The conviction and sentencing of two Swazi activists was a done deal before they walked into court on charges of contempt. However worrying the conviction of journalist Bheki Makhubu and human rights lawyer Thulani Maseko may be, it is not the worst of it – not by some measure. Mr Makhubu, editor of local newspaper The Nation, criticised Chief Justice Michael Ramodibedi in an opinion piece over the judge’s involvement in the arrest of a government official. Mr Maseko, a prominent human rights lawyer and columnist for The Nation, also criticised the chief justice’s actions in an impassioned opinion piece that called for Swaziland to uphold the rule of law. The two were subsequently charged with contempt of court, disrespecting the chief justice and bringing the judicial system into disrepute. After a sham trial, the newly-appointed high court judge Mpendulo Simelane – keen to please his masters – agreed with the crown prosecution. The judge found the men guilty and sentenced the duo to two years in jail without the option of a fine.
Such treatment of political activists in Swaziland constitutes nothing fundamentally new – there is no rule of law in Swaziland, no freedom of expression, and no tolerance of any criticism (even implied) of the monarch King Mswati III. So the fate of the two, however harsh, was a foregone conclusion.
It was left to presiding Judge Simelane to go above and beyond previous manipulations and declare in his judgement that, as the king was the supreme authority in the country, and the legal system and its officials were implicitly appointed by him, said officials could not under any circumstances be criticised for anything they did or did not do. Their rulings are effectively done or not done in the name of the monarch and are therefore absolute and beyond criticism or redress. He went further (if that was vaguely possible, given the scope of his previous comments) and said there was no absolute right to freedom of expression in Swaziland and that, in any event, Section 24 of Swaziland’s constitution – which includes guarantees of freedom of expression and freedom of the press – can be overridden by judges.
Unless sanity prevails and some mechanism of appeal can reverse this draconian judgement – partly for the sake of the jailed men, but even more so for what it could mean for the country – Swaziland has regressed to medieval governance by divine right with dire consequences for its people. If Section 24 of the constitution can be overridden by judges so too can the entire document – it was always a bit of a waste of paper, but in light of this judgement it becomes a legal weapon to crush dissent of any and all kind. The extreme limit of this judgement implies that members of the judiciary are above the law, not only above criticism.
WHY DO WE CARE? We have made the point before that political dissent and the potential for an uprising in Swaziland are limited by the urban-rural divide. The majority rural population is largely supportive of the king, the monarchy, tribal tradition and customs and is not likely to revolt anytime soon. In urban areas, however, it is a different prospect, and as the draconian net draws ever tighter over any form of dissent or protest or challenge, the possibility of a violent uprising cannot be disregarded. Beyond the injustice to two men, this latest judicial decision takes Swaziland back to the Middle Ages. In addition, from next year the country loses its African Growth and Opportunity Act (AGOA) access with fresh unemployment and economic problems. The future grows a little darker by the day.
Analyst: Gary van Staden