That has to be the main conclusion after a High Court judgement that freed Nation magazine editor, Bheki Makhubu and human rights lawyer Thulani Maseko from jail on Sunday (6 April 2014).
The two men had been sent to jail on remand to await trial on contempt of court charges. This followed publication of articles in the Nation that were critical of CJ Ramodibedi.
Makhubu and Maseko went to the Swazi High Court to demand their release because they had illegally been arrested and sent to jail. They argued that CJ Ramodibedi had unlawfully issued a summons for their arrest and then heard the case behind closed doors in chambers, without lawyers present. They argued that he had no power to send them to jail and that no law officer had requested they be imprisoned.
High Court Judge Mumcy Dlamini agreed with them and in a judgement that took her less than a minute to read out, she released the men. They had been in jail for 20 days.
In her written judgement, Dlamini said that CJ Ramodibedi had sent the men to jail without hearing arguments or submissions why they should not be.
She added that the law in Swaziland stated that it was a magistrate’s job to issue arrest warrants.
She said the affidavits used to support the warrant of arrest were ‘incompetent in law’ because they were raised by the Chief Justice’s clerk, who was representing the Chief Justice. The Chief Justice claimed to be injured by the contents of the articles the two accused men wrote.
Judge Dlamini said, ‘A person attesting an affidavit must be completely objective and have no interest of any kind in the contents or input of that affidavit.’
She went on to say that the hearing should not have been heard in the Chief Justice’s chambers.
‘A matter of such magnitude viz. incarceration of persons ought to have been deliberated fully in an open court.’
Dlamini added that she did not think Chief Justice Ramodibedi would have issued the arrest warrant and acted the way he did if he had known these things.
Which begs these questions: does the Chief Justice of Swaziland not know basic law, or is it that he knows the law, but chooses not to apply it to his critics?
AMBASSADORS SUPPORT JAILED WRITERS