On Tuesday in the Swazi Supreme Court, veteran judge Jacobus Annandale commented that the day in court was probably one of the most remarkable in his career, and he aligned himself with the order of the court with “great joy and pride”. The order he referred to was one upholding the appeal by Thulani Maseko and Bheki Makhubu against their conviction on contempt of court charges, and ordering their immediate release.
Maseko and Makhubu had been charged with contempt of court in 2014 after they criticised then Chief Justice Michael Ramodibedi in two articles published by The Nation magazine. The successful appeal meant that the pair were acquitted of all charges, and could go home to their families after spending fifteen months in jail.
Tuesday’s proceedings were a remarkable turn of events. In the appeal hearing, the prosecutor began proceedings by indicating that he would not be opposing the appeal on the basis that the Director of Public Prosecutions believed that the conviction was “unsupportable”. He accepted that the prosecution had failed to make out a case in the High Court, and stated that the application for the High Court judge’s recusal on the grounds that he was personally connected to the case should have been granted. The Supreme Court hearing was an acknowledgment of the deficient legal reasoning adopted by the High Court, and a vindication for Maseko and Makhubu whose articles sought to expose precisely that type of conduct.
Maseko and Makhubu had taken the decision to speak out and criticise the judiciary in order to expose how Chief Justice Ramodibedi’s conduct was deeply immoral and unlawful, and that he needed to be held to account. After their articles were published last January and February, the authorities acted swiftly and decisively to suppress Maseko and Makhubu: the pair was immediately charged with contempt of court, detained and denied bail; the Chief Justice appointed one of his most pliant judges, Mpendulo Simelane to hear the criminal trial despite that judge’s personal connections to the case; and Judge Simelane issued the guilty verdict so desperately sought by the Chief Justice, despite a lack of evidence and an incorrect application of the law.
For over a year it seemed that the injustices in Maseko and Makhubu’s case would be overlooked, and that there would be no legal recourse available to them. However, the turning point came when the Chief Justice appointed Judge Simelane to preside over a case in which he was suing the Swaziland Revenue Service. When Judge Simelene, predictably, found in favour of the Chief Justice, it set off a series of events which culminated in the Anti-Corruption Commission issuing arrest warrants for Chief Justice Ramodibedi and Judge Simelane. Judge Simelane was arrested and released on bail, and, after weeks of playing cat-and-mouse, Ramodibedi was sacked as Chief Justice by the King.
The charge sheet for Ramodibedi reads like a litany of all the classic cases of judicial misconduct, from appointing unqualified judges to financial corruption. The conduct described in this charge sheet lays bare how powerful he was and how much freedom he was given in his leadership of the Swazi judiciary.
And so, while Maseko and Makhubu’s appeal was a welcome victory for them and their families, it is hard to ignore the realisation that this can be seen only as the first step in securing the integrity of the judiciary. The Supreme Court and the Director of Public Prosecutions took an important step this week in recognising and remedying one of the injustices of Ramodibedi’s time as Chief Justice. But Swaziland now needs them to continue acting decisively and proactively to protect the institution of the judiciary and to ensure that all cases are adjudicated fairly and without undue influence. The Swazi legal system has much to learn from Maseko and Makhubu, who spoke truth to power when doing so came at great personal cost.