The Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), has received new information and requests your urgent intervention in the following situation in Swaziland.
According to the information received, on April 9, 2014, Messrs. Thulani Maseko and Bheki Makhubu were re-arrested following the decision of Justice Simelane to suspend the judgment that had led to their release on April 6. Both were held overnight at the Mbabane police station.
On April 6, High Court Judge Mumcy Dlamini had set aside the arrest warrant of Mr. Maseko and Mr. Makhubu, following an application lodged by the two defenders’ lawyers seeking a declaratory order that the March-17 arrest warrant issued against them (see background information) was unconstitutional, unlawful and irregular. As a consequence, Mr. Maseko and Mr. Makhubu were released on the same day.
However, on April 7, Justice Michael Ramodibedi, along with the Office of the Director of Public Prosecutions, the Attorney’s General Office and the Swaziland Government, appealed against the decision of Justice Dlamini. This appeal is currently pending.
On April 9, 2014, Justice Simelane subsequently issued a ruling stating that the April-7 appeal had automatically suspended the April-6 decision to free the two defenders, and that as a consequence they should be re-arrested. Both are currently detained in the provisional detention centre of Sidwashini, Mbabane.
On the morning of April 10, 2014 a first hearing took place and the provisional detention of the two defenders was extended until the next hearing scheduled on April 14, 2014. During the hearing, Mr. Maseko and Mr. Makhubu’s lawyers argued that the initial arrest warrant issued against their clients on March 17 was irregular, and that their were unlawfully kept in detention. Justice Simelane reportedly addressed Mr. Maseko and Mr. Makhubu very disrespectfully and decided to report the matter to a pre-trial to be held on April 11, and to a next trial hearing on April 14.
The Observatory calls upon the Swazi authorities to release Messrs. Thulani Maseko and Mr. Bheki Makhubu immediately and unconditionally, and to put an end to the continued judicial harassment against them, as it only aims at sanctioning their human rights activities.
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 Justice Michael Ramodibedi, on charges of “scandalising the judiciary” and “contempt of court” following the publication of articles criticising the judicial 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 government vehicle inspector, Bhantshana Vincent Gwebu and criticized the lack of impartiality of the Swazi judicial system.
On March 18, 2014, Messrs. Maseko and Makhubu, who were expected to appear in court, were subjected to a private hearing in the Chief Justice Ramodibedi’s chambers, in violation of Section 21 of the Constitution of the Kingdom of Swaziland, which guarantees the right to a fair trial. The accused’s lawyers were not informed that the hearing would take place in the Chief Justice’s chambers and were only present by chance.
They were kept 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. Their detention 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 Court of Mbabane assisted by their lawyers. Their detention was extended for the third time until the next hearing, scheduled for April 8, 2014. The decision to extend the custody of the two human rights defenders was taken by Chief Justice Mpendulo Simelane, who is also the former High Court Registrar mentioned in the articles published in The Nation for which the two defenders are currently prosecuted. Since he might be summoned to testify in their case, the defence lawyers of Mr. Maseko and Mr. Makhubu have informed him of their intent to file an application to demand his recusal.
Messrs. Maseko and Makhubu were detained in the provisional detention centre of Sidwashini, Mbabane.
On April 4, 2014, the accused, through their lawyers, filed an application at the High Court where they were seeking a declaratory order on the grounds that the warrant of arrest issued by the Chief Justice was unconstitutional, unlawful and irregular. They argued that the High Court does not have powers to issue same, 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 psychological integrity of Messrs. Thulani Maseko and Bheki Makhubu, as well as all human rights defenders in Swaziland;
ii. Release Messrs. Thulani Maseko and Bheki Makhubu immediately and unconditionally, since their detention is arbitrary as it only aims at sanctioning their human 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 rights defenders in Swaziland to ensure that in all circumstances they carry out their activities without any hindrances;
iv. Conform with the provisions of the UN Declaration on Human Rights Defenders, 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, to promote and to strive for the protection and realisation of human rights and fundamental 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 offer and provide professionally qualified legal assistance or other relevant advice and 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 by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”;
v. Comply with the Declaration of Principles of Freedom of Expression in Africa, adopted by the African Commission on Human and People’s Rights on October, 23, 2002, in particular:
Article II, which provides that ”no one shall be subject to arbitrary interference with his or her freedom of expression”
Article IX, which states that “attacks such as (…) intimidation of and threats to media practitioners and other exercising their right to freedom of expression (…) undermines independent journalism, freedom of expression and the free flow of information to the public. States are under an obligation to take effective measures to prevent such attacks and, when they do occur, to investigate them, to punish perpetrators and to ensure that victims have access to effective remedies”.
vi. Respect the Constitution of the Kingdom of Swaziland adopted in 2005, notably Article 24 which protects freedom of expression and opinion, including freedom of press and other media, defined as “freedom to hold opinions interference; freedom to receive ideas and information without interference; freedom to communicate ideas and information without interference; and freedom from interference with the correspondence of that person”.
vii. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with in accordance with the Universal Declaration of Human Rights and with international human rights instruments ratified by Swaziland.
· King of Swaziland, Head of State and Chief of Arm forces, MSWATI III, Royal Palace, Mbabane, Swaziland. Email: email@example.com
· Prime Minister, Mr. Barnabas Sibusiso DLAMINI, Cabinet Offices, Hospital Hill P.O. Box 395, Mbabane, SWAZILAND. Fax: +268 2404 3943
· Secretary to Cabinet and Head of the Public Service, Mr. Mbuso C. 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
· Attorney General, Mr. Majahenkhaba DLAMINI, P.O. Box 578, Mbabane, SWAZILAND. Fax: +268 4044796. Email address: firstname.lastname@example.org
· H.E. Mr. Mahlaba Almon MAMBA, Counsellor, Permanent Mission of the Kingdom of Swaziland to the Office of the United Nations in Geneva, Chemin William-Barbey 51, 1292 Chambésy, Geneva, SWITZERLAND. Fax: +41 22 758 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, 1180 Bruxelles, BELGIUM; Email: firstname.lastname@example.org
Please also write to the diplomatic mission or embassy of Swaziland in your respective country.
Paris-Geneva, April 11, 2014
 According to Mr. Makhubu, Justice Ramodibedi arrested Chief Justice Gwebu without bringing any formal charges against him, denied him access to a lawyer, and deprived him from the opportunity to seek release on bail.