Remembering Thulani Maseko and Bheki Makhubu — one year on…
Can you remember what you were doing 365 days ago? It was the day after St Patrick’s Day, so that might jog some memories, but for most of us, it was just another day. For Thulani Maseko, Bheki Makhubu and their families, however, March 18 2014 is not a day soon forgotten as it was the day the pair was arrested on contempt of court charges. They have been in detention since then (bar a couple of days in April between when a high court judge ruled that their arrest and detention was unconstitutional and their rearrest), and are now in the middle of a two-year prison sentence following their conviction in July.
Their crime? Writing articles voicing their concern about the conduct of members of the Swazi judiciary after a government vehicle instructor was arrested and summarily detained when he charged a supreme court judge’s driver with following an unauthorised route. The inspector, a government official specifically appointed as part of a drive to eliminate corruption, was charged with contempt of court (the interpretation of this particular offence is extremely broad with often farcical results). He was then allegedly denied legal representation and detained for over a week. Maseko and Makhubu’s concern with the event was not that the inspector was facing charges per se, but that the procedure employed to deal with it smacked of an abuse of power. It was this unease that they wanted to convey to their fellow citizens.
This story perfectly illustrates why freedom of expression, and the associated requirement of a free and independent media, is a cornerstone of democracy. A democratic society values accountability and accountability can only be achieved when the conduct of government officials is visible to the public. The use of criminal sanctions against those who speak out against the government is inimical to free expression, and by extension, to democracy. Maseko and Makhubu’s experience demonstrates how far repressive societies will go to ensure that information that shows them in a bad light remains hidden. And the depressing legacy of their case is how their conviction will serve to stifle criticism – or even commentary – on conduct of the judiciary and other public officials. In fact, the 365 days since Maseko and Makhubu’s arrest have been characterised by increased harassment with a number of other activists facing criminal charges arising out of speeches or publications. These criminal charges have all contributed to a growing culture of fear in Swaziland where journalists and activists hesitate before making unfavourable comments out of fear that they will face arrest.
The treatment of Maseko, Makhubu, and all the other Swazis who have suffered at the hands of the authorities this past year has been in stark contrast to the steps many other African countries have taken to reinforce the importance of a free and open media. In South Africa the Constitutional Court ruled that a judicial report into the 2002 Zimbabwe elections that the South African government had fought to keep secret must be released to the media. The judgment was a victory for the media who had argued that the public had a right to know what conclusions were reached in the report and to understand the executive’s response to those conclusions. The Zambian High Court struck down laws which made it a criminal offence for journalists to publish false news holding that such colonial-era offences had no place in a society with a constitutionally protected right to freedom of expression and an acceptance of the need for an independent media. And the African Court ruled that jail sentences for journalists found guilty of criminal defamation were inconsistent with the African Charter.
And so today, while we remember Maseko, Makhubu, their families, and all the other Swazis behind bars or facing criminal trials because of their courage to speak out against their oppressive regime, let us also remember the positive trends towards greater freedom of expression in Africa. Let us use this opportunity to make a commitment that we will work to ensure that Swaziland is made aware of just how out of sync it is with the rest of Africa and indeed the world.
Caroline James is a freedom of expression lawyer at the Southern Africa Litigation Centre in Johannesburg.