs. BhekiMakhubu and Thulani Maseko to two years of prison without benefit of bail. Healso fined The Nation and independent publishers to SZL 100,000(approximately EUR 7,080) payable within one month. This followed the writingand publication in The Nation of articles critical ofthe Swazi judiciary and in particular of Chief Justice Ramodibedi. CTheObservatory notes that conviction for “contempt of court” ordinarily carries a30-day sentence or a fine of 2,200 Euros. The judge added that the sentenceshould be such that “it serves as a deterrent to others, Mr. Maseko being adisgrace to the legal profession”.

The Observatory wishes to thank all of the individualsand organizations that have taking action as a response to the urgent appealand have written to the Swazi authorities on behalf of Messrs. Maseko andMakhubu. No further action is currently required on your part concerning thiscase.

[1] According to Mr. Makhubu, Justice Ramodibedi arrestedChief Justice Gwebu without bringing any formal charges against him, denied himaccess to a lawyer, and deprived him from the opportunity to seek release onbail.