In Swaziland the case against human rights lawyer, Thulani Maseko, and The Nation magazine editor, Bheki Makhubu, has attracted international attention, drawing comment and condemnation from international agencies such as Amnesty International and the American Bar Association. After publishing articles criticising the judiciary, Maseko and Makhubu were charged with contempt of court and arrested. They have been in detention since 18 March 2014 – bar a few days when they were released following a court order, before fresh warrants of arrest were issued and enforced. The manner in which the case has been handled certainly deserves censure, but their case should not be seen as an isolated incident. It is symptomatic of much larger governance issues in the country, and a general collapse of the rule of law.
The rule of law is a principle in governance which means that all people – including those in authority – are subject to the law. Under this principle the law is supreme, setting out acceptable limits for behaviour and safeguarding against abuse of power. The separation of power between the legislative, executive and judicial arms of government ensures that power cannot be concentrated in one person or sphere, and provides inbuilt checks on the exercise of power. For the rule of law to be effective a society requires an independent judiciary – one which enforces the laws with certainty and clarity, and applies the law equally to all individuals and institutions. Without the accountability the rule of law provides, and the certainty of law that flows from it, societies lose the protection against tyranny that democracy is supposed to provide. Although Swaziland remains a monarchy, its Constitution recognises the independence of the judiciary and prohibits any interference by the Crown or Parliament in the exercise of judicial functions. In a system where a great deal of executive power is concentrated in the office of the King, the role of the judiciary in holding the other branches of government to account is especially important.
The independence of the judicial system is a key indicator of a society’s respect for the rule of law, and in Swaziland recent events in and around the courts have highlighted just how grave the rule of law crisis is.
The judiciary under the current Chief Justice has become a puppet of King Mswati III, and the courts, which are supposed to hold the other branches of government to account, instead further his interests and protect his actions.
In 2011 the Chief Justice issued an official practice directive that no courts could entertain any legal suits filed against the King and his office. This directive shields the King from constitutional challenges brought against him as head of government, as well as actions brought against him in his personal capacity. This allows him to act with impunity, and completely removed any mechanism for accountability.
Later that year, one of the few independent thinking judges on the High Court bench, Judge Thomas Masuku, was impeached and removed from his position. Without Masuku the number of judges willing to apply the law impartially has been reduced, and as the Chief Justice himself allocates all cases before the High Court, he is able to ensure that any politically sensitive matters are given to judges he knows will rule in the government’s favour.
The capacity of the judiciary to be used as a mechanism to punish those who dare to speak out is clearly demonstrated in the Maseko and Makhubu case. The offence of contempt of court exists to protect the integrity of the judiciary and prevent interference with justice, and not to prevent legitimate criticism of judges and their conduct. However, the range of conduct covered by the offence appears to have been widened, and is being used in Swaziland to shield judges from criticism. This broad interpretation has removed any certainty individuals may have over what they may or may not say about the judiciary.
The case has also resulted in a multitude of procedural concerns, including around the denial of access to legal representation, the issuance of irregular arrest warrants, and the propensity to hold hearings in chambers rather than in open court. In addition, despite being mentioned in the articles accused of being contemptuous, and consequently a potential complainant and witness, presiding Judge Mpendulo Simelane refused to recuse himself from hearing the matter, and refused to provide reasons for this decision. Judge Simelane also ordered that the trial proceed despite various interlocutory appeals pending. Throughout this trial it has been apparent that the law is not being applied equally and fairly to those who are in opposition to authority.
The articles that Maseko and Makhubu wrote were heavily critical of the Chief Justice and he appears to have taken them as a personal affront. But it is the collapse of the rule of law in Swaziland that has enabled the Chief Justice to use the judicial system to pursue personal vendettas against Maseko and Makhubu. Without addressing the structural problems in Swaziland that have allowed a case like Maseko and Makhubu’s to occur, there is little chance that other individuals who express unfavourable opinions in the future will be given the protection they deserve.
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