PEN SA Says Unwarranted Prison Sentences on Swazi Editor and Lawyer a Massive Blow to Freedom of Expression and Journalism

05 Aug 2014

PEN South Africa calls on all PEN chapters to join the international outrage and protest that is mounting against the sentencing by the Mbabane High Court in Swaziland of Bheki Makhubu, editor of the independent news magazine, The Nation, and human rights lawyer, Thulani Maseko, to two years’ imprisonment without the option of a fine after being found guilty of “scandalising the judiciary”. The sentences were handed down by Judge Mpendulo Simelane on Friday, 25 July.

These men have endured summary arrest and imprisonment for months with their applications for bail being refused for no good reason, a closed court hearing in defiance of the country’s constitution and two trials allegedly for being in contempt of Swaziland’s justice system ending with the harsh jail sentence.

They were arrested in March, this year and their trial was marked by procedural irregularities and violations of their rights, which started with their detention after the closed court hearing on 10 March. Since then they have been unlawfully detained.

In articles in The Nation, the two had criticised the arrest and detention of a government vehicle inspector, Bhantshana Gwebu, in January, this year, after he charged the driver of one of the Supreme Court judges with following an unauthorised route. Judge Simelane argued that writing these articles amounted to interfering with the administration of justice, because the criminal matter was still before court.

However, PEN SA, in common with other media and human rights organisations, maintains that Makhubu and Maseko were legitimately practicing their right to free expression by commenting on the conduct of the judiciary. Their comments certainly did not warrant the contempt of court charges brought against them. Also, Judge Simelane who presided over their case should have been recused because of his personal involvement in the Gwebu case mentioned in the articles.

The second ordeal they faced was their conviction on contempt of court charges on 17 July for separate news articles they published in The Nation criticizing Swaziland’s Chief Justice, Mr Justice Michael Ramodibedi. The Nation and its publisher, Independent Publishers, were fined R50 000 (about US $5 000) each and Makhudu was given a suspended three months’ prison sentence.

PEN SA has noted that the two-year sentence handed down by the court has been interpreted by journalists in Swaziland as intended to send a message to those who seek to criticise the country’s judiciary. National Director Vuyisile Hlatshwayo of the Swaziland Chapter of the Media Institute of Southern Africa has said the judgment “criminalises freedom of expression in Swaziland’’, a claim, he said, “aptly demonstrated by the scathing tone and language of Judge Simelane.

“In his judgment, he makes it loud and clear that the objective of the sentence is to silence like-minded journalists thinking of questioning the conduct of judicial officers. According to this judgment, judges are a God’s gift to the Swazi Nation who cannot do anything wrong in their administration of justice,” Hlatshwayo said.

PEN SA supports the move by the legal representatives of the two men to appeal the conviction and sentence and demands that the men be released on their own recognisances pending the appeal hearing.

PEN SA believes the appeal will succeed if the hearing is conducted in accordance with the Swaziland 2006 Constitution. It believes the conviction and sentences contravene Sections 24 (1) and (2) of the Constitution which provide for freedom of expression and opinion and freedom of the press and other media. They also contravene Section 24 (2) (c) which protects a fundamental right, expressed as “freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons)’’.

PEN SA also argues that though Section 24 (3) sets a limitation on those rights “reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons,” this does not apply in this instance because court proceedings are held in public and thus editorial criticism of the rulings of a judicial officer in such public circumstances is entirely appropriate. It equates with the overturning of a judgment by a superior court after an appeal hearing which implies criticism of the lower court’s judicial officer and which can, and frequently does, contain actual criticism of the judgment of the lower court.

PEN SA draws the attention of the Swaziland government to the outrage and condemnation expressed by journalists and human rights activists throughout the continent and further afield at the court’s treatment of the two men. There is no doubt that this reaction will influence governments in their attitude to Swaziland, especially the United States which is considering removing the trade preferences it has granted Swaziland, such as AGOA.

PEN SA calls for the immediate release of the two men and for the appeal to be held soon. If that is not successful because of the inability of the judiciary to absorb criticism as is the custom in Western democracies the demand is to free the men on other grounds.

PEN SA notes with shock and alarm that the sentences constitute a massive blow to freedom of expression in Swaziland and will have a chilling impact on the work of journalists in that country, not only local Swaziland journalists but those from South Africa and other foreign countries who enter Swaziland to report on developments there.

Raymond Louw
Vice-President, South African PEN