SWZ 001 /0314 / OBS 023.5
Sentencing /Arbitrary detention
The Observatory for the Protection of Human Rights Defenders, a jointprogramme of the World Organisation Against Torture (OMCT) and theInternational Federation for Human Rights (FIDH), has received new informationand requests your urgent intervention in the following situation in Swaziland.
The Observatory has been informed about the court ruling that sentencedMr. 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 Mr. Bheki Makhubu, a columnist andEditor-in-Chief of The Nation,considered as the sole independent newspaper of the country, to two years ofprison without benefit of bail.
According to the information received, on July 25, 2014, Judge MpenduloSimelane sentenced Messrs. Bheki Makhubu and Thulani Maseko to two years ofprison without benefit of bail. He also fined The Nation and independentpublishers to SZL 100,000 (approximately EUR 7,080) payable within one month.This followed the writing and publication in The Nation ofarticles critical of the Swazi judiciary and in particular of Chief JusticeRamodibedi (see background information).
The Observatory notes that conviction for “contempt of court” ordinarilycarries a 30-day sentence or a fine of 2,200 Euros. The judge added that thesentence should be such that “it serves as a deterrent to others, Mr. Masekobeing a disgrace to the legal profession”.
TheObservatory recalls that the two men have been arbitrarily detained since April9, 2014 and denied bail since then.
The Observatory is concerned by Messrs.Bheki Makhubu and Thulani Maseko’s sentencing, as itonly aims at sanctioning their human rights activities, and calls upon theSwazi authorities to release Messrs. Maseko and Makhubu immediately andunconditionally, and to put an end to the continued judicial harassment againstthem.
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.
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 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, 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.
On April 6, High Court Judge Mumcy Dlamini set aside the arrest warrantof Mr. Maseko and Mr. Makhubu, following an application lodged by the twodefenders' lawyers seeking a declaratory order that the March-17 arrest warrantissued against them was unconstitutional, unlawful and irregular. As aconsequence, Mr. Maseko and Mr. Makhubu were released 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.
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 wereheld overnight at the Mbabane police station before being detained in the provisionaldetention centre of Sidwashini, Mbabane.
On April 11, 2014, a bail application was filed by Messrs. Maseko andMakhubu's lawyers, which was dismissed by Justice Simelane on May 6, 2014.
On April 14, 2014, oral arguments were presented by Messrs Maseko andMakhubu's lawyers concerning the application for the recusal of JusticeSimelane. Despite the obvious conflict of interests and a number of irregularincidents proving a bias against the two defenders, Justice Simelane himselfrejected the application demanding his recusal. During the hearing, relativesand supporters of the two defenders were barred access from the Courtroom.Despite Mr. Maseko and Mr. Makhubu's attempts to move the hearing to a biggercourtroom, Justice Simelane systematically refused to move the hearing. At thesame time, police forces surrounded and searched Mr. Makhubu's residence.
On April 22, the trial resumed and the defenders' lawyers asked theCourt to present the reasons for the dismissal of recusal application ofJustice Simelane, in order to ascertain on which grounds they could appeal thisdecision. However the Court – presided by Justice Simelane – dismissed therequest, leaving no possibility to appeal the April-14 decision.
On the same day, Mr. Makhubu and Mr. Maseko pleaded not guilty for thecharges of contempt to court. Justice Simelane insisted upon Mr. Maseko'spleading 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 ofcourt” by Swaziland's High Court. Delivering his judgement, Judge Simelanerejected almost all the evidence submitted by the defence and its witnesses. Healso said that the Swaziland Constitution does not grant absolute rights forfreedom of expression and deferred his judgement on the defendants’ sentencingto a later date.
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 allcircumstances the respect for human rights and fundamental freedoms inaccordance with in accordance with the Universal Declaration of Human Rightsand with international 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.
Geneva-Paris,July 25, 2014
Kindlyinform us of any action undertaken quoting the code of this appeal in yourreply.
 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.