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.
See also
PRESS FREEDOM AND THE NATION
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