URGENT APPEAL - THE OBSERVATORY
New information
SWZ 001 / 0314 / OBS 023.6
Release / Dismissal of charges
Swaziland
July 3, 2015
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.
New information :
The Observatory has been informed about the release of Mr. Thulani Rudolf Maseko, a prominent human rights lawyer, senior member of Lawyers for Human Rights Swaziland and the Southern Africa Human Rights Defenders Network, as well as of Mr. Bheki Makhubu, a columnist and 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 had been wrongly convicted and ordered their immediate release.
The two defenders, detained since April 9, 2014, had been 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 of the judicial harassment against Messrs. Thulani Maseko and Bheki Makhubu, and thanks all the persons, institutions and organisations who intervened in their favour. However, the Observatory deeply regrets that the two have been arbitrarily detained for nearly 15 months.
Background information :
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 systemAccording 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..
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.
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 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.
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.
On April 6, High Court Judge Mumcy Dlamini 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 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.
On April 9, 2014, Justice Simelane subsequently issued a ruling stating that the April-7 appealhad automatically suspended the April-6 decision to free the two defenders, and that as a consequence they should be re-arrested. Both were held overnight at the Mbabane police station before being detained in the provisional detention centre of Sidwashini, Mbabane.
On April 11, 2014, a bail application was filed by Messrs. Maseko and Makhubu’s lawyers, which was dismissed by Justice Simelane on May 6, 2014.
On April 14, 2014, oral arguments were presented by Messrs Maseko and Makhubu’s lawyers concerning the application for the recusal of Justice Simelane. Despite the obvious conflict of interests and a number of irregular incidents proving a bias against the two defenders, Justice Simelane himself rejected the application demanding his recusal. During the hearing, relatives and 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 bigger courtroom, Justice Simelane systematically refused to move the hearing. At the same time, police forces surrounded and searched Mr. Makhubu’s residence.
On April 22, the trial resumed and the defenders’ lawyers asked the Court to present the reasons for the dismissal of recusal application of Justice Simelane, in order to ascertain on which grounds they could 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 pleaded not guilty for the charges of contempt to court. Justice Simelane insisted upon Mr. 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 his judgement, Judge Simelane rejected almost all the evidence submitted by the defence and its witnesses. He also said that the Swaziland Constitution does not grant absolute rights for freedom of expression and deferred his judgement on the defendants’ sentencing to a later date.
On July 25, 2014, Judge Mpendulo Simelane sentenced Messrs. Bheki Makhubu and Thulani Maseko to two years of prison without benefit of bail. He also fined The Nation and independent publishers to SZL 100,000 (approximately EUR 7,080) payable within one month. This followed the writing and publication in The Nation of articles critical of the Swazi judiciary and in particular of Chief Justice Ramodibedi. CThe Observatory notes that conviction for “contempt of court” ordinarily carries a 30-day sentence or a fine of 2,200 Euros. The judge added that the sentence should be such that “it serves as a deterrent to others, Mr. Maseko being a disgrace to the legal profession ”.
The Observatory wishes to thank all of the individuals and organizations that have taking action as a response to the urgent appeal and have written to the Swazi authorities on behalf of Messrs. Maseko and Makhubu. No further action is currently required on your part concerning this case.
***
Paris-Geneva, July 3, 2015
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.