Bheki Makhubu, the editor of the Nation magazine in Swaziland, faces two years in jail if he cannot
pay a fine of E200,000 (US$22,000). The Swaziland High Court judged two
articles he wrote for the magazine were in contempt of the court.
Here are extracts from the articles complained of. They are
taken from the official transcript of the High Court ruling. Click here for the
complete document.
The first article appeared in the Nation in November 2009 under the heading ‘Will the judiciary come
to the party?’
(1)
The Judiciary despite being the custodian
of the ideals of a Constitutional State, has yet to show its hand and join the
party towards creating a society whose values are based on the ideals of the
rule of law.
(2)
Could the appointment of the four eminent
jurists signal a change of how the judiciary seeks to participate in our
changing society.
(3)
The main reason why the judiciary has been
slow to adapt to the values brought about by the new order of 2005 has to do
with the events of November 28, 2002 when the government, led by the current
Prime Minister overthrew a decision of the Court of Appeal which sought to stop
the eviction of some Swazis from Macetjeni and kaMkhweli.
(4)
When
Jan Sithole, Mario Masuku and a group of prodemocracy organisations,
.... approached the Supreme Court early this year to ask for the judges’
opinion on whether the Constitution allowed for political parties the Justices,
in the majority decision, were dismissive of the question to the point of being
contemptuous to Swaziland’s stance in relation to the Constitution.
(5) Justice P.A.M. Magid, sitting together with Justices M.M. Ramodibedi,
J.G. Foxcroft and A.M. Ebrahim delivered a stunning majority judgment that
equated Swaziland in 2009 with the medieval politics of England.
(6) This, it turns out, was the sole basis on
which they refused to unpack the Constitution and interpret it in a manner that
brings Swaziland in line with the 21st century values which we all
live by today.
(7) They went further to compare Swazi politics
to the very repressive and failed political systems of East Germany and the
Soviet Union when Justice Magid declared: Democracy is, I would suggest, like
beauty, to be founding in the eyes of the beholder. Similarly, I suggest with Swaziland.
(8) Essentially what the eminent Justices of the
Supreme Court were telling us in this judgment was that they could not be
bothered to interpret the Constitution; that if Swaziland wants to create a
repressive society, then so be it.
(9) Again, the message sent by the judges here
is that, whereas it is well known that academics play a crucial role in shaping
the law, Swaziland has become so irrelevant to the world as we live in today to
the extent that academic thinking has no place in our society.
(10)
If
one reads this judgment in its abstract form, you have to agree with Justice
Albie Sachs’s quote earlier: every judgment is a lie, not in its content, but
in the story it tells.
(11)
If
we are to understand that the promulgation of the Constitution of 2005 sought
to change our way of life insignificantly, then it is fair to say that the judgment
is out of order. This point is
particularly reinforced by the fact that the issues brought to the Court at the
time had much to do with the question of fundamental rights.
(12)
To
discuss off-hand the question of fundamental rights, as the Court did, is
criminal. To rubbish academics, as the
judges did, simply because their views would not promote the agenda in this
judgment is treasonous. (My emphasis)
(13)
The
question, thus arises again: what does the appointment of these judges mean, in
real terms, to jurisprudence in Swaziland?
(14)
Can
Justices Sarkodie, Hlophe, Maphalala and Mazibuko do what justice Ngoepe said
was to ‘bring new minds to bear on issues .... not simply to rubber-stamp prior
judgments; be their masters voice?
(15)
What
ordinary Swazis now need is for the judiciary to begin to show us that this
Constitution is ours and that we can use it to better our lives.
(16)
The
tradition among judges of higher Courts has always been one of big men who live
mysterious lives away from ordinary folk; men to be feared and revered, whose
standing in society is much above even those of highest authority. In other countries, like South Africa, that
thinking has changed....
(17)
This
country desperately needs to see a judiciary that works to improve the people’s
lot. It is up to these men to join people like Justice Masuku in making this a
better country.
(18)
As
the controversial Judge John Hlophe of South Africa is quoted to have once
said: ‘Sesithembele kunina ke’.
(19)
The
judiciary, judges and lawyers need to play their role in the Constitutional
dispensation.”
The second article appeared in the Nation in February 2010. It was a comment piece written by Makhubu
with the headline ‘Speaking My Mind’.
(1) When Chief Justice
(name given) stood before his peers and the country as a whole at the official
opening of the High Court last month, and went into an unprecedented show of
beating his breast, Tarzan-style, calling himself a ‘Makhulu Baas’, I almost
wept. I am not sure whether I almost wept for the man himself or the levels to which
our judiciary has sunk.
(2) Here is a
man, honoured by King Mswati III ... behaving like a high school punk.
(3) Justice (name
given) whatever he might think of himself sunk to such a terrible low that day.
He stooped below the floor. What extra-ordinary
arrogance!
(4) Those of us
who take a keen interest in general issues know that a person of Ramodibedi’s
standing should behave with decorum .... Judges, by tradition, do not behave
like street punks.
(5) Ramodibedi’s
choice of words was very interesting. He
calls himself a ‘Makhulu Baas’, a word he dug up from the cesspit of apartheid
South Africa. He now comes to this
country to use it against us.... If Ramodibedi suffers from a hang-over of
apartheid he should not take it out on us.
(My emphasis)
(6) What is most
disturbing about Justice (name given)’s behaviour is that he was exercising his
authority mainly on his colleagues, the judges of the High Court. Not only did the Acting Chief Justice lower
his own stature, but he brought the whole house down.
(7) I do not know
Justice (name given) from a bar of soap... I do know some of the judges he
thought he was giving a dressing down and can say that in the time they have
practised on the Bench, they have behaved in a manner only to be expected of
people of their standing. Decorum, Your
Worship, decorum!
(8) Because
people of Justice Ramodibedi’s standing are appointed to office by King Mswati
III, I will probably never know how he was selected to this position. I can say, though, that from his remarks he
is a man who does not inspire confidence to hold such high office. How can we respect a man who speaks such
language as he did? (My emphasis).
(9) As it were
the judicial system in this country is in shambles. This is why you have such a high incidence of
murder yet nobody ever seems to stand trial.
(10) Justice (name
given) is a guest in this country.
Anyone who understands cultural etiquette will know that you do not just
walk into another man’s homestead and beat your breast telling everyone you are
the boss. It is downright rude.
(11) Because he is
a well educated man ... he will become the man he is most certainly not right
now.
(12) But above all,
he will know the Swazi people hitherto mistakenly believed by the rest of the
world to be submissive to blind authority (sic). He will then realise that Swazis are not
fools.
(13) Again I say
Justice (name given) must not misinterpret the silence to his remarks or think
that in getting his way he has beaten the judges of the High Court into line.”
See also
SOUTH AFRICA EDITORS BACK MAKHUBU
HIGH COURT SUPPRESSES MEDIA FREEDOM
MISA: EDITOR’S CONVICTION ‘BRUTAL’
EDITOR’S CONTEMPT SENTENCE ‘SHOCKING’
EDITOR
SET FOR TWO YEARS IN JAIL
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