On Tuesday 1 April 2014, Thulani Maseko and Bheki Makhubu were remanded back into custody for another seven days. The pair, who are facing contempt of court charges relating to articles criticising the Swazi judiciary, had already been in detention for fifteen days. This pre-trial detention is in relation to a crime that, in Swaziland seldom, if ever, leads to a jail sentence after conviction.
The case has brought the independence of the Swazi judiciary, and the conduct of its Chief Justice, Michael Ramodibedi, into sharp international focus. The charges Maseko and Makhubu face are inextricably related to questions surrounding the judiciary, because of the nature of the articles that led to their arrest. However, the response to the articles and the handling of proceedings has thrown light on the serious defects in the administration of justice in the country.
While Judge Mpendulo Simelane, as the presiding Judge, is the face of the judiciary in these proceedings, the Chief Justice has been playing a decisive role behind the scenes – playing the part of complainant, prosecutor and judge. Ramodibedi, along with Simelane, was mentioned in the articles, and so both are potential complainants or witnesses in the contempt of court proceedings. After their arrests on 17 and 18 March, Maseko and Makhubu were brought before Ramodibedi in his chambers who remanded them into custody, off his own bat and without request from the prosecution.
But the concerns in this case go beyond the Chief Justice. Both Maseko and Makhubu have brought applications in this case which demonstrate the hurdles the two face. After applying for bail Makhubu instituted recusal proceedings against Simelane, arguing that his interest in the case by having been mentioned in the articles should preclude him from hearing the bail application. Maseko has launched an application that seeks the review and setting aside of the arrest warrant and indictment, as well as a declaration that his detention is unlawful and irregular.
Maseko has argued that the correct procedure was not followed in the issuing of the arrest warrant and indictment, or in allowing the Chief Justice, and not a Magistrates Court, to order his remand. He cites two rights protected by the Swazi Constitution that have been infringed by his detention: his right to a fair and speedy hearing; and his right to liberty.
Both Ramodibedi and Simelane have described contempt of court proceedings as sue generis, and have explained that this means that the Court is at liberty to adopt any suitable position. This is simply not true. Contempt of court is a common law criminal offence, and so there is no reason to follow any procedure other than that followed in every other criminal matter.
The heavy-handed manner in which the judiciary has responded to criticism demonstrates an utter disregard for the right to freedom of expression, and the rule of law. The lack of adherence to the law and Constitution in respect of accused and detained persons, and the weekly court appearances which have served as mere rubber stamps to detention without trial, amounts to a misuse of judicial structure. The illusion has been created of a functioning independent and fair judiciary, while the reality is that judicial officers – including the Chief Justice – are using their position to push personal agendas. The tacit support of this by their superiors has guaranteed that they face no censure for this, and act without impunity.
The treatment of Maseko and Makhubu ensures that international coverage of Swaziland will continue to depict this tiny kingdom as one fit for ridicule – further pushing away potential investors, tourists and backers. The personal vendettas waged against those who speak out against the government harm more than just the individuals who are detained – they threaten the economic health of the country and put the survival of ordinary Swazis at risk.