SWAZILAND HIGH COURT RESORTS TO JURISPRUDENTIAL GYMNASTICS TO JUSTIFY CONVICTION OF EDITOR

Salc : Anneke Meerkotter

Using trumped up criminal charges to silence dissent has become a worrying trend in southern Africa. Two weeks ago the Zambian police arrested an activist on an outdated vagrancy-related charge when he spoke in favour of gay rights on television. A month earlier, the Zimbabwean police arrested human rights lawyer, Beatrice Mtetwa, for defending activists. The ease with which police are able to use criminal laws to arrest and harass activists, is often a sign of the rule of law disintegrating.  In such cases, one tool is to resort to the courts to secure the release of the person or have the arrest declared unlawful. This was the case in Zimbabwe, when lawyers sought Beatrice Mtetwa’s release through the courts. The judge who ordered her release now faces the wrath of the Zimbabwean government. However, when the courts become complicit in the punishment of dissenting voices, the rule of law is in serious jeopardy.

This is the case in Swaziland. On 17 April 2013, the Swaziland High Court held that the editor of the Nation, a local magazine, and its publishers, were guilty of contempt of court. Judicial independence and media freedom has been under attack in Swaziland for quite some time. In February 2012, the police sought to arrest a newspaper editor who interviewed dissenting voices, whilst the government dismissedone of its judges in 2011 for failing to toe the line.

The case for contempt of court against the editor of the Nation, Bheki Makhubu, was based on two separate articles: In November 2009, he criticised the Supreme Court’s reluctance to apply the Swaziland Constitution in its decisions, whilst in February 2010, he wrote an article which was openly critical of the Chief Justice. The High Court took particular offence when he equated the Chief Justice’s referral to himself at an event as “Makhulu Baas”, to the behaviour of a “street punk”. The editor claimed that the intention of the articles were not to bring the judiciary into disrepute, but to ensure that judges perform according to their constitutionally mandate.

Interestingly, the High Court’s 91-page judgment is replete with references to comparative constitutional case law. Perhaps the court was trying to make the point that it is indeed fully aware of constitutional jurisprudence. The judgment straddles between explaining the history and rationale behind the offence of contempt of court, and the justifications for limiting freedom of expression to protect the administration of justice.

It is indeed a difficult question for any court to consider. The purpose of the contempt of court offence, as acknowledged in the judgment, is not to shield the judiciary or judicial system from criticism.  The offence of contempt of court requires that the conduct complained of must have been calculated to undermine public confidence in the proper functioning of the courts. However, it can be argued that, even if a sector of the public agrees with the editor that the Supreme Court or the Chief Justice’s conduct or judgments are worrying, it is likely that the acts of the Supreme Court and Chief Justice inspired this lack of confidence, not the reporting thereof.

The judgment cites case law which recognises that the offence should only be invoked if the contempt of court was serious and it was in the public interest to do so. The judgment acknowledges that there are opponents to the use of this offence, who contend that it is pure speculation that criticism of the courts leads to a lack of public confidence and that the public is mature enough to consider the merits of such comments. The judge further quotes United States case law which dismissed the offence of scandalising the court as an offence of “English foolishness” which interfered with the right to freedom of expression. Finally, the judgment makes extensive reference to South African case law which held that vocal public scrutiny of the courts constitutes a “democratic check on the judiciary”.

Despite this extensive consideration of constitutional jurisprudence, the judge found the respondents guilty of contempt of court without any evidence that the offending articles really were likely to damage the administration of justice. The sentence is unusually severe, fining the respondents to E200 000 each. Half of the total fine of E400 000 was suspended for 5 years, but the remaining E200 000 (USD 21 503) had to be paid by 23 April 2013, failing which the editor would be committed to prison for two years. On 22 April 2013, the editor and publisher noted an appeal against the conviction and sentence, thus halting the execution of the sentence.

Criminalising writing which ostensibly scandalise the court, falls in a similar category as attempts in the region to criminalise insults against a president or monarchy. It is worrying that governments in the region are resorting to criminal law to silence any views which are critical of the executive or judiciary. No doubt this judgment will act as a strong deterrent to any person who wants to say anything negative about the Swaziland judiciary in the future. Mission accomplished.