Last week, during a visit to Swaziland, I met with a Swazi lawyer to discuss various cases in which he is defending human rights activists. The meeting was held in Thulani Maseko’s law offices – but the lawyer who should have been occupying those offices was not present. He could not be, as he was serving his 115th day in prison as an awaiting trial prisoner. Maseko, a prominent human rights lawyer, was arrested in March this year, after he wrote an article for The Nation magazine that was critical of the Chief Justice and the Swazi judiciary. He was charged with scandalising the court, a form of contempt of court, and he and his co-accused, The Nation’s editor Bheki Makhubu, were summarily remanded into custody by the Chief Justice. Their various attempts at release have been stymied, and they have been in detention since then – bar three days after a High Court judge declared their arrest and detention unconstitutional and released them, before fresh warrants of arrest were issued by the Chief Justice and they returned to prison.
This case, and the way in which it has been handled, has demonstrated the general political and judicial crisis in Swaziland. It appears to be part of a general crackdown on political dissent, and comes at a time when the United States has withdrawn economic support under their African Growth and Opportunities Act, citing concerns over the use of force to repress freedom of expression and association. But as in any political crisis, although the causes can be found in the corridors of power the effects are felt by ordinary citizens, and although the rule of law is certainly a victim in Swaziland, people like Maseko are the real victims.
Maseko and Makhubu’s arrest and detention have deprived them of their liberty – in the broadest possible sense. Although imprisonment is considered an absolute deprivation of liberty it is justified as punishment for committing a crime, and as a way to protect society from further commission of crimes. Pre-trial detention, however, does not serve that purpose and as it amounts to an infringement of the presumption of innocence, it should only be used as a last resort to ensure the integrity of the trial. There has been no evidence that either Maseko or Makhubu would abscond or interfere with witnesses, and so their detention smacks of retribution and petty vindictiveness.
Their detention has prevented them from working, and the financial toll this has placed on their families has been compounded by the added costs the trial has brought. Maseko and Makhubu have been unable to support their elderly and ill family members, and their family lives have been shattered by the months they have spent away from home.
But the deprivation of their liberty is not limited to the restrictions on their movement, because liberty is far broader than physical freedom. The Oxford English Dictionary defines it as “the state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views”. By arresting Maseko and Makhubu for expressing their views on the conduct of the judiciary, the Swazi authorities have limited not only their liberty to move freely, but also to speak their mind – and this deprivation is arguably more insidious than physical imprisonment. The state has used the criminal justice system to silence dissenters, and to prevent them reporting on and airing their thoughts on the conduct of those in power. Not only is this harmful to broader society, it is a form of censorship, which suffocates individuals who know that their thoughts and words are policed.
Sitting in Maseko’s office last week the human cost of detention was laid bare. His legal textbooks and law reports that had lain untouched for months are representative of his work that has stagnated, and the family pictures and degree certificates on the walls a poignant reminder of the person who has become the object of the state’s ire. And so, while we focus on the constitutional rights that have been trampled on in Swaziland in recent months, we cannot afford to forget that the holders of those rights are real people, with real families and real responsibilities. And our own liberty to speak out freely gives us the power and obligation to speak out for those who no longer can.
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