Open Society Initiative for Southern Africa (OSISA)- Johannesburg
By Mantoe Phakathi, 3 May 2013
Judiciary Joins Attack On Media
The recent conviction of the Nation Magazine and its editor, Bheki Makhubu, for criminal contempt of court proves just how desperate King Mswati's regime is to maintain the status quo in Swaziland. High Court Judge Bheki Maphalala issued the verdict that sent shock waves throughout the Kingdom and beyond on April 17 based on two articles the magazine published in 2009 criticising the judiciary and the Chief Justice, Michael Ramodibedi.
"A sad day for media freedom in Swaziland," commented Vuyisile Hlatshwayo, the Media Institute for Southern Africa-Swaziland director. He could well have said 'yet another' sad day for media freedom in Swaziland - since this is just the latest in a string of (largely successful) attempts to muzzle the media.
The eight-year old Constitution supposedly guarantees basic human rights but the government continues to prevent political parties from participating in the political life of the nation and has continued to control and censor the press. And unfortunately, the judiciary has now come to the party - and sided with the regime rather than the citizens.
The government - through the Attorney General, Majahenkhaba Dlamini - took the magazine and its editor to court way back in 2010 alleging that the two articles in question "scandalised the courts" and were a "scurrilous attack on the Chief Justice."
And the first article was critical of the Supreme Court for a controversial decision that ruled against the participation of political parties in elections and upheld the Tinkhundla system, which calls for candidates to contest elections only as individuals. Crucially, the Court observed that the right to freedom of assembly and association were guaranteed by the Constitution and that they allowed for the formation of political parties - but ruled that they still cannot contest for power.
While the judges felt that democracy - like beauty - is "in the eye of the beholder", Makhubu felt that their judgment was not only unconstitutional but that it would also contribute to maintaining a repressive society in Swaziland. And the decision has certainly haunted political parties since the government now refers to it to block their participation in the elections.
And when Swazis then seek another way to air their feelings - by taking to the streets to peacefully protest or indeed to churches to peacefully pray - they are met with the strongest police brutality and the full force of the 'law'. And of course, they cannot easily run to the media to vent their frustrations because the government has deliberately sought to close that space.
Meantime, in the second article Makhubu criticised Ramodibedi for publicly reprimanding judges of the High Court for speaking to the media calling himself the Makhulu Baas (the big boss) - a phrase that Makhubu said the Chief Justice had "dug from the cesspit of Apartheid South Africa." Strong words - but hardly scurrilous.
The defence argued that the editor's work was covered by the right to freedom of expression, "which includes freedom of the press and other media," that is enshrined in Section 24 of the Constitution. However, the judges did not agree and handed down a draconian sentence.
There is no doubt that this ruling will have a huge impact on the media in Swaziland - and on people's right to know what their government and judiciary are doing. The Nation was the last remaining vestige of 'free expression' in the country where both the state-controlled broadcast media and newspapers are largely censored by the government - or self-censored.
One of the two national newspapers, The Swazi Observer, is a subsidiary of the royal-owned company, Tibiyo Taka Ngwane, while the managing editor of the privately-owned Times of Swaziland is also serving in the King's Office and travelling with the monarch on his various international trips. And when he is travelling with the king, he writes articles for both his group of newspapers and bizarrely (well it would be bizarre anywhere else) for its competitor, The Swazi Observer - something that is surely unheard of in the history of journalism.
Maphalala issued the verdict 14 months after he had promised to do so - and coincidentally or not about a week after The Nation published an article by one of its contributors and human rights lawyer, Thulani Maseko, who questioned the non-delivery of the judgment. Maseko further criticised the judiciary for what he called "the greatest betrayal of democracy by the courts" because of its support for the continued consolidation of absolutism.
Sadly, the judiciary does appear to have decided to defend King Mswati's regime rather than the constitution - and through it the rights of every Swazi. It was already almost impossible to win a case against government either at the High Court or Supreme Court. And this latest ruling shows that the courts can also be used by the government to silence critics.
Without a doubt, the Nation Magazine and its editor, Bheki Makhubu, will not be the last victims of Swaziland's increasingly partisan judiciary. Indeed, by undermining basic freedoms, the courts are victimising every Swazi.
PRESS FREEDOM AND THE NATION